IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 Crl.Rev.Pet.No. 2043 of 2005() ------------------------------ CRMP.2678/2005 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER/COMPLAINANT --------------------- KARUNAKARAN, S/O. VELU, MULLOOR HOUSE, THRIKKANARVATTOM, ERNAKULAM DIST. BY ADV. SRI.P.N.SUKUMARAN RESPONDENTS/STATE & ACCUSED --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUNILKUMAR, S/O. KUMARAN, NARANATH HOUSE, NEAR KRISHNA SWAMY TEMPLE, ELOOR FERRY ROAD, UDYOGMANDAL. PUBLIC PROSECUTOR SRI.SABU SREEDHAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX IN CRL.R.P.NO.2043 OF 2005 ANNEXURE I: RUE COPY OF THE COMPLAINT FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ON 01/06/2005. ANNEXURE II: TRUE COPY OF LETTER DATED 20/03/2005 ISSUED TO THE POST MASTER, HEAD POST OFFICE, ERNAKULAM. ANNEXURE III: TRUE COPY OF LETTER DATED 04/05/2005 ISSUED TO THE SENIOR SUPERINTENDENT OF POST OFFICE, ERNAKULAM DIVISION. ANNEXURE IV: TRUE COPY LETTER DATED 25/5/2005 ISSUED BY MANAGER, CUSTOMER CARE DIVISION, ERNAKULAM. ANNEXURE V: TRUE COPY OF THE APPLICATION IN CRL.M.P.NO.2678 OF 2005 BEFORE THE CJM COURT, ERNAKULAM. ANNEXURE VI: CERTIFIED COPY OF THE ORDER DATED 08/07/2005 IN CRL.M.P.NO.2678 OF 2005 BY THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. // True Copy// PA to Judge M.C.HARI RANI, J * * * * * * * * * * * * Crl.R.P.No.2043 of 2005 ---------------------------------------- Dated this the 22nd day of June 2011 O R D E R Petitioner in Crl.M.P.No.2678/2005 is the revision petitioner. That petition was filed to condone the delay of 46 days in lodging the complaint. The complaint was filed under Section 138 of the Negotiable Instruments Act. The learned Chief Judicial Magistrate, Ernakulam dismissed the petition as per order dated 08/07/2005. That order is challenged by the revision petitioner by filing this revision petition. 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 3. The learned counsel for the revision petitioner contended that the reasons for the delay in filing the complaint were properly explained by the petitioner in the affidavit filed in support of the petition which were not considered by the learned Magistrate in a proper perspective which lead to miscarriage of justice. It was sworn in the affidavit that after the receipt of the dishonoured memo from the bank, he send a registered notice to the accused on 26/2/2005 through the Head Post Office, Crl.R.P.No.2043/2005 2 Ernakulam. But the acknowledgment card evidencing the receipt of the notice by the accused was not received by the petitioner and he has preferred complaints before the postal authorities and made personal enquiries also. He obtained a letter on 16/4/2005 from the Manager, Customer Care center, Ernakulam whereby he was informed that the matter is being enquired into. Subsequently, he persuaded the matter through his lawyer by filing complaint on 04/05/2005 to the Senior Superintendent of Post Offices, Ernakulam. Then on 28/5/2005, he received a letter from the Customer Care centre, Ernakulam that the registered letter issued to the accused was delivered on 01/03/2005. After receipt of information from the postal authorities that the notice was delivered to the accused on 01/03/2005 which was intimated to the complainant only on 28/5/2005, the complaint was filed before the concerned court on 02/06/2005 along with petition to condone the delay. 4. As per the proviso to Section 142(b) of the N.I.Act which was inserted by Act 55 of 2002 came into effect from 06/02/2003, cognizance of a complaint under Section 138 of the Negotiable Instruments Act may be taken by the court even after Crl.R.P.No.2043/2005 3 the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within the period specified in Section 142(b). In the present case sufficient reasons for the delay in filing the complaint were specifically stated by the petitioner in the affidavit filed in support of the petition. But the learned Chief Judicial Magistrate mistakenly overlooked the reasons stated therein and also the amended provisions of Section 142(b). It is not proper rather justifiable to dismiss the complaint for the fault on the part of the postal department and without any willful default on the part of the petitioner/complainant. 5. Accordingly, I found that this Court should definitely interfere with the order passed by the learned Chief Judicial Magistrate in Crl.M.P.No.2678/2005 and that order is set aside. The matter is remanded to the court of the Chief Judicial Magistrate, Ernakulam and is directed to proceed with the complaint in accordance with law. The complainant shall appear before that court on 25/7/2011. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.2043/2005 4 Crl.R.P.No.2043/2005 5 Crl.R.P.No.2043/2005 6 Crl.R.P.No.2043/2005 7 M.C.HARI RANI, J Crl.R.P.No.504 of 2001 ORDER 17th DAY OF JUNE 2001 Crl.R.P.No.2043/2005 8