IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 Crl.Rev.Pet.No. 2761 of 2007() ------------------------------ CRMP.3070/2006 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER/COMPLAINANT/PETITIONER --------------------------------------------------------------------- M/S.MUTHOOT LEASING AND FINANCE LTD, MUTHOOT CHAMBERS, BANERJI ROAD, ERNAKULAM REP: BY ITS POWER OF ATTORNEY HOLDER: WILSON GEORGE. BY ADV. SRI.SABU S. KALLARAMOOLA RESPONDENTS/ACCUSED/COUNTER PETITIONER ----------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SATHAR P.T., POTHIYIL THOTTIPARAMPIL, THAZHEKODE P.O., PERINTHALMANNA, MALAPPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN R2 BY ADV. SRI.M.K.ABOOBACKER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/09/2011, ALONG WITH CRRP NO. 2764 OF 2007 CRRP NO. 2763 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 2761 of 2007() ------------------------------------------- APPENDIX ---------------- PETITIONER'S ANNEXURE ------------------------------------- ANNEXURE I. ORDER DT. 27.2.2007 IN CRL.M.P.NO.3070 OF 2006 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. / TRUE COPY / P.A. TO JUDGE VK S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.Nos.2761, 2763 & 2764 of 2007 ----------------------------------------------- Dated this the 5th day of September, 2011 O R D E R These revisions have been filed by the common complainant, challenging the orders of the learned Chief Judicial Magistrate, Ernakulam, dismissing three of his complaints, all of them filed, to prosecute the accused named therein for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}, with petitions to condone delay in entertaining such complaints. The learned magistrate, not being satisfied of the grounds raised for condoning the delay, dismissed the petitions and consequently, the complaints were also turned down. Feeling aggrieved, these revisions have been filed by the complainant. 2. Notice given, the accused named in two of the complaints, covered by Crl.R.P.Nos.2761/07 and 2763/07 have entered appearance. Crl.R.P.No.2761 of 2007 & Con.cases :: 2 :: 3. I heard the counsel for the complainant and also the respective counsel appearing for the respondent/accused, as covered by Crl.R.P.Nos. 2761/07 and 2763/07. 4. The delay in filing the complaint in the three complaints varied from 8 days to 25 days. Complainant is a leasing and financial company. The reasons set out in its application for condoning the delay was that the clerk, dealing with the files relating to the transaction, was on leave on account of his illness and, by the time the files were traced out, the delay had occurred. The learned magistrate was not satisfied with the cause so pleaded for condonation of the delay for the reason that there were some discrepancy in the averments made in the affidavit sworn to in support of the petitions for condonation of delay and also that no record was produced to show that the clerk concerned who dealt with the files was Crl.R.P.No.2761 of 2007 & Con.cases :: 3 :: on leave due to his illness. Though the learned counsel appearing for the respondent/proposed accused in Crl.R.P.Nos.2761/07 and 2763/07 vehemently canvassed that the reasons set out by the learned Chief Judicial Magistrate, to hold that condonation of delay is not allowable, do not warrant interference, I find that the approach made by the learned magistrate is totally unjustified. It is not the technical objection that could be pitted against the reasons spelt out for condoning the delay that has to be looked into. The statute permits entertaining of a complaint under Section 138 of the Act, after condoning the delay, where sufficient cause is shown. Complainant is an incorporeal person, which could have filed the complaint only through the assistance of human agency. When an affidavit is filed that the clerk who dealt with the files of that company, apparently, there was Crl.R.P.No.2761 of 2007 & Con.cases :: 4 :: no reason to doubt the intrinsic worth of the averments so made in the affidavit. Even assuming that there was some discrepancy in the number of days where the delay was less than 25 days, it was a case where such delay could have been condoned on terms. When the statute permits entertaining of a complaint under Section 138 of the Act, as indicated earlier, even after the expiry of the period stipulated, a liberal approach, having regard to the fact that the complainant company would not have gained anything by delaying the matter, should have weighed with the court in examining the merit of the petitions moved by it for condoning the delay. 5. I find, in the given facts of the case, the impugned orders passed by the court below are liable to be set aside, subject to terms. Petitioner/company shall pay costs of Rs.500/- Crl.R.P.No.2761 of 2007 & Con.cases :: 5 :: each to the respective 2nd respondent in Crl.R.P.Nos.2761/07 and 2763/07, within three weeks from today, as a condition precedent for condoning the delay. Costs so ordered shall be paid to the counsel appearing for those respondents before this court and memo of acknowledgement evidencing such payment shall be produced before the Chief Judicial Magistrate, Ernakulam. 6. So far as the 2nd respondent in Crl.R.P.Nos.2764/07, no costs need be paid, as he has not entered appearance. If costs, as ordered above, is paid within the time stipulated above, and memo evidencing such payment is produced within a period of three weeks from today, before the Chief Judicial Magistrate, that court shall take back the complaints and dispose of the same, in accordance with law. If costs, as indicated above, is paid, the delay shall be treated as condoned. Crl.R.P.No.2761 of 2007 & Con.cases :: 6 :: Revisions are disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.