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2014 (12) TMI 1394 - HC - Indian LawsDishonor of Cheque - Jurisdiction - power of Judicial/Metropolitan Magistrate to condone the delay in filing a private complaint - HELD THAT:- Factually, the statutory notice under Section 138 of The Negotiable Instruments Act issued by the respondent was received by the petitioner on 26.05.2005. As per Section 138 of The Negotiable Instruments Act, though the period of limitation expired on 11.07.2005, the complaint was admittedly presented before the learned Magistrate only on 12.07.2005. It was returned by the learned Magistrate repeatedly and finally cognizance was taken on 22.01.2007. As held by the Honourable Supreme Court in Vanka Radhamanohari v. Vanka Venkata Reddy [1993 (4) TMI 326 - SUPREME COURT], so far as the offence under Section 138 of The Negotiable Instruments Act is concerned, if there is a delay in presenting the complaint, the same requires to be satisfactorily explained only by the complainant and the Court cannot condone such delay in the interest of justice as it could be done under Section 473 Cr.P.C. Therefore, it is absolutely necessary for the Court to examine as to whether the complainant has satisfactorily explained the delay by showing sufficient cause and if he fails to do so, the Court shall dismiss the complaint. In other words, in the absence of any satisfactory explanation by the complainant for the delay, the Magistrate, on his own, by taking into account the facts and circumstances of the case, shall not condone the delay as it could be otherwise done under Section 473 Cr.P.C. In Sarah Mathew v. Institute of Cardio Vascular Diseases [2013 (11) TMI 1587 - SUPREME COURT], the Honourable Supreme Court has held that for computing the period of limitation, the crucial date shall be the date of presentation of the complaint. If the date of presentation of the complaint is beyond the period of limitation prescribed under Section 142 of The Negotiable Instruments Act, it is absolutely necessary for the complainant to explain such delay by showing sufficient cause. In the case on hand, admittedly, no such petition was filed and no such explanation was offered. But, the lower Court, without noticing that there was a delay in presenting the complaint, has inadvertently taken cognizance. Had the lower Court noticed the delay, it would have called upon the respondent herein to explain the delay. Thus there was some error on the part of the lower Court. In the instant case, the order of the learned Magistrate taking cognizance deserves to be set aside and the matter needs to be remanded back to the lower Court with a liberty to the respondent herein to file an appropriate petition seeking condonation of delay by showing sufficient cause - Petition closed.
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