KAMAL SINGH Vs. MUKESH SHARMA AND ORS.

JUDGEMENT

(1.) Petitioner has filed this petition under Section 482 Cr.P.C. for setting aside the judgment dated 22.7.2013 (Annexure P3), passed by the learned Additional Sessions Judge, Gurgaon, reversing the order dated 27.1.2012 (Annexure P2), passed in criminal complaint No.118 dated 27.1.2009, by learned Judicial Magistrate 1st Class, Gurgaon.

(2.) The short controversy is that respondent No.1 Mukesh Sharma had filed a criminal complaint against the petitioner and others under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). It comes out that there was four days delay in filing the complaint. The complaint was filed on 18.8.2009. On the same day, the process was issued. On 14.2.2010, notice of accusation was served upon respondent No.3 Kamal Singh (petitioner herein). On 20.10.2011, when the case was at the stage of the evidence of the complainant, an application was filed by the complainant, seeking condonation of delay of four days in filing the complaint. It was stated that the delay was due to oversight of the complainant. The application was accompanied by an affidavit of the complainant. Learned Judicial Magistrate 1st Class, Gurgaon, vide order dated 27.1.2012, dismissed the said application and held that the complaint has been filed beyond the period of limitation. It was further stated that since the summoning order and order of notice of accusation have already been set aside by the appellate Court, therefore, there is no need to proceed with the complaint. In the revision filed by the complainant Mukesh Sharma before learned Additional Sessions Judge, Gurgaon, order of learned Magistrate was reversed and it was held that delay of four days in filing the complaint stands condoned. However, it was made clear that the order of condonation of delay will not be extended to condone the delay with regard to other lapses, if any, more particularly, delay in issuing notice as contemplated under Section 142(b) of the Act. The revision was allowed.

(3.) Factual position is not disputed. A complaint titled as Mukesh Sharma v. The Bank Employees Co-operative SE Thrift & Credit Society Limited and others, including the present petitioner Kamal Singh was filed on 18.8.2009. On the same day, the process was issued. On 14.2.2010, notice of accusation was served upon the accused No.3- Kamal Singh. The application for condonation of delay was filed on 28.10.2011 at the stage of evidence of the complainant. The learned Magistrate refused to condone the delay.