TMI Blog2020 (7) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Letter acknowledgement Due bearing No. 1705 dated 27-10-2009 and informing that the said RLAD has been delivered on 28-10-2009. Therefore it was clear that even though the Registered Letter with acknowledgement Due was issued on 27-10-2009, addressing the accused, the complainant had not received any intimation regarding its service and it was only on 4-1-2010, the complainant was intimated regarding its service. This reason assigned by the complainant in the application cannot be said to be unreasonable - If the complaint is to be dismissed on technical ground i.e. on delay of about 13 days, that will amount to preventing the complainant at the threshold level, without affording him an opportunity to put forth his contention on merits. Even if delay of the said 13 days is to be condoned, no prejudice will be caused to the accused and he can very well contest the matter on merits. The delay caused in filing the complaint may be condoned in the interest of justice - the impugned order passed by the trial Court is liable to be set aside, the complaint is to be restored on file and the matter is to be remanded back to the trial Court to try the same in accordance with law. - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as delay in filing the complaint, the complainant had filed an application under section 141 of the Act, praying to condone the delay in filing the complaint. In the affidavit filed in support of I.A.No.1, the complainant contended that the legal notice was issued by him on 27-10-2009 but he had not received the postal acknowledgement to evidence the service of notice on the accused. Thereafter he approached the Post Office, lodged complaint and the Post Office in turn, had issued an endorsement on 4-1-2010 stating that the notice which was sent on 27-10-2009 is duly served on the accused on 28-10-2009 itself. Therefore it is said that the complainant was unable to file the complaint in time and delay caused in getting endorsement from the Post Office is to be condoned. 6. Since there was delay in filing the complaint, the accused was notified. 7. Accused appeared before the trial Court represented by his advocate and filed his objection to I.A.No.1, contending that the provision quoted in the application as one under section 141 of the Act, is not applicable to the prayer made in the application. It is contended that the reasons assigned by the complainant to seek condonatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e received an endorsement only on 4-1-2010 informing that the legal notice is already delivered to the addressee on 28-10-2009 itself. Therefore, only on 4-1-2010 the complainant came to know about the service of notice on the accused and he filed the complaint before the trial Court on 18-1-2010, which is well within time. It cannot be said that there is inordinate delay in filing the complaint as per the proviso to Section 142 of the Act. The cognizance of the complaint may be taken since the complainant had shown sufficient cause in filing the complaint within the specified period. 12. Per contra the advocate for respondent contended that there is inordinate delay in filing the complaint. There is no bona fides on the part of the complainant. Even though he had issued the notice on 27-10-2009, he was not bothered to know as to whether the notice was served on the accused or not till 9-12-2009. It was on 9-12-2009, the complainant said to have lodged the complaint and received the endorsement dated 4-1-2010 from the postal authorities. Even after receipt of the said endorsement dated 4-1-2010, the complainant had not thought it fit to file the complaint before the trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 16. Section 142 of the Act reads as under: 142. Cognizance of offence.- (1) 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. 17. Bare reading of these provisions of the Act, goes to show that by way of amendment w.e.f. 6-2-2003, the proviso to Section 142 (1)(b) was appended to, thereby enabling the Court to condone the delay in filing the complaint, if the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication cannot be said to be unreasonable. However, complainant could have filed the complaint immediately after 4-1-2010 but he filed the complaint on 18-1-2010. The delay of about 13 days in approaching the Court, cannot be said as inordinate, so as to deny the valuable right of the complainant to prosecute the accused for the offence under section 138 of the Act. If the complaint is to be dismissed on technical ground i.e. on delay of about 13 days, that will amount to preventing the complainant at the threshold level, without affording him an opportunity to put forth his contention on merits. Even if delay of the said 13 days is to be condoned, no prejudice will be caused to the accused and he can very well contest the matter on merits. 21. Therefore I am of the opinion that the delay caused in filing the complaint may be condoned in the interest of justice. The parties may contest the matter on merits. 22. I have gone through the impugned order passed by the trial Court. The trial Court has relied on the decision in T.S. Murlidhar (supra) and formed an opinion that the delay in the present case cannot be condoned. The said finding of the trial Court is erroneous for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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