IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 Crl.Rev.Pet.No. 3104 of 2008() ------------------------------ CMP.227/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... REVN. PETITIONER(S): --------------------- S.RAJENDRA KUMAR, AGED 42 YEARS, S/O SAMPATH RAJ, FINANCIER, NO.5, BASIN WATER WORKS , ST. SOW CARPET, MADRASS 600079 AGENTS OFFICE AT AMRUTHA AUTO CONSULTANCY, CHUNGAM, THAMASSERY. BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DR. P.IBRAHIM KUTTY, S/O ALAVIKUTTY, PALIYATHALTHODI, KUNNAPPILLY P.O., PERINTTALMANNA MALAPPURAM. ADV. SRI.U.K.DEVIDAS FOR R2 PUBLIC PROSECUTOR MR. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P.NO. 3104 of 2008 * * * * * * * * * * * * * * * * * * Dated: 17th day of March, 2010 ORDER The revision petitioner is the complainant in a private complaint filed as C.M.P. No. 226 of 2007 alleging an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881, involving a cheque for Rs. 4,00,000/-. Since the complaint was filed beyond the period of limitation with a delay of 62 days, the petitioner had also filed C.M.P. 227 of 2007 for condoning the delay. According to the petitioner, he was laid up at Chennai due to Jaundice from 10-11-2006 and was advised bedrest and he had also produced a medical certificate in support of that. The accused entered appearance and filed a counter affidavit opposing the delay. The learned Magistrate passed the impugned order dated 11- 6-2008 dismissing the application to condone the delay holding inter alia that there is no cogent explanation for the long delay and that the petitioner has not cared to produce even a scrap of paper to show that he was laid up during the Crl.R.P.NO. 3104 of 2008 -:2:- relevant time. 2. Eventhough the learned counsel appearing for the respondent /accused argued that the order passed by the court below does not call for any interference, I cannot agree with the said argument. As a matter of fact, the petitioner had produced a medical certificate from the doctor concerned showing that the petitioner was laid up with jaundice. Hence, the observation made by the learned Magistrate that the petitioner has not cared to produce even a scrap of paper in support of the delay is virtually incorrect. The court has not given due consideration to the question of delay. Applying the ratio in Collector, Land Acquisition, Anantnag and Another v. Mst. katiji and Others - AIR 1987 SC 1353 it cannot be said that the petitioner was guilty of gross laches in not filing the complaint in time. Hence, the delay of 62 days in filing the complaint is condoned. The impugned order is set aside and the delay of 62 days in filing the complaint is condoned. The learned Magistrate shall proceed with the complaint namely C.M.P. 226 of 2007 in accordance with law. Parties shall appear before the Magistrate on 5-4-2010 without any further notice. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ P.S. to Judge Crl.R.P.NO. 3104 of 2008 -:3:- ani.