ABDUREHIMAN Vs. SETHU MADHAVAN

JUDGEMENT

(1.) This Revision Petition has been placed before us on a reference by Justice R. Basant, after having noticed conflict between the decision of a learned single Judge of this Court in Muraleedharan v. Sreeram Investment Ltd. and Ors. and the decision of another learned Judge of this Court in G.T.C. Industrial Ltd. v. Abdurahimankutty 1993 (1) KLT 290. The learned Judge who decided Muraleedharan's case, supra, while dealing with an application under Section 142 of the Negotiable Instruments Act, 1881 has taken the view that delay in filing a complaint cannot be condoned unless it is supported by an affidavit by the complainant explaining the reasons for the delay.

(2.) The learned Judge who decided Abdurahimankutty's case, while interpreting the provisions of Section 468 of the Code of Criminal Procedure, took the view that if the delay has been property explained, cognizance can be taken, even without an application for condonation of delay in the interests of justice. The learned Judge while referring the matter felt that an authoritative pronouncement is warranted with regard to the question as to whether a detailed enquiry giving opportunity to the parties to adduce oral evidence is necessary at the stage of taking cognizance to decide whether the delay deserves to be condoned under Section 142 of the Negotiable Instruments Act or whether an adhoc order is to be passed after entertaining the materials available relegating the question to be decided after exhaustive consideration at the final stage.

(3.) The first respondent herein who is the complainant has stated that he has given a cheque bearing number 33017 dated 27.01.2005 for an amount of Rs. 75,000/- and the same was presented for collection through Punjab National Bank but was dishonoured with the endorsement "funds insufficient". Notice was sent to the accused on 28.02.2005 and the same was received on 2.3.2005. Complainant has stated that due to ill health he could not file the complaint within the statutory period and there was delay of two months and 14 days in filing the complaint. Petition for condonation of delay was preferred along with an affidavit sworn to by him but not attested by an advocate. The reasons for the delay was explained and a medical certificate was also produced. The court below found that there are sufficient grounds for condoning the delay and the application was allowed. Aggrieved by the order, this revision petition has been filed.