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TMI Blog2020 (4) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of 2018 are complaints filed by the appellant under Negotiable Instruments Act, 1881 (for short, N.I Act) against the present respondent. 3. Private Complaint Case No. 33 of 2018 was accompanied by an application under Section 142 (1) (b) of the N.I Act for condonation of delay of 39 days in preferring the connected complaint. Private Complaint Case No. 34 of 2018 was also similarly accompanied by an application for condonation of delay under Section 142 (1) (b) of the N.I. Act for condonation of delay of 78 days. 4. The learned Magistrate had taken up the applications for condonation of delay for consideration at the first instance. Without issuing any notice to the respondent herein, after hearing the learned counsel for the appellant, the learned Magistrate had come to the conclusion that the appellant herein had not been able to show sufficient cause to allow the applications for condonation of delay and had, accordingly, rejected both the applications by separate orders dated 26.02.2019. 5. Paragraph-8 of both the orders dated 26.02.2019, which is identical, reads as follows:- "In view of the above and since the Complainant has not been able to show sufficient cause to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same will result in acquittal of the accused and in that event, an appeal will be maintainable. In support of his submissions, Mr. Prasad has also relied on Kalpana Tyagi (supra). 12. I have considered the submissions made by the learned counsel for the parties and have perused the materials on record. 13. Section 142 (1) of N.I Act reads as follows: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) - (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138." 14. The proviso inserted to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana High Court held that the order of discharge passed by the learned Magistrate will have to be deemed as an order of acquittal and therefore, revision before the learned Sessions Court was not maintainable and that only remedy available to the State was to approach the High Court by way of leave to appeal. 22. S. Rajaram (supra), which is a judgment of the High Court of Madras (Madurai Bench), was passed on a Criminal Revision petition filed under Section 397 read with Section 491 CrPC. In the aforesaid case, the learned Magistrate had dismissed the complaint filed under Section 138 of NI Act on the ground that he was not satisfied with the reasons cited by the complainant to explain delay. Holding that the complainant had shown sufficient cause for condonation of delay, the High Court had allowed the Criminal Revision. 23. In Kalpana Tyagi (supra), challenge was made to orders passed by the learned Magistrate dismissing in default the complaints filed by the petitioner under Section 138 N.I Act. Such orders were passed after summons was issued to the accused. Delhi High Court has held that in such a situation, Section 256 CrPC had come into play and dismissal of complaints res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Section 256 (2) CrPC provides that, so far as may be, provisions of sub-section (1) shall also apply to cases where non-appearance of the complainant is due to his death. 28. It will be necessary to also consider the provision contained in Section 203 CrPC which provides that if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. Issue of process, namely, a summons in a summons-case or a warrant in a warrant-case under Section 204 CrPC, arises only if the Magistrate taking cognizance of an offence is of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." 32. In the instant cases, no cognizance of any offence was taken by the Court and even the cognizance of the complaint was not taken as the Court had rejected the applications for condonation of delay in not making the complaints within the prescribed period and therefore, there was no occasion to issue summons to the accused. It is manifest that criminal proceedings had not commenced based on the complaints. When criminal proceedings had not commenced, it will be incongruous to hold that the accused stands acquitted with the dismissal of the complaint. 33. In view of the above discussions, I am of the considered opinion that in a circumstance where a complaint is dismissed as a consequence of the Court being not satisfied that the complainant had sufficient cause for not making the complaint within the prescribed period, the same does not result in acquittal of the accused. Therefore, these leave petitions seeking leave to appeal are not maintainable. 34. Accordingly, Crl. L.P No.04/2019 and Crl. L.P No.05/2019 are dismissed reser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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