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
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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,
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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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M.C.HARI RANI, J
Crl.R.P.No.504 of 2001
ORDER
17th DAY OF JUNE 2001
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