SANJAY SHARMA Vs. AVDESH SHARMA

JUDGEMENT

(1.) WITH the consent of parties, matter is heard finally. The petitioner has preferred this petition under Section 482 of Cr.P.C. for quashing the order passed by Sessions Judge, Bhind in Cri. Revision No. 86/2013, whereby order passed by C.J.M., Bhind in Cri. Case No. 142/2013 taking cognizance against the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act has been affirmed and the revision petition preferred by the petitioner has been dismissed. The facts in brief are that non -applicant has filed a private complaint under Section 138 of Negotiable Instruments Act alleging that petitioner/accused has taken Rs. 1,20,000/ - from him and issued a cheque No. 219752 dated 2.6.2012 of Rs. 1,20,000/ -. When the complainant submitted the cheque for encashment it was returned back. Thereafter, a notice was sent on 11.9.2012. Petitioner failed to make the payment. It was also stated that since the complaint had been filed after lapse of prescribed period an application under Section 5 of Limitation Act has also been submitted for condoning the delay. The learned Chief Judicial Magistrate had condoned the delay in filing the private complaint and taken cognizance under Section 138 of Negotiable Instruments Act vide order dated 10.12.2012 being aggrieved petitioner knocked the door of Sessions Judge, Bhind by preferring Cri. Revision No. 86/2013, which has been dismissed. Being aggrieved this petition under Section 482 of Cr.P.C. has been preferred.

(2.) IT is contended that as per the complainant cheque was submitted on 31.8.2012. The same had been returned back on 8.9.2012. A notice was sent on 11.9.2012, therefore, complaint should have been filed up to 5.11.2012 but the complaint has filed on 30.11.2012. The learned trial Court has committed illegality in condoning the delay in filing the complaint because delay cannot be condoned under Section 142 of Negotiable Instruments Act. It is further submitted that as per the complainant the reason for delay in filing the complaint that the complainant became ill due to Malaria. However, no document for medical treatment has been filed, therefore, the delay could not be condoned.

(3.) THE crucial question requires to be considered is whether delay in filing the complaint under Section 138 of the Negotiable Instruments Act can be condoned or not? Before proceeding to examine the issue it would be relevant to look into the provisions of Section 142 of the Negotiable Instruments Act, which reads as under.: -