1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No. 202 of 2008 Dilip Bhaskar Nimbalkar Petitioners Versus Indual Bhagwan Chavan and another Respondent ... Smt. U.T. Pathan, Advocate holding for Mr. T.W. Pathan, Advocate for the petitioner Respondent No.1 though served, absent. Mr.V.D. Rakh, A.P.P. for the respondent No.2 / State ... CORAM : A.V. NIRGUDE, J. DATE : 31st March, 2010 PER COURT : 1. Heard. 2. This Writ Petition is filed against the order dated 8th February, 2008, passed by the Judicial Magistrate, First Class, Chalisgaon, on Exh. 04, in Summary Criminal Case No. 1192 of 2007. The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent No.1, who is served, but has not come before this Court to oppose this petition. Rather belatedly, the petitioner realized that the complaint was lodged after expiry of period limitation and there was a delay of one day, and so, after three months from the date of filing of the complaint, the petitioner filed an application seeking condonation of delay of one day.(Exh. 04) He said that he could 2 not reach the Court in time, because he was not well and was suffering from malaria. The petitioner, however, did not file an affidavit in support of this application, but filed a medical certificate showing that he was not well during the relevant time. The learned Judicial Magistrate, First Class, rejected the application mainly because of two reasons, first; that the application was made belatedly, and second; there was no affidavit in support of the application. In my view, the learned Judicial Magistrate, First Class, took rather pedantic approach in dealing with this application. The learned Magistrate could have certainly asked the petitioner to file an affidavit in support of his case, and thereby, could have cured the formal defect in the application. The delay in filing of this application is really not material, because it was necessary to file an application seeking condonation of delay. When such application is filed is hardly of any importance. In any case, on facts, it cannot be said that the application was filed after inordinate delay. The learned Magistrate mentioned that the application seeking condonation of delay should have been filed alongwith the complaint, and that, the defect in the complaint was detected at the time of arguments on issuance of process, and, such application was filed as an afterthought. The learned Magistrate ignored one important fact that though the complaint was filed, the complainant was heard on the question of issuance of process, yet the process was not issued. It is clear that the process was not issued mainly because there occurred delay of one day in filing of the complaint. So, since the respondent / accused was not before the Court, the delay in filing of the application has not caused any prejudice 3 or inconvenience to him. So, the appreciation of the facts by the learned Magistrate in deciding this application is grossly defective, and I am inclined to not only set aside the order, but I am also inclined to condone the delay. 3. The Writ Petition is allowed. The delay caused in filing Summary Criminal Case No. 1192 of 2007 stands condoned. [ A. V. NIRGUDE, J. ] srm/criwp202.08/ok