1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:26.04.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD) No.209 of 2011 and M.P.(MD) No.1 of 2011 M.Pradeep :Revision Petitioner/Accused -Vs- Maria Jayasingh :Respondent/Complainant Criminal Revision Case is filed under Sections 397 and 401 of Criminal Procedure Code, praying to call for the records in C.M.P.No.4323 of 2010 dated 29.12.2010, on the file of the Judicial Magistrate No.II, Nagercoil and set aside the same. For petitioners: Mr.P.Prabhakaran For Respondent : Ms.Senthamil Selvi for Mr.S.Subbiah ORDER The revision petitioner is the respondent in C.M.P.No.4323 of 2010. The said petition has been filed by the complainant to condone the delay of 30 days in filing the complaint under Section 138 of Negotiable Instruments Act. 2.In the affidavit filed in support of the petition, it is averred by the complainant that after issuing the statutory notice, the complaint ought to have been filed on or before 17.05.2010, but on account of illness, the petitioner was not in a position to go to the office of his advocate to file the complaint and hence, the delay of 30 days has occurred and the said delay in filing the complaint is neither wilful nor wanton and hence, prayed for condonation of delay. 3.The said petition was strongly opposed by the respondent/accused by filing a counter stating that the medical certificate relied on by the petitioner has not been produced to sustain the reason and no proper and sufficient reason has been stated for condonation of delay and that the petition lacks merits and hence, prayed for dismissal of the petition. 4.The Court of Judicial Magistrate No.II, Nagercoil on taking into consideration the averments made in the affidavit filed in support of the petition and the counter has allowed the petition and thereby condoned the delay. Challenging the vires of the same, the present Criminal Revision Case is filed by the accused. 5.The learned counsel appearing for the revision petitioner would submit that though the lower Court in paragraph No.6 of the impugned order has stated the fact that the complainant should have examined the Doctor and filed the medical certificate, has failed to take into consideration the fact that https://hcservices.ecourts.gov.in/hcservices/ 2 neither the Doctor was examined nor the medical certificate was marked and in the absence of any evidence, the reason assigned by the lower Court is per se unsustainable and hence, prays for setting aside the impugned order. 6.The learned counsel appearing for the revision petitioner in support of his contention placed reliance on the decision of the Honourable Supreme Court in (1981) 1 Supreme Court Cases 495 - Ajit Singh Thakur Singh v. State of Gujarat, wherein it is stated as follows: "When a party allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case there was no such cause and the High Court erred in condoning the delay. The appeal was not filed at first because the State Government saw no case on the merits for an appeal, an it was filed only because the High Court had observed - and that was long after after limitation had expired - that the case was fit for appeal by the State Government." 7.Per Contra, Ms.Senthamil Selvi, learned counsel appearing for the respondent/complainant would submit that the trial Court taking into consideration of the fact that the delay is only 30 days in filing the complaint and also taking into consideration the other facts and circumstances has exercised its discretion properly and this Court while exercising the revisionary jurisdiction may not interfere with the said order. 8.The learned counsel appearing for the revision petitioner/complainant in support of her contention placed reliance on the judgment of this Court in MANU/TN/2202/2010 - S.K.A.P. Balakrishnan, represented by the Power Agent Mr.R.Ravichandran v. Jimmy, wherein this Court has taken into consideration the delay of 86 days in filing the complaint and has condoned the same. https://hcservices.ecourts.gov.in/hcservices/ 3 9.This Court carefully considered the rival submissions, perused the impugned order and also considered the decisions relied on by the respective counsel appearing for the parties. 10.No doubt, the respondent/complaint, who is petitioner in Crl.M.P.No.4323 of 2010 has not produced the medical certificate and has not chosen to examine the Doctor with regard to the delay of 30 days in filing the complaint. However, the trial Court taking into consideration the facts and circumstances of the case has exercised its discretion in a fair manner and condoned the delay in filing the complaint. In the considered opinion of the Court, the said exercise of the discretion on the part of the lower Court cannot be found unreasonable. However, taking into consideration the strong objection raised by the accused for condoning the delay of 30 days, this Court deems it fit and proper to direct the respondent/complainant to pay a sum of Rs.1,000/- (Rupees One Thousand only) to the revision petitioner on or before 27.04.2011. 11.With the above direction, this Criminal Revision Case is disposed of. Consequently, connected M.P.(MD) No.1 of 2011 is closed. Sd/- Deputy Registrar (Accounts) / TRUE COPY / Assistant Registrar To: 1.The Judicial Magistrate No.II, Nagercoil. 2.-Do- Thro' The Chief Judicial Magistrate, Kanyakumari District at Nagercoil. +1CC to Mr.P.Prabhakaran, Advocate. SR.No.15533. Sj RP/23.05.2011/3P/4C. Order in Crl.R.C.(MD) No.209 of 2011 and M.P.(MD) No.1 of 2011 26.04.2011 https://hcservices.ecourts.gov.in/hcservices/