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of <h1>Court sets aside order in section 138 case due to delay, directs complainant to explain delay</h1> <h3>Soumen Sarkar Versus State of West Bengal & Anr.</h3> Soumen Sarkar Versus State of West Bengal & Anr. - TMI Issues Involved:1. Quashing of proceedings under section 138 of the Negotiable Instrument Act.2. Condonation of delay in filing the complaint under section 142 of the Negotiable Instrument Act.3. Validity of cognizance taken by the Magistrate without condonation of delay.4. Applicability of the amendment to section 142(b) of the Negotiable Instrument Act.Issue-wise Detailed Analysis:1. Quashing of proceedings under section 138 of the Negotiable Instrument Act:The petitioner filed a revisional application under section 482 of the Code of Criminal Procedure, 1973, seeking to quash the proceedings and the impugned order dated 25.7.2013 passed by the Additional Chief Judicial Magistrate, Raghunathpur, District Purulia, in Complaint Case No. 2 of 2013 under section 138 of the Negotiable Instrument Act. The complaint alleged that the petitioner issued two cheques which were dishonored due to insufficiency of funds. The petitioner argued that the complaint was lodged beyond the statutory period and hence, not maintainable.2. Condonation of delay in filing the complaint under section 142 of the Negotiable Instrument Act:The complainant filed an application for condonation of delay under section 5 of the Limitation Act on 4.6.2013. The petitioner contended that the complaint was filed beyond the statutory period under section 142(a) of the Negotiable Instrument Act, and no application for condonation of delay was filed initially. The court observed that the issuance of summons does not dispense with the mandatory statutory requirement of condonation of delay.3. Validity of cognizance taken by the Magistrate without condonation of delay:The petitioner argued that the cognizance taken by the Magistrate was bad in law as it was done without condonation of delay. The court noted that the Magistrate took cognizance of the offence and issued summons without considering the petition for condonation of delay, which is contrary to the provisions of section 142 of the Negotiable Instrument Act. The court held that taking cognizance without satisfying the statutory requirements is not tenable under the law.4. Applicability of the amendment to section 142(b) of the Negotiable Instrument Act:The court considered the amendment to section 142(b) of the Negotiable Instrument Act, which allows the court to take cognizance of a complaint filed after the prescribed period if the complainant satisfies the court that there was sufficient cause for the delay. The court referred to several precedents, including Subodh S. Salaskar Vs. Jayprakash M. Shah and Anr., where it was held that delayed complaints should not be allowed unless the delay is condoned. The court also referred to Pawan Kumar Ralli Vs. Maninder Singh Narula, where the Supreme Court held that the issue of limitation should be dealt with on merit as per the proviso to section 142(b) of the N.I. Act.Conclusion:The court concluded that the complaint was filed long after the lapse of the statutory period, and the Magistrate acted beyond his jurisdiction by issuing summons without taking cognizance of the offence or condoning the delay. The court set aside the impugned order dated 15.1.2013 and all successive orders. The Magistrate was directed to provide the complainant an opportunity to satisfy the court regarding the delay and proceed in accordance with the law. The revisional application was allowed, and the complainant was instructed to appear before the concerned court within a fortnight.
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