The legal heirs of the deceased Venkatesan, who has filed the above S.T.C. No. 3 of 2008 under Section 138 of The Negotiable Instruments Act, have come forward with this Criminal Revision Case challenging the order dated 22.04.2010 passed in CMP No. 223 of 2010 in STC No. 3 of 2008 by the learned Judicial Magistrate No.III, Salem. By the said order dated 22.04.2010, the trial Court dismissed the application filed by the petitioners under Section 142 of Cr.P.C. refusing to condone the delay of 10 days.

2. According to the petitioners, the husband of the first petitioner has given a sum of Rs.70,000/- to the respondent/accused as loan for meeting her urgent family expenditure. On receipt of the loan amount, the respondent/accused promised to repay the amount together with interest. When the husband of the first petitioner demanded the repayment of the amount, the respondent/accused issued a cheque dated 18.08.2005 for a sum of Rs.70,000/-. When the cheque was presented for encashment, it was dishonoured for want of funds on 23.08.2005. The husband of the first petitioner therefore sent a notice on 24.08.2005, which was received by the respondent/accused on 05.09.2005. On receipt of the notice, the accused/ respondent sent a reply notice dated 26.09.2005 containing false and frivolous averments. Thereafter, the complainant viz., the husband of the first petitioner, filed the above said S.T.C. No. 3 of 2008 under Section 138 of the Negotiable Instruments Act. Pending the S.T.C. No. 3 of 2008, the husband of the first petitioner and also the complainant died on 12.07.2008. On his death, the petitioners were impleaded as legal heirs in S.T.C. No. 3 of 2008. During the course of trial, the power of attorney, representing the petitioners, examined himself as a witness on 11.12.2009 and he was cross-examined on 16.12.2009. When the complaint was posted for defence witnesses, the present petition has been filed under Section 142 (b) of The Negotiable Instruments Act to condone the delay of 10 days in filing the complaint.

3. The learned counsel for the petitioner would contend that only at the time of trial in the complaint, it came to light that there was a delay of 10 days in filing the complaint. Even during the cross-examination, the power agent representing the petitioners have given reasons for not filing the complaint in time. Even the Court below has entertained the complaint and the trial in the complaint has commenced. Therefore, only to cure the defect, the present petition has been filed. In any event, adequate reasons have been assigned in the petition filed under Section 142 of The Negotiable Instruments Act for the delay in filing the complaint. The delay is not huge or unexplained and therefore, the Court below ought to have allowed the application as prayed for.

4. On the contrary, the learned counsel for the respondent would contend that the application under Section 142 of The Negotiable Instrument Act has been filed without a petition supporting the affidavit. The present petition has been filed to fill up the lacuna. The complaint was filed in the year 2008 and after lapse of two years, the present application has been filed that too after cross-examination of the witnesses. The trial Court has assigned valid reasons for not entertaining the application for condone the delay of 10 days and therefore he prayed for dismissal of the Criminal Revision Case.

5. I heard the counsel for both sides, perused the order passed by the Trial Court and other material records placed. No doubt, at the time when the complaint under Section 138 of The Negotiable Instruments Act was filed by the husband of the first petitioner, it was not accompanied by any petition for condonation of delay. The trial Court also entertained the complaint filed by the husband of the first petitioner, without taking note of the delay in filing the complaint. Further, the trial Court also taken cognisance of the complaint. However, only during the course of trial in the complaint, especially during cross-examination, a question was raised as regards the delay in filing the complaint. Thereafter, the petitioners have filed the present petition for condonation of delay of 10 days in filing the complaint. Thus, it could be seen that there is an error on the part of the trial Court in entertaining the complaint even though there was delay of 10 days in filing the complaint.

6. It is seen from the application filed under Section 142 of The Negotiable Instruments Act that the complainant issued a statutory notice to the accused/respondent, which was received by her on 05.09.2005. On receipt of the notice, the accused/ respondent sent a reply notice dated 26.09.2005. Thereafter, the complainant was bed ridden during September and October 2005 due to serious ailment. On 15.10.2005, the complainant appointed his power agent to file the complaint under Section 138 of The Negotiable Instruments Act and accordingly the complaint was filed. However, the power agent himself sufferred severe ailment and he was bed-ridden from 15.10.2005 to 30.10.2005. As the statutory notice was received by the accused/respondent on 05.09.2005, the complaint ought to have been instituted on or before 19.10.2005, but it was filed only on 31.10.2005.

Therefore, in the application for condoning the delay, reasons have been given by the power agent of the deceased complainant for condoning the delay of 10 days in filing the complaint. Of course, the present petition has been filed during the course of trial in the complaint to condone the delay in filing the complaint.

7. In an identical case, this Court passed an order dated 18.12.2014 passed in Crl.OP No. 6944 of 2009 ( A. Rahamathullah @ Moulana vs. P.A.K. Manoharan ) wherein this Court following the order passed by the Honourable Supreme Court held that in the facts and circumstances of that case, such an application filed after the very complaint itself was entertained, has to be considered liberally. It was further held that itit may be appropriate for the lower Court to consider the claim of the applicant therein and to proceed further in accordance with law. In Para No.13 and 14 it was held as follows:-

8. The learned counsel for the revision petitioner also placed reliance on the decision of this Court in ( Nataraj @ T. Natarajan vs. P. Venkatachalam ) 2008 (1) CTC 503. In that case, this Court had an occasion to consider a case where the complaint was filed only with a Petition to condone the delay of 10 days in filing the complaint without filing an affidavit. However, the trial Magistrate took cognisance of the complaint and issued process. In such circumstance, this Court remanded the matter back to the trial Court and to issue process afresh with a direction to the complainant to file a fresh petition with affidavit for condonation of delay. Useful reference can be made to the order passed by this Court in para Nos. 6 to 9, which reads as follows:-

9. In the light of the above decisions rendered by this Court and the order passed by the Honourable Supreme Court in Sarah Mathew vs. Institute of Cardio Vascular Diseases (2014) 2 SCC 62 and having regard to the reasons assigned in the application for condonation of delay to condone the delay of 10 days in filing the complaint, I hold that the complainant has satisfactorily explained the delay of 10 days in filing the complaint and the Court below ought to have accepted the explanation offered for such delay. Accordingly, the order dated 22.04.2010 passed in CMP No. 223 of 2010 in STC No. 3 of 2008 on the file of Judicial Magistrate No.III, Salem is set aside. The Criminal Revision Case is allowed. Consequently, connected miscellaneous petition is closed.

22.07.2015 rsh Index : Yes Internet : Yes B. RAJENDRAN, J rsh To The Judicial Magistrate No.III Salem.