Delay condonation in cheque dishonour complaints must be decided before cognizance and summons are issued.

In a prosecution under Section 138 of the Negotiable Instruments Act, the Magistrate must first decide an accompanying application for condonation of delay under Section 142(b) before taking cognizance and issuing summons. Where the complaint itself discloses delay and the order does not show that the application was considered, allowed, rejected, or deferred, proceeding straight to summons reflects an improper exercise of jurisdiction. The cognizance and summons order was set aside, and the matter was remitted for fresh consideration from the complaint stage after deciding delay condonation in accordance with law.

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Issues: Whether the Magistrate could take cognizance and issue summons on a complaint under Section 138 of the Negotiable Instruments Act, 1881 without first considering the application seeking condonation of delay under Section 142(b) of that Act.

Analysis: The complaint itself disclosed delay and was supported by an application under Section 142(b) of the Negotiable Instruments Act, 1881. The order of the Magistrate did not show whether that application was considered, allowed, rejected, or deferred. Since refusal to condone delay at the threshold could result in dismissal of the complaint, the omission to deal with the application at the initial stage affected the proper exercise of jurisdiction. The defect was treated as more than a mere curable irregularity, and the matter required reconsideration by the Magistrate in the correct sequence.

Conclusion: The order taking cognizance and issuing summons was set aside, and the matter was remitted for first consideration of the application under Section 142(b) of the Negotiable Instruments Act, 1881.

Final Conclusion: The petitioner obtained relief by way of remand, with the Magistrate directed to proceed afresh from the stage of the private complaint after deciding the delay-condonation application in accordance with law.

Ratio Decidendi: In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, when delay in filing the complaint is put in issue, the Magistrate must first deal with the application for condonation of delay before proceeding to cognizance and summons if the order does not expressly defer that question.

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