IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.MC.No. 3275 of 2005 ------------------------- CC.194/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II,PUNALUR .................... PETITIONER: ACCUSED ---------------------- BENNY KOSHY, BENNY COTTAGE, EDATHARA, KALANJOOR P.O., PATHANAPURAM. BY ADV. SRI.S.RAJEEV SRI.K.V.VINOD KUMAR RESPONDENTS: COMPLAINANT -------------------------- 1. GEORGE THOMAS, S/O.MATHEW P.THOMAS, ANY VILLA, KOODAL P.O., KALANJOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 By PUBLIC PROSECUTOR MR. AMJAD ALI SRI.R.ARUN RAJ FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO. 12127/2005 IN CRL.M.C. NO. 3275 OF 2005 DISM ISSED. 9-12-2008 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO. 3275 OF 2005-D ========================= Dated this the 9TH DAY OF DECEMBER 2008 ORDER The petitioner is the accused in C.C.No.194 of 2004 on the file of the Judicial First Class Magistrate Court-II, Punalur. The first respondent herein initiated the proceedings against the petitioner under Section 138 of the Negotiable Instruments Act which was filed on 12-3-2003. The allegation against the petitioner is that the petitioner borrowed an amount of Rs.1,25,000/-from the first respondent and issued Ext.P1 cheque dated 23-12-2002 which was dishonoured by the Bank. Subsequently, the first respondent sent a notice to the petitioner on 13-1-2003 which was received by the petitioner on16-1-2003. The complaint was taken on file by the learned Magistrate and issued process to the first respondent. It was numbered as C.C.No.282 of 2003. Subsequently on 15-1-2004, the learned Judicial Magistrate of First Class-III, Punalur transferred C.C.No.282/2003 to the Judicial Magistrate of First Class -II, CRMC.3275/2005 -2- Punalur wherein it was renumbered as C.C.No.194 of 2004. On 23-7-2005, the first respondent herein filed proof affidavit and he was cross examined by the learned counsel for the petitioner herein on 23-8-2005. Then the case was posted for questioning under Section 313 of the Code of Criminal Procedure on 27-8-2005. On that day, the first respondent herein filed a petition under Section 311 of the Code of Criminal Procedure for recalling the complainant and to mark the delay condonation petition and the affidavit filed along with the complaint on 12-3-2003. The petitioner filed the objection on 31-8-2005. Thereafter, the learned Magistrate allowed that petition on 8-9- 2005 as revealed from a copy of the order which is marked as Annexure-V. Deposition of the first respondent herein/the complainant as PW1 is produced by the petitioner and marked as Annexure-VII. It is also alleged in the petition that the case was posted to 13-10-2005 for examination of the Doctor, who issued Ext.P9 Medical Certificate. At that stage this petition is filed on 6-10-2005 with a prayer to quash the complaint as it violated mandatory procedures under the Negotiable Instruments Act and to acquit the petitioner. CRMC.3275/2005 -3- 2. Heard the learned counsel appearing for the petitioner. It is submitted by the learned counsel for the petitioner that cognizance of the case was taken by the learned Magistrate without condoning the delay and without complying with the mandatory procedures. Hence, the entire proceedings in the case is an abuse of the process of the court and the complaint under Section 138 of the Negotiable Instruments Act will not lie. Proviso to Section 142(b) of the Negotiable Instruments Act reads as follows: “Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.” This proviso was inserted by Act 55 of 2002 with effect from 6-2-2003. The present complaint was filed by the first respondent before the Judicial First Class Magistrate Court-III, Punalur on 12-3-2003. Copy of the deposition of PW1, Annexure-VII and also the order in Section 311 petition would reveal that the delay condonation petition and the affidavit was CRMC.3275/2005 -4- filed by the complainant along with the main complaint. If that be so, the learned Magistrate should verify whether there is sufficient reason for condonation of delay and only if the complainant satisfies the court that he had sufficient cause for not making the complaint within the prescribed period, cognizance of the complaint can be taken. In the present case, the learned Magistrate has not condoned the delay so far and before that the complainant was examined as PW1. This is not proper and rather irregular. In the present circumstances and for the reason that the petition for condonation of delay has not been disposed of by the learned Magistrate, the complaint as such cannot be quashed as prayed for in this petition. The proper procedure is to dispose of the delay condonation petition after examining the Doctor who has issued the medical certificate, Ext.P9, and thereafter to take cognizance of the matter,if there are sufficient reasons to condone the delay. The Crl.M.C. is disposed of as above. M.C. HARI RANI JUDGE ks.