G. VENKATESAN AND ORS. Vs. KAMALA

JUDGEMENT

(1.) The legal heirs of the deceased Venkatesan, who has filed the above S.T.C. No. 3 of 2008 under Section 138 of The Negotiable Instruments Act, have come forward with this Criminal Revision Case challenging the order dated 22.04.2010 passed in CMP No. 223 of 2010 in STC No. 3 of 2008 by the learned Judicial Magistrate No. III, Salem. By the said order dated 22.04.2010, the trial Court dismissed the application filed by the petitioners under Section 142 of Cr.P.C. refusing to condone the delay of 10 days. According to the petitioners, the husband of the first petitioner has given a sum of Rs. 70,000/- to the respondent/accused as loan for meeting her urgent family expenditure. On receipt of the loan amount, the respondent/accused promised to repay the amount together with interest. When the husband of the first petitioner demanded the repayment of the amount, the respondent/accused issued a cheque dated 18.08.2005 for a sum of Rs. 70,000/-. When the cheque was presented for encashment, it was dishonoured for want of funds on 23.08.2005. The husband of the first petitioner therefore sent a notice on 24.08.2005, which was received by the respondent/accused on 05.09.2005. On receipt of the notice, the accused/respondent sent a reply notice dated 26.09.2005 containing false and frivolous averments. Thereafter, the complainant viz., the husband of the first petitioner, filed the above said S.T.C. No. 3 of 2008 under Section 138 of the Negotiable Instruments Act. Pending the S.T.C. No. 3 of 2008, the husband of the first petitioner and also the complainant died on 12.07.2008. On his death, the petitioners were impleaded as legal heirs in S.T.C. No. 3 of 2008. During the course of trial, the power of attorney, representing the petitioners, examined himself as a witness on 11.12.2009 and he was cross-examined on 16.12.2009. When the complaint was posted for defence witnesses, the present petition has been filed under Section 142(b) of The Negotiable Instruments Act to condone the delay of 10 days in filing the complaint.

(2.) The learned counsel for the petitioner would contend that only at the time of trial in the complaint, it came to light that there was a delay of 10 days in filing the complaint. Even during the cross-examination, the power agent representing the petitioners have given reasons for not filing the complaint in time. Even the Court below has entertained the complaint and the trial in the complaint has commenced. Therefore, only to cure the defect, the present petition has been filed. In any event, adequate reasons have been assigned in the petition filed under Section 142 of The Negotiable Instruments Act for the delay in filing the complaint. The delay is not huge or unexplained and therefore, the Court below ought to have allowed the application as prayed for.

(3.) On the contrary, the learned counsel for the respondent would contend that the application under Section 142 of The Negotiable Instrument Act has been filed without a petition supporting the affidavit. The present petition has been filed to fill up the lacuna. The complaint was filed in the year 2008 and after lapse of two years, the present application has been filed that too after cross-examination of the witnesses. The trial Court has assigned valid reasons for not entertaining the application for condone the delay of 10 days and therefore he prayed for dismissal of the Criminal Revision Case.