Delay in fling cheque bounce complaint = But the acknowledgment card evidencing the receipt of the notice by the accused was not received by the petitioner and he has preferred complaints before the postal authorities and made personal enquiries also. He obtained a letter on 16/4/2005 from the Manager, Customer Care center, Ernakulam whereby he was informed that the matter is being enquired into. Subsequently, he persuaded the matter through his lawyer by filing complaint on 04/05/2005 to the Senior Superintendent of Post Offices, Ernakulam. Then on 28/5/2005, he received a letter from the Customer Care centre, Ernakulam that the registered letter issued to the accused was delivered on 01/03/2005. After receipt of information from the postal authorities that the notice was delivered to the accused on 01/03/2005 which was intimated to the complainant only on 28/5/2005, the complaint was filed before the concerned court on 02/06/2005 along with petition to condone the delay. 4. As per the proviso to Section 142(b) of the N.I.Act which was inserted by Act 55 of 2002 came into effect from 06/02/2003, cognizance of a complaint under Section 138 of the Negotiable Instruments Act may be taken by the court even after Crl.R.P.No.2043/2005 3 the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within the period specified in Section 142(b). In the present case sufficient reasons for the delay in filing the complaint were specifically stated by the petitioner in the affidavit filed in support of the petition. But the learned Chief Judicial Magistrate mistakenly overlooked the reasons stated therein and also the amended provisions of Section 142(b). It is not proper rather justifiable to dismiss the complaint for the fault on the part of the postal department and without any willful default on the part of the petitioner/complainant.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2043 of 2005()


1. KARUNAKARAN, S/O. VELU,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. SUNILKUMAR, S/O. KUMARAN,

                For Petitioner  :SRI.P.N.SUKUMARAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :22/06/2011

 O R D E R
                            M.C.HARI RANI, J
                            * * * * * * * * * * * *
                     Crl.R.P.No.2043 of 2005
                    ----------------------------------------
               Dated this the 22nd day of June 2011

                               O R D E R

      Petitioner  in    Crl.M.P.No.2678/2005                is the revision

petitioner. That petition was filed to condone the delay of 46

days in lodging the complaint. The complaint was filed under

Section 138 of the Negotiable Instruments Act. The learned

Chief Judicial Magistrate, Ernakulam dismissed the petition as

per order dated 08/07/2005. That order is challenged by the

revision petitioner by filing this revision petition.

      2.    Heard the learned counsel for the revision petitioner

and the learned Public Prosecutor.

      3.    The learned counsel for the revision petitioner

contended that the reasons for the delay in filing the complaint

were properly explained by the petitioner in the affidavit filed in

support of the petition which were not considered by the learned

Magistrate in a proper perspective which lead to miscarriage of

justice. It was sworn in the affidavit that after the receipt of the

dishonoured memo from the bank, he send a registered notice to

the accused on 26/2/2005 through the Head Post Office,

Crl.R.P.No.2043/2005             2


Ernakulam.        But the acknowledgment card evidencing the

receipt of the notice by the accused was not received by the

petitioner and he has preferred complaints before the postal

authorities and made personal enquiries also. He obtained a

letter on 16/4/2005 from the Manager, Customer Care center,

Ernakulam whereby he was informed that the matter is being

enquired into. Subsequently, he persuaded the matter through

his lawyer by filing complaint on 04/05/2005 to the Senior

Superintendent of Post Offices, Ernakulam. Then on 28/5/2005,

he received a letter from the Customer Care centre, Ernakulam

that the registered letter issued to the accused was delivered on

01/03/2005.       After receipt of information from the postal

authorities that the notice was delivered to the accused on

01/03/2005 which was intimated to the complainant only on

28/5/2005, the complaint was filed before the concerned court on

02/06/2005 along with petition to condone the delay.

      4.     As per the proviso to Section 142(b) of the N.I.Act

which was inserted by Act 55 of 2002 came into effect from

06/02/2003, cognizance of a complaint under Section 138 of the

Negotiable Instruments Act may be taken by the court even after

Crl.R.P.No.2043/2005             3


the prescribed period, if the complainant satisfies the court that

he had sufficient cause for not making the complaint within the

period specified in Section 142(b). In the present case sufficient

reasons for the delay in filing the complaint were specifically

stated by the petitioner in the affidavit filed in support of the

petition. But the learned Chief Judicial Magistrate mistakenly

overlooked the reasons stated therein and also the amended

provisions of Section 142(b). It is not proper rather justifiable to

dismiss the complaint for the fault on the part of the postal

department and without any willful default on the part of the

petitioner/complainant.

      5.     Accordingly, I found that this Court should definitely

interfere with the order passed by the learned Chief Judicial

Magistrate in Crl.M.P.No.2678/2005 and that order is set aside.

The matter is remanded to the court of the Chief Judicial

Magistrate, Ernakulam and is directed to proceed with the

complaint in accordance with law. The complainant shall appear

before that court on 25/7/2011.

                                      (M.C.HARI RANI, JUDGE)

jsr
             // True Copy//     PA to Judge

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Crl.R.P.No.2043/2005    5

Crl.R.P.No.2043/2005    6

Crl.R.P.No.2043/2005    7




                                M.C.HARI RANI, J




                             Crl.R.P.No.504 of 2001




                                          ORDER




                            17th DAY OF JUNE 2001

Crl.R.P.No.2043/2005    8