Bamdev Nayak vs B V Shetty

B.V. Pinto

This petition is filed Seeking to quash the proceedings in CO No,83620/2009 pending before the 14th Additional Chief Metropolitan Magistrate, Bangalore for the offence U/a. 138 of Negotiable Instrument Act.

Primarily it is the case of the petitioner that, there is delay of 76 days in filing the complaint U/s. 138 of Negotiable Instrument Act. Without service of notice to the petitioner and without hearing the petitioner, the learned Magistrate has taken cognizance of the offence and issued process, after condoning the delay.

On perusal of the order sheet of the trial Court, it is seen that, on 05.10.2007, learned Magistrate has issued notice of IA to the accused and the matter was posted on 05.10.2007. Again on 05.10.2007, notice was re-issued to the accused and posted on 30.10.2007, On 30.10.2007, without observing as to whether the said notice has been served on the accused, the learned Magistrate proceeded to pass an order saying that, the objections is taken as not filed. Thereafter, impugned order dated 30.11.2007/09.01.2008 is passed, taking cognizance on condoning delay of 76 days, caused in filling of the case compliant.

I have perused the material on record.

Heard Sri. Chandrashekhar, learned counsel for the petitioner and Sri. Shaker Shetty, learned counsel for the Respondent.

The learned counsel for the petitioner submits that, where there is delay in filling the complaint, notice requires to be served on the accused before condoning the delay caused in filing of the complaint.

The learned Magistrates having not observed that, notice has been served, should not have proceeded further, Hence, proceedings an and after 30.11.2007 in CC No. 83620/2009 (PCR No. 5347/2007) on the file of 14th Additional Chief Metropolitan Magistrate, Mayohall, Bangalore is quashed. The matter is remanded back to the Court below with a direction to give an opportunity to the petitioner, who is accused to contest the matter regarding delay in filing of the complaint. The parties are directed to appear before the Court on 05.01.2012, on which date, both parties shall appear without notice from this Court. It is further directed that, if the petitioner does not appear on that day and does not file objections, it is deemed that, there are no objections and the learned Magistrate shall dispose of the matter and pass an appropriate orders on the ground that, petitioner in already served with notice.

Accordingly, the petition is allowed.