This criminal original petition has been filed under section 482 of Cr.P.C., praying to call for the records in connection with S.T.C.No.320 of 2008 on the file of Judicial Magistrate No.II, Nagercoil, Kanyakumari District and quash the same.
2.It is averred in the petition that the private complaint has been filed by the respondent as against the petitioner alleged to have committed an offence punishable under Section 138 of N.I.Act., before the Judicial Magistrate No.2, Nagercoil. The case of the complainant is that the petitioner borrowed a sum of Rs.1 lakh as loan and for that, the petitioner issued a cheque. When the cheque was presented, the same got bounced and therefore, he presented the complaint before the Court. The complaint originally presented by the respondent was returned on 03.01.2008 and the same was represented after 243 days delay. Without condoning the delay, the case was taken on file by the Judicial Magistrate. Thus, the complaint has been resubmitted and taken on file without condoning the above said delay. Further, the materials placed by the complainant does not disclose any existence of enforceable debt and therefore, the proceeding as against the petitioner is liable to be quashed.
3.The learned counsel for the petitioner contends that the petitioner has not been given any opportunity to put forth his case as to the delay and the presentation of the complaint and taking the case on file without condonation of delay very much affects the rights of the petitioner and therefore, the proceedings as against the petitioner are liable to be quashed.
4.The learned counsel for the respondent interalia contends that having taken the complaint on file itself discloses that only after the condonation of the delay, case was taken on file and even if there is no order, it is to be construed that delay has been impliedly condoned by the Court concerned. Therefore, this criminal original petition is to be dismissed.
5.The main contention of the learned counsel for the petitioner is that when the complaint was represented, there was a delay of 243 days and the same has not been condoned by the Judicial Magistrate. It is seen from the records that the respondent/complainant filed a petition to condone the delay in representing the complaint. No materials has been placed before the Court to ascertain whether there is any separate order as to the condonation of the delay. The contention of the respondent/complainant that absence of separate order as to the condonation of the delay while taking the case on file by the Judicial Magistrate does not affect the rights of the parties as it is only a procedural defect cannot also be brushed aside. However, the petitioner can be left to agitate this issue before the trial Court.
6.Yet another point raised by the learned counsel for the petitioner is that there is no material as to the existence of enforceable debt. This issue has to be gone into by letting in evidence before the trial Court. Therefore, this Court does not find any reason to invoke the inherent jurisdiction of this Court under
Section 482 of Cr.P.C.
7.Accordingly, this criminal original petition is dismissed. However, the petitioner is at liberty to raise all the grounds before the trial Court including the delay in representation of the complaint. Consequently, connected miscellaneous petitions are also dismissed.
To
1.The Judicial Magistrate No.II, Nagercoil, Kanyakumari District..