IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1507 of 2008 Date of decision : August 10, 2009 Diwan Chand Shami ....Petitioner versus M/s Jawanda Enterprises Engineer ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. MK Singla, Advocate, for the petitioner Mr. Kuldeep Sanwal, Advocate, for respondent L.N. Mittal, J. (Oral) Accused Diwan Chand Shami has filed this revision petition assailing order dated 15.7.2008 passed by learned Additional Chief Judicial Magistrate, Patiala, whereby application of the petitioner-accused for dismissing criminal complaint Annexure P/1 filed by respondent under section 138 of Negotiable Instruments Act, 1881 (in short, the Act) read with section 420 IPC, as time barred, has been dismissed. I have heard learned counsel for the parties and perused the case file. Admitted facts are that the petitioner has been summoned for offence under section 138 of the Act and not for offence under section 420 Criminal Revision No. 1507 of 2008 -2- IPC. According to the complaint allegations, the cheque was dishonoured vide memo dated 13.10.2006. The complainant sent demand notice dated 9.11.2006. The complaint has been instituted on 12.1.2007. Respondent-complainant in paragraph no. 13 of the complaint alleged that the complaint could not be filed within prescribed period as the legal notice and postal receipts were not traceable due to rush of work because the same were attached with some other office file of the counsel and now when the counsel traced the same and handed over the same to the complainant, the complaint has been filed. Accordingly, prayer for condonation of delay in filing the complaint was made. From the aforesaid plea of the complainant-respondent in the complaint itself, it is manifest that the complaint is time barred. However, in view of proviso to section 142(b) of the Act, court has power to condone the delay if sufficient cause for the same is made out. In the instant case, learned trial Magistrate has observed that it is a matter of trial whether the complaint is time barred or not and it will be decided at final stage. Learned counsel for the petitioner contended that in view of averments in paragraph no. 13 of the complaint itself, since the complaint is time barred, the learned trial Magistrate should first decide whether there is sufficient cause for condonation of delay in filing the complaint or not and only thereafter the Magistrate should proceed with the trial. This contention is not opposed by learned counsel for the complainant- respondent. The contention has merit because if the delay in filing the complaint is not condoned, the complaint would be liable to be dismissed and the trial on merits would be futile. Criminal Revision No. 1507 of 2008 -3- In view of the aforesaid, impugned order dated 15.7.2008 of learned trial Magistrate is set aside and the trial Magistrate is directed to first decide whether the complainant-respondent has made out a sufficient cause for not filing the complaint within limitation. Only if the delay in filing the complaint is condoned, trial of the complaint on merit shall proceed. The revision petition is disposed of accordingly. ( L.N. Mittal ) August 10, 2009 Judge 'dalbir'