K.SUBAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The order under challenge is the one rendered by the trial court concerned (Chief Judicial Magistrate Court, Thalassery), whereby the application filed by the complainant to condone the delay in re- presenting the complaint has been dismissed. The petitioner is the complainant in S.T.C.No.786/2015 (old No: S.T.C.No.42/2012 on the file of the Chief Judicial Magistrate Court, Thalassery). The 2nd respondent is the accused in the said complaint for the offence under Sec.138 of the N.I.Act. The dishonoured cheque in question in this case is for Rs.5 lakhs.

(2.) Heard Sri.K.Deepa, learned counsel appearing for the petitioner-complainant, Sri.Abu Mathew, learned counsel appearing for R-2 (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State.

(3.) The petitioner-complainant had originally filed the complaint (previously numbered as S.T.C.No.42/2012) in 19.5.2012. Subsequently, in view of the rendering of the judgment dated 1.8.2014 of the Apex Court in Dasarath Rupsingh Rathod v. State of Maharashtra and anr., reported in (2014) 9 SCC 129, the said complaint was returned on 23.9.2014 for presentation within 30 days before the Magistrate Court having territorial jurisdiction over the area of the drawee bank in question. According to the petitioner there was some communication gap on the part of the advocate clerk and the complainant could not take back the complaint for re-presentation before the "proper court". Later, the provisions of the Negotiable Instruments Act were amended with effect from 15.6.2015, whereby the new provisions as in Sec.142(2) and Sec.142A have been inserted. Thereafter, the petitioner could came to know about the return of the complainant only on 14.9.2015 and he had immediately taken steps to present the complaint before the original court on 15.9.2015 along with delay condonation petition, in view of the amended provisions in the N.I.Act. Without issuing notice to the accused, the learned Magistrate had condoned the delay as per the order dated 29.4.2017. The legality and the correctness of the said order dated 29.4.2017 passed by the learned Magistrate was challenged by the 2nd respondent (accused) herein by filing Crl.M.C.No.2079/2016.