THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No. 1704 of 2009 ORDER: 1. This Criminal Petition is filed under Section 482 Cr.P.C. to quash all further proceedings in C.C. No. 202 of 2009 on the file of the XIX Additional Chief Metropolitan Magistrate, Nampally, Hyderabad. 2. The first respondent herein filed the complaint against the petitioner herein for the offences under Sections 138 and 142 of the Negotiable Instruments Act, 1881. Admittedly, there was a delay of 3 days in filing the complaint. So, the said complaint was returned by the trial Court. Thereafter, an application was filed to condone the delay, and the said petition was allowed without there being any notice to the petitioner herein. Challenging the same, the present petition is filed. 3. The learned counsel for the petitioner contended that when once the delay has not been explained in the complaint, the court has no jurisdiction to take cognizance in view of the fact that penal laws have to be observed strictly. He further contended that had the delay been explained in the complaint and if the court accepts the same, then it would be a different matter, but here is a case where the complainant specifically stated in the complaint that the complaint is filed within the period of limitation as prescribed under Section 142 of the Act, and hence, he prays to quash the impugned proceedings. 4. On the other hand, the learned counsel for the first respondent contended that the above aspects of the case can be decided by the trial court during trial, and hence, he prays to dismiss the criminal petition. 5. The learned counsel for the petitioner placed strong reliance on a decision reported in Thadi Chandrayya & others v. Vaitla Seethanna & another[1] wherein it is held thus: “In 41 Mad 701 (Kannuswami Pillai v. Jagathambal, (1919) 6 AIR Mad 1071=46 IC 265=35 MLJ 27), Sadasiva Ayyar, J. held that, when a Court of first instance has decided that a suit is beyond its jurisdiction it has no power to pass any other judicial order, except those which statute expressly empowers it to pass, such as an order returning the plaint for presentation to the property Court under O.7 R.10, Civil P.C. or an order awarding costs under S.35 of the Code. We agree with this statement. A court has no jurisdiction cannot pass orders in the suit beyond directing the plaint to be presented to the proper Court and giving a direction with regard to the costs incurred upto the time of the return of the plaint…” 6. The learned counsel for the petitioner also relied on a decision in D.ramamoorthy v. K.J. Duraisamy[2], wherein it is held thus: “Once initial presentation of the complaint is made, within time, and return, if any, made for rectification of the defects prescribing time, within which the defects to be rectified, then it goes without saying that the complaint so returned, shall be deemed to be within the custody of the Court.” 7. The learned counsel for the petitioner also placed strong reliance on a decision in Vinayagam & others v. Dr. Subhash Chandran & others[3] wherein it is held thus: “Law does not know or provide any other mode of dealing with the complaint, much less returning the complaint. It is not possible for a Magistrate to return the complaint for the so called defects and if the defects are there in the complaint, the complainant has to suffer. There is no warrant in the Criminal Procedure Code or the Criminal Rules of Practice, empowering the Magistrate to return the complaint just because he thinks that there are any defects. In this behalf, the observation by both the learned Judges that the Magistrate has a power to return the complaint because he has a power to accept is clearly incorrect. In the first place, the Magistrate does not have a "power" to accept the complaint. That is not the power of the Court. That is the "duty" on the part of the Court in contradistinction to its "powers". Again, unless there is a specific provision in the Code or the Rules, the Magistrate cannot find out his own procedure by returning the complaint as it is. In fact, when the complainant presents the case to the Magistrate that is not the stage of examining the defects and it is not for the Magistrate to examine the so called defects in the complaint. All that the Magistrate has to do is to consider the same by ordering the examination of complainant and/or as the case may be, his witnesses. It was strenuously suggested that if there are some formal defects like the age is not stated or the name of the father of the accused is not stated, the complainant should get a fair chance to correct the defects. We only observe that it is for the complainant to produce a defectless complaint, if because of such defects, such as non- mentioning of the age and names of father, etc. , the identity of the accused person becomes suspicious or is not established properly then, the complainant must suffer for his defective complaint, but, under no circumstances, could the Magistrate return the complaint, particularly after the Court-seal has been put on that complaint and the Court-fees stamps have been cancelled then, as rightly found by Janarthanam, J. , the complaint becomes the Court property.” 8. A complaint for the offence under Section 138 of the Act has to be filed in terms of Section 142 of the Act. If a complaint is not filed within the time fixed under Section 142 of the Act, it can be said that the court lacks jurisdiction to entertain the complaint. Of course, if the complainant reasonably explains the reason for the delay in filing the complaint, the court may accept it, in view of the amendment to Section 142 of the Act. In view of that proviso to Section 142 of the Act, if there is any delay in filing a complaint, necessarily the complainant has to explain the delay satisfactorily. If the court accepts sufficient cause as furnished by the complainant, then there is no difficulty in taking cognizance of the case. But, the question is when the allegations in the complaint are silent with regard to the explanation of the delay in filing the complaint within the time prescribed by law, can it be cured by subsequent application. 9. In the case on hand, the complaint is filed on 13.12.2004 and the same was returned on the same day with an objection that the complaint is barred by limitation. Then an application under Section 5 of the Limitation Act, 1963 read with proviso to Section 142 of the Act, is filed on 18.12.2004. That petition was allowed without notice to the respondent therein, who is petitioner herein. So, this aspect of the case has to be decided by the trial Court because no opportunity was admittedly given to the petitioner to raise objections. ‘When a complaint is filed beyond the period prescribed under Section 142 of the Negotiable Instruments Act, 1881 without any explanation for the delay, whether it can be cured by subsequent application,’ is the aspect to be adjudicated by the trial court. Therefore, without expressing any opinion on that aspect, the impugned order is set aside and the matter is remanded to the trial Court to consider the objections that may be raised by the petitioner in this regard. 10. Accordingly, the Criminal Petition is allowed. ---------------- 19.8.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No. 1704 OF 2009 Date: 19.08.2010 Between: V.Durga Bai …Petitioner And Suresh Kumar Shah & another …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No. 1704 of 2009 19.8.2010 [1] AIR 1940 Madras 689 [2] 1996 (1) ALT (Crl.) 152 (Mad.) [3] 2000 (Cri. L.J. 1579 (1)