Magistrate Cannot Take Cognizance of Time-Barred Cheque Dishonour Complaint Without Condoning Delay First: Supreme Court [Read Order]

In a recent decision, the Supreme Court said that a magistrate can't take notice of a cheque bounce case if it's filed late without condoning the delay first.

The case was brought by S. Nagesh, who challenged an order from Karnataka High Court that refused to quash criminal action against him under Section 138 of Negotiable Instruments Act. The case is based on a private complaint filed by Shobha S. Aradhya before a magistrate in Mysore.

As per the complaint, the petitioner had taken financial help from the respondent and her husband. To repay the amount of Rs. 5.40 lakh, he issued a cheque dated 10 July 2013. When the cheque was deposited, it was returned unpaid on 17 July 2013 due to lack of funds.

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A legal notice was sent to him on 13 August 2013 asking for payment but since no payment was made, the respondent filed a cheque dishonour complaint on 9 October 2013.

On the same day, the Magistrate took cognizance of the case. Later, it was found that the complaint had been filed two days late. An application was filed later asking the court to excuse the delay, stating that the complainant was suffering from viral fever at that time.

The Magistrate accepted this explanation and condoned the delay in October 2018. However, when S. Nagesh approached the High Court to quash the case, his petition was dismissed.

Before the Supreme Court, the petitioner’s counsel argued that the Magistrate had no power to take cognizance of a delayed complaint without first condoning the delay. He argued that the law clearly says that the court must first be satisfied that there was a valid reason for the delay before taking up such a case.

On the other hand, the respondent argued that the delay was very short, that it was due to illness, and that since the delay had already been condoned, the case should not be dismissed on technical grounds.

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A Bench of Justice SanjayKumar and Justice Alok Aradhe observed that the law under Section 142 of the Negotiable Instruments Act is very clear. The Court observed that a Magistrate gets the power to take cognizance of a delayed cheque dishonour complaint only after the delay is condoned. The Court explained that taking cognizance first and condoning the delay later is not allowed under the law.

The court pointed out that a case filed after the time limit cannot be treated as a valid case unless the delay is formally excused. The Court also observed that the complainant had wrongly stated in her complaint that it was filed within time.

The court held that the Magistrate had acted incorrectly by taking cognizance before condoning the delay. The High Court’s order was set aside, the appeal was allowed and the cheque dishonour complaint was quashed.

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