M MURALEEDHARAN Vs. SREERAM INVESTMENT LTD

JUDGEMENT

(1.) The short but interesting question that has cropped up in this petition is whether the trial court can condone the delay in filing a complaint under Section 142 of the Negotiable Instruments Act (for short the Act) on the basis of an affidavit filed by the counsel for the complainant.

(2.) Relevant facts may be briefly noticed.

(3.) The petitioner is being prosecuted for an offence punishable under Section 138 of the Act. Respondent No. 1 had filed the above complaint along with an application under Section 5 of the Limitation Act to condone the delay of two days in filing the complaint. The application was supported by an affidavit of the counsel for the complainant. When the application came up for consideration, the petitioner contended that the delay was not liable to be condoned, since the application was not supported by the affidavit of the complainant himself. He pointed out that the proviso to Clause (b) of Section 142 of the Act being unambiguous, the affidavit in support of the application for condonation of delay ought to have been filed by the complainant himself. However, the said contention was repelled by the learned Magistrate and the delay was condoned. The above order passed by the learned Magistrate is under challenge in this petition filed under Sections 397 and 401 of the Code of Criminal Procedure.