G. RAVI Vs. SHIVANAND REVAPPA REBBANAVAR

JUDGEMENT

(1.) Heard the learned counsel for the petitioner. Respondent though served remained absent. Perused the records. The bone of contention of the learned counsel for the petitioner is that the respondent who filed a private complaint under Section 200 Cr.P.C. against the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 Act has also made an allegation under Section 143 of N.I. Act, requesting the Court to condone the delay in presenting the complaint. The learned Magistrate without considering the said application and without mentioning whether the said application was allowed or rejected the learned Magistrate has proceeded to take cognizance and recorded the sworn statement of the complainant and issued summons against the accused, which is bad in law.

(2.) I have carefully perused the orders passed by the learned Magistrate. It is seen that the respondent has filed a private complaint making allegations that the accused has issued a cheque on 11/8/2011 and the same was presented before the bank and came to be dishonored on 7/1/2012 and notice was issued on 21/1/2000 and complaint came to be lodged on 7/5/2012. Admittedly, according to the complainant, there was a delay in lodging the complaint. Therefore, he filed an application under Section 142(b) of Negotiable Instruments Act, 1881 Act on 7/5/2012 itself along with his affidavit. The learned Magistrate took cognizance of the offence and proceeded to record the sworn statement of the complainant. As rightly contended by the learned Counsel that in the sworn statement, nothing has been stated with regard to the contents of the affidavit filed in support of the application under Section 142(b) of the N.I. Act. The learned Magistrate in my opinion, has passed an order without referring to this application under Section 142(b). Whether the learned Magistrate has allowed the said application or not or whether he has actually; looked into the said application, is not forthcoming in the orders of the learned Magistrate. However, the accused has already appeared before the trial Court and enlarged on bail under Section 436 of Cr.P.C. It is urged before this Court, that the cognizance taken by the learned Magistrate is bad in law unless Section 142 application is allowed. In the event of the Magistrate coming to the conclusion that no substantial ground is made out for condoning the delay of the threshold itself, the complaint can be dismissed. Therefore, such opportunity was lost so far as accused is concerned. Even if the Magistrate is of the opinion that the said application has to be considered, after providing opportunity to the accused, then also the Magistrate can take cognizance by means of mentioning in the order that the consideration of the application is deferred after appearance of the accused. But such order has not been passed by the learned Magistrate.

(3.) Under the above said circumstances, I am of the opinion that the Magistrate has committed a serious error in not considering the application under Section 142(b) of the Negotiable Instruments Act, 1881 Act, at the initial stage. Therefore, though it is an irregularity, but, in my opinion, it is not the curable defect. Because of the simple reason, that if the Magistrate for any reason does not condone the delay in filing the complaint, it stand result in dismissal of the complaint.