IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 2596 of 2008(D) ------------------------------- AGAINST THE ORDER DATED 09/05/2008 IN CMP.3313/2007 AND CMP.3314/2007 of JUDL. FIRST CLASS MAGISTRATE COURT I, PEERUMEDU .................... REVISION PETITIONER: PETITIONER/COMPLAINANT: ------------------------------------------------------------------------------- JOSE RAJ, S/O.YESUDAS, KAILAS BHAVAN, KOCHUKARINTHARUVI KARA, ELAPPARA VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENTS:RESPONDENTS:ACCUSED: -------------------------------------------------------------------- 1. WILSON, S/O.SELVARAJ, PUTHENVEEDU, KOZHIKANAM KARA, ELAPPARA VILLAGE. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 2596 OF 2008 =========================== Dated this the 22nd day of September,2008 ORDER Petitioner is the complainant in a complaint filed under section 142(b) of Negotiable Instruments Act against first respondent before Judicial First Class Magistrate, Peermade. Complaint was filed along with an application, as provided under the proviso to Section 142(b) of N.I.Act to condone the delay. Learned Magistrte dismissed CMP 3314/2007 and refused to receive the complaint. The order is challenged in this revision petition filed under section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel appearing for petitioner is that though there was a delay of 72 days in filing the complaint, petitioner filed CMP 3314/2007 to condone the delay CRRP2596/2008 2 and to receive the complaint and learned Magistrate was not justified in dismissing the petition. It was argued that in the petition to condone the delay, it was specifically stated that petitioner had gone to the house of one of his relatives where he contracted jaundice and was under treatment and was advised not to move for three months and petitioner on returning to the house filed the complaint and therefore the complaint should have been received after condoning the delay. It was argued that though name of the Vaidyar was not mentioned in the petition, when examined before the court petitioner deposed that he was treated by one Das a relative who also knows the treatment for jaundice and he is prepared to examine the said Das and learned Magistrate was not justified in dismissing the complaint without granting an opportunity to examine the said Das. It was argued that the cheque is for Rs.40,000/- and in such circumstance, learned Magistrate should have condoned the delay and received the CRRP2596/2008 3 complaint and the order is to be quashed. 4. Under clause (b) of Section 142 of Negotiable Instruments Act learned Magistrate is competent to take cognizance of the offence only if a complaint is filed within one month from the date on which the cause of action has arisen. As provided under clause (c) of Section 138, cause of action arises on the failure of the drawer of the cheque, to pay the amount within fifteen days of receipt of the notice sent under clause (b). Admittedly complaint was not lodged within that period. It was filed after 72 days from the date on which the complaint should have been filed. Proviso to clause (b) of Section 142 was inserted by the Amendment Act 55 of 2002, which came into force with effect from 6.2.2003. The proviso provides that cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. Proviso thus enables the court to CRRP2596/2008 4 take a complaint on file provided the complainant satisfies that he had sufficient cause for not making the complaint within that period. It does not mean that a complaint is to be received in all cases irrespective of the delay if the complainant files an application to condone the delay. The delay could be condoned and the complaint be taken on file, only if the complainant satisfies the court that he had sufficient cause for not making the complaint within the period. It is for the complainant to plead and prove that he had sufficient cause for not making the complaint within such period. It is mandatory that petitioner shall plead the cause and satisfy the court that the said cause is sufficient enough for not filing the complaint within the period. 5. If petitioner was laid up and due to that cause he could not lodge a complaint within the period, it is for him to plead and prove that it was due to the said illness he could not lodge the complaint in time. Though petitioner contended in CRRP2596/2008 5 the petition that he was laid up due to jaundice and was advised by the Vaidhyar not to undertake the travel and therefore he could not file complaint within time, he did not mention the name of the Vaidhyar, who either treated him or advised him not to undertake travel. The argument of the learned counsel is that when his evidence was recorded, he deposed that he was treated by one Das one of his relatives who knows the treatment for jaundice and he also expressed his willingness to examine the said Das; but no opportunity was granted. An opportunity could have been granted if petitioner had pleaded that he was treated by the said Das. When petitioner did not mention even the name of the Vaidhyar in the petition and at the time of evidence deposed that he was being treated by one of his relatives, who even according to petitioner was not a Vaidhyar but only knows treatment, I do not find that this is a fit case to interfere with the impugned order to grant an opportunity to examine him. If the case spoken to CRRP2596/2008 6 by petitioner is truth, instead of alleging in the petition that he was treated by a Vaidhyar he should have pleaded that he was given medicine by one of his relatives who knows the treatment for jaundice and should have named that relative. In the absence of such disclosure it would be giving an opportunity to the petitioner to examine anybody at his will and pleasure. I do not find any reason to interfere with the impugned order. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006