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TMI Blog2014 (12) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... d raised in this petition is that the order of the learned Magistrate taking cognizance of the offence on the private complaint filed by the respondent is barred by limitation. The learned counsel for the respondent would submit that, of course, there was delay in presentation of the complaint by one day but the lower Court, according to the learned counsel, has impliedly, condoned the delay and thus the order taking cognizance is not illegal. 3. I have considered the above submissions. 4. 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. 5. Before going into further facts of the case, let us have a quick look into the legal position. Prior to the Amendment Act 55 of 2002, which came into force on 06.02.2003, for condonation of delay in taking cognizance of an offence under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which read as follows: "473 Cr.P.C. - Extension of period of limitation in certain cases: Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. Section 5 of the Limitation Act - Extension of prescribed period in certain cases: Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. Section 142 of The Negotiable Instruments Act Cognizance of Offences: Notwithstanding any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of justice to condone the delay. It is because of this difference in language, the Honourable Supreme Court in the said judgment held that so far as Section 473 Cr.P.C. is concerned, even in the absence of any explanation offered by the applicant for the delay, it is incumbent upon the Court to condone or ignore such delay in the interest of justice. 11. Now, let us see the language used in proviso to Section 142 of The Negotiable Instruments Act, which is more or less similar to Sections of the Limitation Act. Here also, the Court can take cognizance only when the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period. The language "it is necessary to do so in the interest of justice" as it is found in Section 473 Cr.P.C. is not found in the proviso to Section 142 of The Negotiable Instruments Act. This makes the difference between the proviso to Section 142 of The Negotiable Instruments Act and Section 473 Cr.P.C. As we have already seen, the proviso to Section 142 of The Negotiable Instruments Act and Section 5 of the Limitation Act are in pari materia. Therefore, as held by the Honourable Supreme Court in Vanka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o err is human" is more a practical notion of human behavior than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine." 14. Similar view has been expressed by the Honourable Supreme Court in Sarah Mathew v. Institute of Cardio Vascular Diseases (supra) also and para 39 of the said order reads as follows: "39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale, Japani Sahoo and Vanka Radhamanohari. The object of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim vigilantibus et n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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