TMI Blog2015 (11) TMI 1860X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) TMI 1269 - KARNATAKA HIGH COURT] cannot stand. The proceedings conducted by the Magistrate, from the stage of taking cognizance being vitiated, also stand quashed - Petition allowed. - Criminal Petition No. 15517/2013 - - - Dated:- 7-11-2015 - A.N. VENUGOPAL GOWDA, J. For the Appellant : A. Vijaykumar, Advocate For the Respondent : V.R. Sthawarmath and B.C. Jaka, Advs. ORDER A.N. Venugopal Gowda, J. 1. This petition is against an order dated 27.04.2013, passed in Crl.R.P. No. 5/2013 by the Sessions Judge, Yadgiri. By the said order, an order dated 15.12.2012 passed by the JMFC at Yadgiri, in C.C. No. 676/2008, rejecting an application dated 01.08.2012 filed by the complainant, under Section 142(b) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 'that he is not having any jurisdiction to condone the delay after taking of the cognizance of the offences, registration of criminal case and issue of process'. 3. Criminal revision petition filed under Section 397 Cr.P.C, was dismissed by the Sessions Judge, by placing reliance on the decision in the case of T.S. Muralidhar, by being of the opinion that condonation of delay ought to be sought before the time of taking cognizance of the offence. The Sessions Judge held, that once cognizance is taken and trial takes place, the court cannot revert back to the stage of taking cognizance for the purpose of condoning the delay. 4. Sri A. Vijaykumar, learned advocate, placed reliance on the decision of the Apex Court in Pawan Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay, at the stage of hearing arguments on merits of the case was allowed and the delay was condoned. Immediately, the judgment was pronounced holding the accused guilty and was sentenced to pay fine. Judgment of conviction and order of sentence was assailed by the accused. The Appellate Judge set aside the judgment of conviction, on the ground that the complaint being barred by time, the Magistrate had no jurisdiction to take cognizance of the offence alleged in the complaint and since no application was filed seeking condonation of delay, as per proviso to clause (b) of Section 142 of the Act i.e., at the time of filing of the complaint, the trial is vitiated and the judgment of conviction recorded is perverse and illegal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court for deciding the issue of limitation? 9. While allowing the petition and setting aside the impugned order and permitting the complainant to file application for condonation of delay before the Trial Court, Apex Court has held as follows: 20. However, when the issue of limitation has come up for the first time before the High Court, it ought to have dealt with the same on merits as per proviso to Section 142(b) of the Act. The said proviso appended to Clause (b) of Section 142 of the Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the legislative intent was, no doubt, in order to overcome the technicality of limitation period. The Statement of Objects and Reasons appended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition that he should have been allowed to move an application for condonation of delay before the Trial Court as the respondent has not suffered any prejudice by reason of 25 days delay, we strongly feel that the appellant should not have been deprived of the remedy provided by the Legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits. 23. In view of the settled principles of law in Rakesh Kumar Jain, MSR Leathers, Subodh S. Salaskar (supra) and in the peculiar facts and circumstances of the case, we are of the considered opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if not, as to whether the complainant has made out sufficient cause for condoning the delay. Since the learned Magistrate has not condoned the delay, he had no jurisdiction to take cognizance of the offence. Upon taking of cognizance criminal prosecution get commenced. Since the taking of cognizance by the learned Magistrate in this case was without any jurisdiction, the entire trial held against the accused is vitiated and therefore, the learned Sessions Judge has rightly held that the learned Magistrate was not justified in convicting the accused and therefore the judgment of the learned Sessions Judge acquitting the accused is in accordance with law. No illegality or irregularity is pointed out in the said judgment. As the order condonin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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