TMI Blog2015 (8) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the reasons for the delay of five days in filing the complaint. This aspect of the matter, as argued by learned Counsel Sri.Ameet Kumar Deshpande, has not been considered by the trial Court. But, this aspect of limitation had been raised as one of the grounds before the First Appellate Court in the appeal filed under Section 374 of Cr.P.C. by the accused in Criminal Appeal No. 1/2014. In fact, the present case stands on a higher footing than the facts found in Pawan Kumar Ralli's case. The accused therein had received the legal notice on 27.04.2012. On the basis of the said averment, the learned Judge of the Trial Court was satisfied that the complaint was within the prescribed period of limitation. In the present case, there was a delay of five days and therefore, the complainant has filed an application under proviso to Section 142 (b) of the Limitation Act, which has come into effect on 06.02.2003. What is the sufficient cause for condonation of delay is dependent upon the facts of each case and delay may be liberally condoned without adopting a pedantic approach as held by the Hon'ble Apex Court in the case of LAO Anantanay Vs. Khathij [ 1987 (2) TMI 61 - SU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said amount, lest he would be forced to initiate criminal proceedings. In spite of the receipt of the legal notice got issued on 22.10.2006, the petitioner/accused did not repay the money and hence complaint was filed by the respondent. In view of delay of 5 days in filing the complaint, applicant had filed an application as per proviso to Section 142(b) of the Act, seeking condonation of delay in filing the complaint. In spite of filing of this application, the learned JMFC did not consider the same and proceeded to record the evidence. 5. The complainant has been examined as P.W. 1 and has got marked as many as five exhibits as Exs. P1 to P5. The accused has been examined as DW. 1 and has got marked four exhibits as Exs. D1 to D4. He has denied the charges levelled against him. According to the accused, he wanted to purchase 6 acres 3 guntas in Sy. No. 14 of Gilesugur village, Raichur district from one Sri.Yenkobachar and that he had paid a sum of ₹ 1.5 lakhs as advance to Sri Yenkobachar. The cheque in question is said to have been given as security to the complainant, till the sale transaction materialized in favour the complainant and that it was not a loan transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014. In paragraph 9 of the decision, the Hon'ble High Court of Madras has dealt with the decision reported in (1993) 3 SCC 4 in the case of Vanka Radhamanohari Vs. Venka Venkata Reddy. The Hon'ble High Court of Madras has explained the basic difference between Section 5 of Limitation Act and Section 473 of the Criminal Procedure Code. What is held in the said decision is that in order to get the delay condoned under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the Court that there was sufficient cause for condonation of delay; whereas Section 473 of Cr.P.C. enjoins a duty on the Court to examine not only whether such delay has been explained but also to see as to whether it is the requirement of the justice to condone or ignore such delay. 11. Per contra, the learned counsel for the respondent has relied upon paragraph No. 20 of decision in the case of Pawan Kumar Ralli's to contend that when the issue of limitation is raised for the first time before the High Court, the delay is deemed to have been condoned. The said proviso appended to clause (b) of Section 142 of the Act was inserted by the Negotiable Instrument (Amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Ralli's case. The accused therein had received the legal notice on 27.04.2012. On the basis of the said averment, the learned Judge of the Trial Court was satisfied that the complaint was within the prescribed period of limitation. In the present case, there was a delay of five days and therefore, the complainant has filed an application under proviso to Section 142 (b) of the Limitation Act, which has come into effect on 06.02.2003. In fact, one of the grounds raised before the Hon'ble Apex Court in Pawan Kumar Ralli's case is that the High Court should have remitted the matter to the trial Court to enable the complainant to file an application in terms of provisions of Section 142(b) of the Act. Ultimately, the Hon'ble Apex Court has allowed the petition invoking the powers vested under Article 142 of the Constitution of India because there was wrong calculation based on a hand note of the complainant therein. 16. Sri. Ameet Kumar Deshpande, learned counsel for the petitioner has vehemently argued that though the defect is technical and it cannot be cured at this stage and the matter will have to be quashed. After going through decision rendered in Pawan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically indicate that there is no delay in filing the complaint. ORDER The petition is allowed and the proceedings initiated by the trial Court in Criminal Case. No. 600/2007 and consequent Criminal Appeal No. 1/2014 are quashed. The matter is remitted to the trial Court to pass appropriate orders on the application already filed for condonation for delay, at the earliest and to dispose of the matter on merits, preferably within three months from the date of appearance of the parties. The parties shall appear before the trial Court, without fail, on 21.09.2015 and thereafter, the trial Court to dispose of the matter within three months, after recording evidence afresh. It is made clear that if no delay is condoned in spite of an application is filed, the proceedings will go on in a case for the offence punishable under Section 138 of the Act, it would be no proceedings in the eye of law. Therefore, all the Magistrates dealing with the offence under Section 138 of the Act are expected to first ascertain whether there is any delay in filing the complaint and if there is any delay whether any application has been filed under the proviso of Section 142(b) of the Ac ..... 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