IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 Crl.Rev.Pet.No. 800 of 2010() ----------------------------- ST.422/2007 of JUDICIAL FIRST CLASS MAGISTRATE - II, VARKALA .................... REVN. PETITIONER/ACCUSED:- ------------------------------------ MAYA RAJU, W/O. RAJU, CHARUVILA PUTHEN VEEDU, CHAVARCODE DESOM, CHEMMARUTHY VILLAGE, PARIPPALLI P.O. BY ADV. MR. JOHN JOSEPH VETTIKAD MR. C.JOSEPH JOHNY RESPONDENTS/COMPLAINANT & STATE:- ---------------------------------------------- 1. UMMADATH, AGED 47 YEARS, S/O.RAMACHANDRAN, ARAMANA HOUSE, CHAVARCODE DESOM, CHEMMARUTHY VILLAGE, CHAVARCODE DESOM, PARIPPALLI P.O., VARKALA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- Crl.R.P. No. 800 of 2010 ---------------------------------------------------- Dated this the 9th day of March, 2010. ORDER The revision petitioner is the accused in S.T. No. 422 of 2007 on the file of the Judicial First Class Magistrate -II, Varkala. The above S.T Case is a prosecution under Section 138 of the Negotiable Instruments Act, 1881 involving a cheque for Rs.3,00,000/-. The last date for filing the complaint was 10.02.2007. However, the complaint was filed on 02.03.2007. The complaint was not accompanied by a petition to condone the delay in filing the complaint. The learned Magistrate overlooking the fact that the complaint was filed out of time, took cognizance of the offence and issued process to the accused/ revision petitioner. After entering appearance, the revision petitioner did not raise the question of limitation. She reserved her right to raise the question of limitation at the stage of trial when the complainant was examined as PW1. Thereupon, the counsel for the complainant was alerted and he filed C.M.P. No. 911 Crl.R.P. No. 800/2010 : 2 : of 2009 to condone the delay of 20 days in filing the complaint. He also produced along with the petition, a medical certificate issued by one Dr.Rajan Chettiar, B.Sc., M.B.B.S of Lekshmi Nursing Home. The medical certificate is dated 01.03.2007. It says that the complainant was under his treatment for arthritis and back pain from 08.02.2007 to 01.03.2007. The learned Magistrate thereafter considered the delay petition and as per the impugned order dated 23.01.2010 condoned the delay after hearing both sides, but put the complainant on terms by directing him to pay a sum of Rs.2000/- by way of costs to the revision petitioner/accused. It is the said order which is assailed in this revision. 2. The learned counsel appearing for the revision petitioner assailed the impugned order contending, inter alia, as follows:- In 1986 KLT 218- Prabhakaran v. State of Kerala, this Court has held that if the prosecution was launched beyond the period prescribed under Section 468 Cr.P.C., Crl.R.P. No. 800/2010 : 3 : the court was obliged to hear the accused before condoning the delay without which the cognizance of the offence taken would be bad. In 1995 (1) KLT 350 - Kunhimuhammed v. Khadeeja, this Court held that no cognizance could be taken of the offence on a complaint filed beyond the period of limitation. In 2008 (13) SCC 229 - P.K. Choudhury v. Commander 48 BRTF (GREF) also, the Apex Court had remitted the matter back to the trial court for considering the question of limitation instead of quashing the entire proceedings as was done by the High Court in that case. The court below has not considered the delay on merits. A perusal of the medical certificate produced by the complainant will show that it is an antedated certificate ignoring the fact that the complainant was aged only 45 years in the year 2007 whereas the certificate shows his age as 47. 3. I am afraid that I cannot agree with the above submissions. No doubt, it is true that there is no advertence to the medical certificate or the case of the Crl.R.P. No. 800/2010 : 4 : complainant on merits in respect of the delay of 20 days. At the same time, the learned Magistrate has observed in the impugned order that a liberal view is called for in the matter of condonation of delay and that no prejudice has been caused to the accused in this case. 4. The decision reported in 2008 (13) SCC 229 - P.K. Choudhury v. Commander 48 BRTF (GREF) itself will show that if the delay has been condoned behind the back of the accused and cognizance was wrongly taken, the proper course would be to direct the court below to re-examine the question of limitation instead of quashing the entire proceedings. This is a case in which rightly or wrongly the complaint was not accompanied by a petition to condone the delay and was filed with a delay of 20 days. The petitioner raised the question of limitation only when the complainant was in the box and examined as PW1. It was the cross examination of the complainant which alerted the counsel for the complainant to file an application for condoning the delay as C.M.P. No. 911 of 2009. Crl.R.P. No. 800/2010 : 5 : 5. It is true that in a case where the complaint is filed beyond the period of limitation, the court cannot condone the delay without hearing the accused, nor can the court take cognizance of the offence behind the back of the accused without condoning the delay after giving the accused a reasonable opportunity of being heard. But, here it was a fait accompli and it was perfectly open to the revision petitioner/accused to raise the question of limitation after he entered appearance. He raised it only when the complainant was being cross examined on the merits of the complaint. There is no evidence to the effect that the age of the complainant was 45 in the year 2007 except the age mentioned in the complaint. But, that is without reference to any authentic record regarding his age. It is also not discernible from the medical certificate that it was an antedated certificate. But the fact remains that the complainant is stated to have been under the treatment of the doctor during the relevant period for arthritis and back ache. Crl.R.P. No. 800/2010 : 6 : 6. After the verdict of the Apex Court in AIR 1987 SC 1353- Collector, Land Acquisition, Anantnag v. Katiji, the courts have to approach the question of delay in a pragmatic and reasonable manner. The delay in this case was only 20 days and it cannot be said that the complainant was grossly negligent in not filing the complaint within the time stipulated by law. Admittedly, the complaint in this case was filed after the amendment of Section 143 as per which a right to condone the delay has been given to the Magistrate. Therefore, I do not find any illegality or irregularity in the order condoning the delay. This order is accordingly upheld and this revision is dismissed without prejudice to the right of the petitioner to contest the main matter on merits. Dated this the 9th day of March, 2010. V. RAMKUMAR, JUDGE. rv Crl.R.P. No. 800/2010 : 7 :