1 crap394.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 394 OF 2011 Ramdas s/o Babasaheb Khade ...Applicant VERSUS Shivaji Rambhau Kshirsagar ...Respondent ..... Shri A.N.Nagargoje, advocate for applicant Shri K.S.Bhore, advocate for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 6 th July, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 The applicant has filed the present application under Section 482 of the Code of Criminal Procedure praying that the order passed below Exh.5 in S.C.C. No. 331 of 2009 on 27.10.2010 by learned Judicial Magistrate, First Class, Patoda, District Beed, be quashed and set aside; and alternatively prayed that the learned Trial Court be directed to decide 2 crap394.11 the said application preferred by the applicant for delay condonation before deciding the main complaint i.e. S.C.C. No. 331 of 2009. 3 Admittedly, the applicant herein is the original complainant and respondent herein is the original accused in S.C.C. No. 331 of 2009. 4 The applicant filed complaint under Section 138 of the Negotiable Instruments Act against the respondent under S.C.C. No. 331 of 2009 on 14.10.200, for the alleged dishonour of cheque on 9.7.2009 for an amount of Rs.1,65,000/-, issued by the respondent to him, with the endorsement, "Exceeds arrangements". 5 Pursuant to the dishonour of the said cheque, the applicant issued demand notice to the respondent on 5.8.2009 through advocate by Regd. Post and demanded the amount of the said cheque within 15 days from the date of receipt thereof. It is the contention of the applicant that the said notice was received by the respondent on 17.8.2009. However, the respondent failed to pay the amount of the said cheque to the applicant within the period of 15 days from the date of receipt of the said notice. However, thereafter the applicant herein filed the complaint against the respondent on 14.10.2009, and apparently, there was delay of 12 days in filing the said complaint. Hence, the applicant preferred application for delay condonation along with the said complaint under Section 5 of the Limitation Act r/w Section 142(b) of the Negotiable Instruments Act. 3 crap394.11 5 Learned Trial Court issued notice of the said application to the respondent and the respondent appeared therein and opposed the said application. Considering the rival submissions, learned Trial Court passed the impugned order on 27.10.2010. Being aggrieved and dissatisfied by the said order, the applicant has preferred the present application. 6 On perusal of the contents of the impugned order, apparently it appears that the learned Trial Court has recited the proviso of Section 142 (b) of the Negotiable Instruments Act therein and observed that the application for delay condonation would be considered at the time of taking the cognizance of the main complaint. Accordingly, while passing the operative part of the said order, learned Trial Court rejected the said application by 1st clause of the operative part of the order; whereas by 2nd clause of the operative part of the order it was directed that said application Exh. 5 for condonation of delay would be considered at the time of hearing of main complaint i.e. Exh.1 and both the said clauses i.e. clause no.1 and clause no.2 of the operative part of the said order are, apparently, contrary to each other. Hence, the impugned order, dated 27.10.2010 deserves to be quashed and set aside and the matter requires to be remitted back to the Trial Court to decide it afresh on merits. 7 In the result, present application is allowed and the impugned order, dated 27.10.2010 passed below Exh.5 in S.C.C. No. 331 of 2009 by learned Judicial Magistrate, First Class, Patoda stands quashed and set 4 crap394.11 aside and the matter is remitted back to the Trial Court, with direction to decide the said application Exh.5 afresh, in accordance with law, and present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap394.11