K KUTTAN NAIR Vs. P MAMMI

JUDGEMENT

(1.) This application is filed by the revision petitioner to condone the delay of 123 days in preferring the Crl., R.P. under S.5 of the Limitation Act.

(2.) The Crl. R.P. is filed against the order dated 5.6.1997 passed by the Judicial First Class Magistrate's Court, Tirur in S.T. No. 212/96 dismissing the complaint filed by the petitioner against the respondent alleging offence punishable under S.138 of the Negotiable Instruments Act finding that the complaint is not maintainable since there was no proper notice as contemplated under the proviso (b) to S.138 of the N.I. Act relying upon the decision of the Calcutta High Court in Gopa Devi Ozha v. Sujit Paul ( 1996 (2) KLT 886 ).

(3.) The petitioner has contended that after the order was passed, his counsel advised that there is little scope to challenge the order of dismissal of the complaint in view of the judgment of the Calcutta High Court reported in 1996 (2) KLT 886. Subsequently when he contacted his counsel in November, 1997, he was informed by the counsel that the legal position has been changed in view of the subsequent decision of this Court reported in 1997 (2) KLT 539 . Therefore, he immediately applied for certified copy of the order on 13.11.1997, obtained the copy on 4.12.1997 and he made arrangements to file the revision petition before this Court on 20.12.1997. He has further contended that due to some personal problems he could meet his counsel only on 9.1.1998 and the revision petition was preferred on 15.1.1998. Therefore, according to him, there is absolutely no laches or negligence on his part in preferring the revision petition and the delay of 123 days in filing the revision petition which occasioned due to the wrong advice of his counsel, is liable to be condoned.