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TMI Blog2024 (6) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint was presented and it was stated that the same was within time. 5. The learned Magistrate, on 09.10.2013, passed an order in the following terms: "Complainant present. Perused the complaint and the documents. Cognizance is taken. Office to register the case as PCR and put up for sworn statement by 06.03.2014." 6. On 23.05.2014, the complainant filed an affidavit in lieu of his in sworn statement and the learned Magistrate heard the complainant before passing an order in the following terms: "ORDERS The complainant filed the complaint U/s.200 of Cr.P.C. alleging that the accused has committed offence punishable U/s.138 of Negotiable Instrument Act. It is the case of the complainant that the accused has borrowed a sum of Rs.5,40,000/- from him. To repay the same, the accused has issued a post-dated cheque for Rs.5,40,000/-, the said cheque was dishonored for 'insufficient funds' in the account of the accused. The affidavit of the complainant is received in lieu of sworn statement. The complainant in his sworn statement deposed in line with the complaint averment produced the xerox copy of cheque, endorsement, legal notice, Postal Receipt, Unserved R.P.A.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were provided to adduce evidence and to submit their arguments on application. Heard both side. According to complainant there is delay of 2 days in presenting complaint, according to accused there is delay of 30 days. Complainant submitted that she was suffering with viral fever, hence she was unable to present complaint within time. In support of her plea she produced medical certificate, wherein it is stated that complainant suffered viral fever and she was under treatment from 04.10.2013 to 07.10.2013, it means she was not well to present complaint within time. According to accused there is delay of 30 days, 15 days period from date of service of notice is not required because notice sent to accused returned as unclaimed. Defence of accused is not acceptable, because even notice returned as unclaimed, mandatory period of 15 days shall be provided to accused to make necessary arrangements. There is only delay of 2 days in presenting complaint and delay is purely bonafide, hence following ORDER Application filed U/s 142 of NI Act, is allowed. Delay of 2 days in filing complaintis condoned. Issue NBW against accused. Call on 26.12.2018". 9. The petitioner has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was thus a delay of two days. 13. The question that has been raised by the accused is whether the learned Magistrate could not have taken cognizance of the offence without condoning the delay, since Section 142(1)(b) bars the Court from taking cognizance if the complaint is made beyond one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the NI Act. 14. It is submitted that the cognizance in respect of a belated complaint can be taken after the aforementioned period of 30 days, only if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the prescribed period. It is also sought to be contended that an application seeking condonation of delay by way of an affidavit ought to have been filed, but in the instant case, only an application has been filed stating that the complainant was suffering from viral fever and this did not satisfy the requirement of the manner in which condonation of delay could be sought. 15. Section 142(1)(b) of NI Act reads as follows: "142. Cognizance of offences.-(1)(b)such complaint is made within one month of the date onwhich the cause of action ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act No. 55 of 2002 that a proviso was inserted empowering the Magistrate to take cognizance of the offence even when there was a delay, if the complainant satisfied the Magistrate that he had sufficient cause for such delay. 20. Since Section 142 (1)(b) originally did not provide for taking cognizance of a belated complaint, the argument that the Magistrate was required to condone the delay before taking cognizance and, until then, he did not possess jurisdiction, cannot be a valid argument. If a Magistrate is empowered to condone the delay in presenting the complaint and then take cognizance, the mere fact that he took cognizance first and then condoned the delay would be of little consequence. It is only if the Magistrate does not condone the delay at all during the pendency of the proceedings and goes on to adjudicate the matter will the proceedings be vitiated. 21. In fact, the Apex Court in the case of Pawan Kumar Ralli (Pawan Kumar Ralli v. Maninder Singh Narula, (2014) 15 SCC 245), while dealing with the case in which the High Court had quashed the proceedings on the ground of limitation, has observed that with a view to obviate the difficulties from a part of the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This order of the learned Magistrate reserving liberty to the accused and noticing that the cognizance had been taken, even though there was a delay, has been accepted by the accused and has not been challenged. The petitioner has presented this petition four years thereafter, when orders have been passed by the learned Magistrate condoning the delay in presenting the petition. 26. In my view, in light of the fact that the learned Magistrate has ultimately condoned the delay, no prejudice has been caused to the accused by the cognizance already taken. Even if the contention advanced by the petitioner is accepted, all that would have to be done is to set aside the order taking cognizance and call upon the learned Magistrate to consider the application of condoning the delay and then consider the question of taking cognizance. Since in the instant case the complaint is of the year 2013 and the matter has been pending for more than 11 years, there would be no justification in considering this plea of the petitioner. Furthermore, since the delay of merely 2 days in filing the complaint has already been condoned, the cognizance taken, though irregular, cannot be found fault with, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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