ORDER
M. Jeyapaul, J.
1. The petitioners are the accused in C.C.Nos.2155 of 2005 and 2154 of 2005 respectively on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai-15, launched by the complainant for an offence under Section 138 of the Negotiable Instruments Act.
2. The complainant filed the complaint with a delay of 28 days in preferring the complaint. As the proviso under Section 142(b) of the Negotiable Instruments Act contemplates taking cognizance of the complaint by the Court, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within the period of limitation as contemplated under Section 142(b) of the Negotiable Instruments Act. The applications seeking condonation of delay were filed and the same were allowed by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai.
3. The entire challenge in these criminal original petitions is directed against the entertaining of the applications seeking condonation of delay without an affidavit of the party and allowing the applications without affording an opportunity to the accused to contest the said applications.
4. Learned counsel appearing for the petitioners/accused would submit that the valuable right contemplated under Sections 138 and 142(b) of the Negotiable Instruments Act has been completely thwarted by the course adopted by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai, in entertaining the applications without an affidavit and also allowing the applications without affording an opportunity to the accused.
5. Learned counsel appearing for the respondent would submit that only in a case where a petition under Section 5 of the Limitation Act is filed, an affidavit will have to be annexed therewith and an opportunity will have to be given to the other side to contest the petition. Where the accused has not been served with summons for taking the case on file, he cannot be heard to say anything in the original proceedings initiated by the complainant.
6. In the Statement of Objects and Reasons of the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, it has been stated that proviso to Section 142(b) is added to provide discretion to the Court to waive the period of one month which has been prescribed for taking cognizance of the case under the Act.
7. Section 142 of the Negotiable Instruments Act reads as follows:-
Section 142. Cognizance of offences.---Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)---
(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138:
Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.
8. It is found that the sum and substance of the proviso found under Section 142 of the Negotiable Instruments Act is quite akin to the discretion conferred on the Courts to condone the delay under Section 5 of the Limitation Act in preferring the appeals and applications.
9. There is no dispute to the fact that the discretion has been conferred on the Court under Section 142 of the Negotiable Instruments Act in the very same line of Section 5 of the Limitation Act. In both the abovesaid provisions of law, the complainant has to satisfy the Court that he had sufficient cause for not approaching the Court within the period prescribed under law.
10. The period of limitation has been prescribed under Section 468 of the Code of Criminal Procedure to take cognizance of the offences which are punishable with imprisonment not exceeding three years. The Court has also been given discretion to take cognizance of the aforesaid offences by extending the period of limitation in such cases under Section 473 of the Code of Criminal Procedure.
11. A Division Bench of Andhra Pradesh High Court in Appu Ramani v. State while dealing with the scope and ambit of Sections 468 and 473 of the Code of Criminal Procedure has held that the principles of natural justice demand that the accused persons must be heard before passing an order on the application filed under Section 473 of the Code of Criminal Procedure.
12. The Kerala High Court in M. Muraleedharan v. Sreeram Investment Ltd. (2006) 129 Comp Cases 465 has held that the accused has an indefeasible right to challenge the veracity or correctness of the averments made in the application or in the affidavit filed under the proviso to Section 142 of the Negotiable Instruments Act, 1881 seeking condonation of delay in filing the complaint under Section 138 of the Negotiable Instruments Act.
13. It is true that the Court has been given discretion to condone the delay in preferring the complaint beyond the period prescribed under Section 142(b) of the Negotiable Instruments Act, but that discretion will have to be exercised judiciously. The judicial discretion cannot be exercised arbitrarily and capriciously. The principles of natural justice also will have to be followed in exercising the discretion by the Court.
14. A mere petition explaining the delay will not be sufficient. The petition should be accompanied by an affidavit sworn to by the complainant or the power of attorney holder explaining the reason for the delay. Only then can the accused effectively contest the reason adumbrated in the affidavit filed by the complainant or his authorised power of attorney holder.
15. Though the accused is out of picture till the complaint is taken cognizance of by the Court, an indefeasible right of the accused is found incorporated under Section 142(b) of the Negotiable Instruments Act. The Court, exercising its discretion under the proviso to the aforesaid provision of law, is empowered to make a dent in such a right of the accused by extending the period of limitation, on satisfying itself of the reasons assigned by the complainant.
16. The complainant cannot file an application seeking condonation of delay of thousand days and submit that the accused has no say in the matter, as he has not been summoned on taking cognizance of the case.
17. The order passed by the Court condoning the delay will definitely affect the interest of the accused. No order can be passed unless the party who is going to be affected by such an order is afforded sufficient opportunity to air his views on the reasons assigned by the complainant.
18. It is not only a matter between the complainant and the Court, but it is a question of deciding the valuable right of the accused who cannot be shut out from such proceedings.
19. Therefore the complainant or power of attorney holder will have to file an affidavit setting forth the reasons for the delay accompanied by a petition and the discretion of the Court to condone such a delay can be exercised only after affording an opportunity to the accused to contest the reasons assigned by the complainant.
20. In the cases before me, it is found that a petition has been filed by the complainant seeking condonation of delay of 28 days in preferring the complaint. The complainant shall file an affidavit setting out the reasons for the delay. The learned XVIII Metropolitan Magistrate, Saidapet, Chennai, shall thereafter issue notice to the accused to counter the reasons assigned in the affidavit accompanied by the petition and decide whether the complainant has given cogent reasons for the delay of 28 days to the satisfaction of the Court. But the Court finds that for the aforesaid curable defect, the complaints cannot be quashed as prayed for by the petitioners.
21. With the above observations, the criminal original petitions stand dismissed. Consequently, connected criminal miscellaneous petitions also stand dismissed.