IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Crl.Rev.Pet.No. 299 of 2008 ----------------------------- CRA.210/2007 of III ADDL.SESSIONS COURT, KOLLAM ST.39/2006 of JFCM-IV, KOLLAM .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- KAMALABAI, PROPRIETRESS DELTA LEARNING AND TEACHING PRODUCTS KOTTIYAM P.O., RESIDING AT SREEKANTHAM ANAKUZHI, KOTTIYAM EAST P.O. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.PRABHU VIJAYAKUMAR SRI.SHAJIN S.HAMEED RESPONDENTS: RESPONDENT/COMPLAINANT ----------------------------------- 1. MR. R.RAJENDRAN, AYIRATHEZHIKAM MULLUVILA CHERRY, VADAKKEVILA VILLAGE, KOLLAM. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. M.S. BREEZE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/03/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No. 299 of 2008 = = = = = = = = = = = = = = Dated this the 19th day of March , 2008 ORDER Revision petitioner was the accused in S.T.No.39/2006 on the file of the Judicial First Class Magistrate Court-IV,Kollam which was a prosecution under Section 138 of the Negotiable Instruments Act, 1881 involving a cheque for sum of Rs.1,00,000/-. Since the complaint was filed beyond the period of limitation, the complainant had also filed C.M.P.No.947/2004 for condoning the delay in filing the complaint. However, without noticing the delay in filing the complaint, the complaint was taken on file and tried and the revision petitioner was convicted as per judgment dated 23-3-2007. On appeal preferred by the revision petitioner as Crl.A.No.210/2007 on the file of the Sessions Court, Kollam, the IIIrd Additional Sessions Judge as per the impugned judgment dated 31-12-2007 set aside the judgment of the trial court holding that the cognizance taken in the case was illegal for the reason that the Magistrate had failed to notice that the complaint was filed out of time and the CRRP 299/2008 -2- petition to condone the delay was not ordered. It is the said remand order which is assailed in this revision. 2. Learned counsel appearing for the revision petitioner made the following submissions in support of the revision. The lower appellate court having noted that the cognizance was illegal and which was the finding was consistent with Section 461(l)Cr.P.C., should not have exercised the power under Section 386 Cr.P.C.to order a fresh trial when the cognizance itself was null and void. ] 3. I cannot agree with the above submission. No doubt, the complaint was filed beyond the period of limitation. By virtue of the proviso to Section 142(b) of the Negotiable Instruments Act, power is conferred on the Magistrate to condone the delay, in case the complainant satisfied the court that he had sufficient cause for not filing the compliant within the period stipulated under clause(b) of Section 142 of the N.I.Act. Even though the cognizance taken without condoning the delay was bad, the proper course open to the lower appellate court was to set aside the judgment as well as the cognizance taken and to remit the CRRP 299/2008 -3- case back to the trial court for fresh disposal after passing orders on C.M.P.No.947/2004. It goes without saying that the revision petitioner will have an opportunity to contest C.M.P.No.947/2004. In case after hearing both sides, the learned Magistrate decides to condone the delay then only will he have the jurisdiction to take cognizance of the offence. I, therefore, do not find any good ground to interfere with the remand order. This Crl. revision petition is accordingly dismissed. V. RAMKUMAR, JUDGE ks.