The revision petitioner is the respondent in Crl.M.P. No.1257/09 in C.C. No.2721/09 on the files of the Addl. Chief Judicial Magistrate Court, Ernakulam and the respondent herein is the petitioner therein. The aforesaid complaint was filed alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, against the petitioner herein and the Crl.M.P was filed for condoning the delay of 22 days in filing the above C.C. The reason given by the respondent to condone the delay was that the cheques were misplaced in their office and that the same could not be traced out till 13-05-2009. On receipt of notice, the revision petitioner had filed a detailed objection contending inter alia that the respondent has not given proper explanation or cause to condone the delay from 13-05-2009 to 20-05-2009, the date of filing of the complaint. After considering the rival contentions, the learned Magistrate condoned the delay on condition that the respondent shall pay Rs.500/- as cost to the revision petitioner before 26-10-2009. The legality and propriety of this order is under challenge in this Revision Petition.
2. The learned counsel for the revision petitioner contends that the court below has went wrong in finding that the delay is only for two days, instead of 22 days. It is evident that the court below has not applied its mind properly on the cause of delay.
3. Per contra, the learned counsel for the respondent contended that the delay of two days is a mistake in the order and going by the impugned order, it could be seen that the learned Magistrate has considered the petition on the belief that delay is 22 days. It is also contended that the delay of 22 days has been properly and sufficiently explained in the application filed for condoning the delay.
4. In view of the rival contentions, the short question which arises for consideration is whether the trial court can be justified in condoning the delay of 22 days in filing the complaint.
5. Going by the petition filed for condoning the delay, it could be seen that it is the case of the respondent that the respondent is a Banking Company and thousands of cheques are dishonoured and returned each month. Even though the data of the dishonoured cheques are prepared for sending the lawyer notice under Sec.138 of the N.I. Act, the cheques are sorted out after the month end closing. Due to an inadvertent mistake on the part of the concerned official, the aforesaid cheque was sorted out and kept along with other cheques of another file. The cheque could not be found out for fling the complaint despite their earnest efforts and at last the cheque was traced out on 13-05-2009 only. Thus, going by the averments, it is seen that the delay of 22 days is seen admitted by the respondent themselves. Therefore, it can be reasonably presumed that the delay of two days stated in the impugned order is only a mistake.
6. On an overall evaluation of the cause of delay stated in the affidavit, I am also of the opinion that the respondent has explained the delay properly and there is no circumstance to think otherwise. In the objection filed by the respondent also no circumstances had been brought out to disbelieve the cause of delay alleged by the respondent. The delay of 22 days cannot be treated as an inordinate delay, considering the gravity of the offence and the loss and hardship to be caused to the respondent if he is deprived of his right to prosecute the revision petitioner on technical considerations. Certainly, the respondent will be put to loss and hardship. In the above view also, I find that the court below can be justified in condoning delay on terms. There is no illegality or perversity in appreciating the cause of delay.
Hence, this Criminal Revision Petition will stand dismissed.
Sd/-
K.HARILAL, JUDGE.
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P.S. To Judge