The revision petitioner is aggrieved by the dismissal of his complaint by the Judicial First Class Magistrate's Court-II, Attingal. His complaint, alleging the offence punishable under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code, was received in court as C.M.P.No.1551 of 2003 for necessary enquiry under Sections 200 and 202 of the Code of Criminal Procedure. Finding that there is delay of 12 days which stands not explained any where, the learned Magistrate dismissed the complaint on 09.10.2003. 2. When this revision petition came up for hearing the learned counsel for the revision petitioner submitted that it was, in fact, an inadvertent omission on the part of the complainant not to file a specific petition for condonation of delay. Of course, the Proviso to Section 142 of the Negotiable Instruments Act provides that even in a case of time barred complaint, cognizance can be taken by the court if the complainant satisfies the court that he had sufficient cause for not making the complaint within the period of limitation. But in this case, the learned Magistrate dismissed the complaint because there was no request or application by the complainant and he has also not explained the delay in the complaint. Dismissal of complaint in toto cannot be justified when the offence under Section 420 of the Indian Penal Code is also alleged in the complaint.
3. However, in the interest of justice, I feel that the revision petitioner can be granted an opportunity to file an application before the trial court for condonation of delay. It is submitted that the amount involved is Rs.2,50,000/-. Of course, it is true that the position stands settled that even in the absence of a separate application to condone delay, the court can condone the delay? But there must be some request from the part of the complainant, and at least the complaint should contain the necessary materials explaining the delay. In the absence of such materials, or in the absence of a specific request, though not in the form of a separate application, court is not expected to go into the question of delay suo motu and condone the delay.
4. In the particular facts and circumstances, I feel that an opportunity can be granted to the complainant to approach the court with necessary application for condonation of delay. Once such an application is filed, the trial court will have to consider it on merits and decide whether the delay is properly and satisfactorily explained as regards the offence under Section 138 of the Negotiable Instruments Act. If the court finds proper and satisfactory explanation, cognizance can very well be taken on the complaint.
In the result, the revision petition is allowed in the interest of justice. The impugned order is hereby set aside and the matter is remanded to the trial court for procedure afresh after granting reasonable opportunity to the complainant to make specific application for condonation of delay. If such an application is not made within two months from the date of his appearance, appropriate orders can be passed by the learned Magistrate.
The revision petitioner will appear before the trial court on 06.07.2014.
Sd/-
P. UBAID (JUDGE) DSV/04/06