1 HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 615 OF 2007 M/s. Neelkamal Constructions ... Petitioner. Vs. Shakil Haji Abdul Sayyed & Anr. ... Respondents. Mr. Madhav Jamdar for the Petitioner. Mr. R.S. Kate, for the Respondent No.1. Mr. Y.M. Nakhwa, APP for State/Respondent No.2. CORAM: A.S. OKA, J. DATE: 24TH APRIL, 2009. P.C. 1 The submissions of the learned counsel appearing for the parties were heard on the earlier date. The petition is taken up for final disposal. The petitioner is the accused in a complaint filed by the first respondent for an offence punishable under section 138 of the Negotiable Instruments Act, 1881. Alongwith the complaint, an application was made by the first respondent-complainant under the provisions of section 473 of the Code of the Criminal Procedure, 1973 (hereinafter referred to the “said Code”) for extension of period of limitation. The said application was rejected. The first respondent has filed a Revision Application for challenging the said order. By the impugned judgment and order dated 22nd December, 2006, the said order of the trial court was set aside and the application under section 473 of the said Code was allowed. 2 The learned counsel appearing for the petitioner invited my attention to the averments made in the application filed by the first respondent. He submitted that even going by the said averments, no case was made out for grant of extension of period of limitation by exercising the powers under section 473 of the said Code. My attention is invited to clause 5 of the operative part of the impugned order which records that the point of limitation shall be still open which will be decided on evidence. The learned 2 counsel appearing for the first respondent supported the impugned judgment and order. 3 I have given careful consideration to the submissions. Under the provisions of the Negotiable Instruments Act, 1881, a period of one month has been provided for taking cognizance of the offence under section 138 of the said Act. Section 473 of the said Code empowers the court to take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary to so do in the interests of justice. Only after the court records satisfaction as aforesaid, the Court can exercise the power under section 473 of the said Code to extend the period of limitation and thereafter proceed to consider the question of taking cognizance of the offence. 4 In the present case, learned trial Judge was of the view that no case was made out under section 473 of the said Code. The said order was challenged by the first respondent. The Sessions Court was expected to decide whether a case was made out by the first respondent for grant of extension of limitation in exercise of powers under section 473 of the said Code. The Sessions Court has set aside the order of the trial court. However, while doing so in paragraph 8 of the impugned judgment the learned Judge has observed the facts: “The Point of limitation can be considered even at the time of decision of the entire matter on merits in Trial Court as well as at the stage of disposal of appeal. It this is desirable then registration of the Applicants complaint is expected. Otherwise, there will be no trial of the matter on merits. Therefore, it follows to be proper to leave the parties at liberty to agitate this point at the subsequent stage of the proceeding if the grounds sworn in at the initial stage prima facie sufficient to satisfy the cause. Keeping the point of limitation open for further trial the Complainant could not have been prevented from registering the complaint. Hence the order of rejection passed by the Trial Court would deprive the 3 Complainant from agitating the point on proof of facts according to law.” 5 The learned Judge has relied upon the decision of this court, in the case of Sou. Surekha Sandip Hajare Vs. Instacomp, (2004 (2) Mh.L.R. 321). The learned Sessions Judge has ignored that the said judgment holds that at a later stage of the complaint it is permissible for the complainant to move an application for condonation of delay. Relying upon the said judgment, the learned Sessions Judge could not have kept the question of limitation open. He was under an obligation to go into the legality and validity of the order passed by the Magistrate on 9th June, 2006. He ought to have decided whether a case was made out to exercise power under Section 473 of the said Code. 6 In the circumstances, the only option left is to remand the revision application to the Sessions Court for deciding the same according to law in the light of the observations made in this order. 7 Hence, I pass the following order: i) The impugned judgment and order dated 22nd December, 2006 is quashed and set aside and Criminal Revision Application No.96 of 2006 is restored to the file of the Sessions Court. ii) The petitioner and the first respondent are directed to appear before the Sessions Court on 22nd June, 2009 at 11 a.m. iii) The Revision Application shall be heard and decided afresh in accordance with law in the light of the observations made in this order. iv) The Revision Application shall be disposed of expeditely. v) Rule is partly made absolute in above terms. JUDGE 4 HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 615 OF 2007 M/s. Neelkamal Constructions ... Petitioner. Vs. Shakil Haji Abdul Sayyed & Anr. ... Respondents. Mr. Madhav Jamdar for the Petitioner. Mr. R.S. Kate, for the Respondent No.1. Mr. Y.M. Nakhwa, APP for State/Respondent No.2. CORAM: A.S. OKA, J. DATE: 24TH APRIL, 2009. P.C. 1 For the reasons recorded separately in the judgment, the following order is passed:- i) The impugned judgment and order dated 22nd December, 2006 is quashed and set aside and Criminal Revision Application No.96 of 2006 is restored to the file of the Sessions Court. ii) The petitioner and the first respondent are directed to appear before the Sessions Court on 22nd June, 2009 at 11 a.m. iii) The Revision Application shall be heard and decided afresh in accordance with law in the light of the observations made in this order. iv) The Revision Application shall be disposed of expeditely. v) Rule is partly made absolute in above terms. JUDGE