K. Mohan Ram, J.@mdashThe above Criminal Original Petition has been filed by the petitioner to call for the records comprised in C.C. No. 1295 of 2006 on the file of the Judicial Magistrate No. 1, Erode and to quash the same.
2. Though the respondent had been served and his name shown in the cause title, he is neither appearing in person nor through Counsel and hence in his absence the petition is being taken up for final disposal.
3. The brief facts that are necessary for the disposal of the above Criminal Original Petition are setout hereunder:
Since the cheque issued by the petitioner to the respondent herein was returned unpaid the respondent issued a statutory notice on 3.7.2006 which was served on the petitioner on 12.7.2006. The last date for filing a complaint u/s 138 of the Negotiable Instruments Act (hereinafter referred to us "the Act") was 26.8.2006, but admittedly the complaint came to be filed only on 6.9.2006 i.e. after the delay of 10 days. But the complaint was not accompanied with any petition to condone the said delay of 10 days, but yet the learned Magistrate had taken cognizance of the case as C.C. No. 1295 of 2006 and had ordered issue of process to the accused/petitioner herein. Contending that the said cognizance taken by the learned Magistrate in the absence of a petition to condone the delay and without passing any specific order condoning the delay is bad in law, the above petition has been filed to quash the proceedings in C.C No. 1295 of 2006.
4. Heard Mr. V. Ayyadurai, learned Counsel for the petitioner. Learned Counsel for the petitioner submitted that since the complaint has been filed after a delay of 10 days, the complainant should have filed a petition supported by an affidavit to condone the delay; on such petition being filed, the learned Magistrate should have issued notice to the accused/petitioner and only after giving an opportunity of hearing to the petitioner and only after condoning the delay, the complainant should have been taken on file; since the said procedure has not been followed, the cognizance taken by the learned Magistrate is liable to be quashed.
5. He further submitted that after quashing the proceedings no liberty can be given to the respondent to file a petition to condone the delay as it will amount to permitting the complainant/respondent to file a complaint on a second cause of action. Complainant/respondent to file a complaint on a second cause of action. In support of his above said contentions, the learned Counsel for the petitioner relied upon a decision of the learned Single Judge of this Court reported in
6. I have carefully considered the above submissions made by the learned Counsel for the petitioner. In the decision reported in Dr. S. Magalingam v. A. Ganesan, (supra), the correctness of entertaining a SLP in an appeal filed against the acquittal after the expiry of the period of limitation without a petition seeking condonation of delay was considered. It has been held in the said decision that the order passed in the SLP without condoning the delay in preferring such application and the order admitting the appeal is liable to be recalled. The learned Judge has also observed that the respondent (complainant), in the complaint filed for an offence u/s 138 of the Negotiable Instruments Act, will have to be given an opportunity to try a chance by filing an application u/s 5 of the Limitation Act for condoning the delay in preferring the Special Leave Petition.
7. It is no doubt true that in this case the complaint has been filed after a delay of 10 days and cognizance had been taken and process ordered to be issued, when admittedly the complainant had not filed a petition to condone the delay and without the Court condoning the delay. If there is any delay in filing a complaint, the complainant should file an application the learned Magistrate should issue notice to the respondent, after giving an opportunity of hearing to him and thereafter considering the cause shown for the delay, the learned Magistrate should satisfy himself first and pass appropriate orders by accepting or rejecting the petition, but the said procedure has not been followed by the learned Magistrate in this case.
8. By the failure on the part of the Court below to follow such a procedure the valuable right of the petitioner is affected. At the same time, it has to be pointed out that had the Court below pointed out to the complainant that the complaint could not be taken on file without a petition being filed to condone the delay, the complainant would have filed a petition seeking condonation of delay.
9. Therefore, this Court is of the considered view that ends of Justice will be met if the order of the learned Magistrate taking cognizance of the complaint and issuing process to the petitioner is set aside and the matter is remitted back to the learned Magistrate. The learned Magistrate shall give an opportunity to the respondent/complainant to file a petition to condone the delay of 10 days in filing the complaint and if any such petition in filed, notice should be ordered to the petitioner herein and after giving an opportunity of hearing to him appropriate orders should be passed in the petition seeking condonation of delay. If the delay is condoned then the learned Magistrate can take cognizance of the complaint and proceed further in accordance with law.
10. However the contention of the learned Counsel for the petitioner that if the impugned order of the learned Magistrate is set aside and liberty is given to the respondent to file a petition to condone the delay and even if the delay is condoned the learned Magistrate cannot take cognizance of the complaint because that will amount to entertaining a complaint on a second cause of action is untenable since there is absolutely no question of arising of a second cause of action in this case.
11. With the above directions, the Criminal Original Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed.
