1 Criminal Writ Petition No.1055/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1055 OF 2010 Gopichand s/o Hanmantrao Chate Age 41 years, Occ. Business, R/o Chate House, Near N-2 Cricket Stadium, CIDCO, Aurangabad. ... PETITIONER VERSUS Entertainment Network (India) Ltd. through its authorised Mr. Rajat Lakhani, Age 32 years, Occ. Cluster Head (Rest of Maharashtra) of Entertainment Network (India) Ltd., Pune having its registered office at 4th Floor, A-Wing, Matulya Center, Senapati Bapat Marg, Lower Parel (West), Mumbai – 400 013 ... RESPONDENT ..... Shri V.M. Chate, Advocate for petitioner Shri P.S. Shinde, Advocate for respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 4th March, 2011 ORAL JUDGMENT : 1. Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing at admission stage. 2 Criminal Writ Petition No.1055/2010 2. The proceedings under Section 138 of the Negotiable Instruments Act were presented by the respondents vide Case No. 7945/2009 before learned Metropolitan Magistrate, 33rd Court at Ballard Pier, Mumbai on 25.6.2009. The learned Metropolitan Magistrate, while passing order below Exhibit 1 on the same day, found, it has no territorial jurisdiction and directed the complainant to present the complaint to proper Court in terms of Section 201(a) of the Criminal Procedure. 3. The complainant/ respondent herein presented the complaint before the learned Judicial Magistrate, First Class at Aurangabad on 28.7.2009. The learned Judicial Magistrate, First Class passed order below Exhibit 1 directing issuing summons on 6.8.2009. 4. The contention of the petitioner is, the period of limitation for a complainant provided under the Statute being of 30 days from serving statutory notice, it should have been adhered in its letter and spirit. If the respondent desired exclusion of limitation as is provided under Section 142-B (proviso) of Negotiable Instruments Act, such sufficient reason should have been explained by an application. 5. The third limb of submission was, the complaint at 3 Criminal Writ Petition No.1055/2010 Mumbai was presented by Kaizad B. Irani while the complaint at Aurangabad was presented by Mr. Rajat Lakhani, which according to the learned counsel, tantamounts to the second complaint and consequently, not maintainable. 6. Feeling aggrieved by the order dated 6.8.2009, Criminal Revision Application No.322/2009 was moved to the Additional Sessions Judge-4, Aurangabad, who did not agree to the contentions of the writ petitioner, by rejecting the same. Consequently present Writ. 7. The dates of presentation of complaint at Mumbai is 25.6.2009. The learned Metropolitan Magistrate, 33rd Court, Mumbai recorded order on 25.6.2009. The learned counsel for the respondent submits, the respondent had no knowledge of passing of said order, he received the complaint on 20.7.2009 and it was presented at Aurangabad on 28.7.2009 and perfectly within limitation. This argument appears to be hazy in nature, contrary to record, difficult to digest and conceive. Basically, the order below Exhibit 1 recorded by learned Metropolitan Magistrate shows, after hearing the counsel for complainant/ respondent (Page 88) the orders are passed. In view of this situation, it hardly applies that the complainant was made to believe to receive or to appear on 20.7.2009 for verification. Again this argument is not logically to be 4 Criminal Writ Petition No.1055/2010 accepted, as at Page 13 of the compilation the endorsement is in the form of stamp by Court staff without signature of the learned Metropolitan Magistrate, dated 25.6.2009. Learned Sessions Judge did not consider this basic aspect of the matter and wrongly went on to observe that the complaint was within limitation from the date of knowledge i.e. 20.7.2009 and the presentation dated 28.7.2009. 8. The second facet of the matter is, the learned Judicial Magistrate, First Class, at Aurangabad did not venture to the recitals of the complaint, even if paras 18 and 19 thereof demonstrate seeking exclusion of limitation. It was expected of the learned Judge before taking cognizance, to have considered that the complaint was barred in terms of Section 142 of the Negotiable Instruments Act lack of care by the learned Judicial Magistrate, should have been corrected by the Additional Sessions Judge. 9. The third aspect of the matter is, if the complainant desired exclusion of the limitation under the law he is bound to explain reasons for such delay by an application. Mere recital in the complaint to condone delay if any, itself would not be sufficient. The adversary is bound to feel prejudiced by such exercise. He need not be asked to dwell upon the contention in the complaint seeking condonation. Proviso to Section 142-b speaks of satisfaction of the Court, addressing sufficiency of cause for making complaint beyond 5 Criminal Writ Petition No.1055/2010 the period, such satisfaction should be subjective, needs to be spelt in letter and spirit by learned Judge passing order below Exhibit 1. These basic requirements are lacking in the present case. Consequently, the order dated 22.10.2010 of learned Additional Sessions Judge-4, Aurangabad in Criminal Revision Application No. 322/2009 and the order of learned Judicial Magistrate, First Class, Aurangabad, dated 6.8.2009 taking cognizance being barred by limitation, is set aside. The complaint is dismissed. Rule made absolute. K.U. CHANDIWAL JUDGE