Final Order 1

Order Details: Order Below EX 1
Pdf Text: … 01 … C.C.NO.04/MISC/2018
MHMM180023282018
ORDER BELOW EXH.01 IN C.C.NO.04/MISC/2018
(Dated 12.12.2022)
1. This is an application to condon the delay to file the complaint
u/s.138 of the Negotiable Instruments Act. There is delay of 60 days in
presentation of the complaint. The notice was issued to the accused for calling
say upon the application. The accused has failed to file his say.
2. As per the complainant, after dishonour of the cheque, complainant
sent a legal notice dated 16.09.2017 which was received by the accused on
19.09.2017. The cause of action arose on 04.10.2017. The complainant ought
to file complaint on or before 04.11.2017. The complaint has been filed on
04.01.2018. There is 60 days delay to file the complaint. It is contended that
the accused approached the complainant and requested not to proceed for the
period of 4 weeks meanwhile he will arrange the amount. The complainant
waited as per assurance given by the accused and due to this reason the
complainant failed to file his complaint within the limitation period.
3. In view of section 142 of Negotiable Instrument Act, no court
shall take cognizance of offence punishable u/sec.138 except upon a
complaint in writing made by the payee or holder in due course of the cheque
and such complaint is made within one month of the date on which the cause
of action arise under clause (c) of proviso to section 138, provided that the
cognizance may be taken after the prescribed period if the complainant
satisfies the court that he had sufficient cause for not making the complaint
within such period. In the present case, the complainant was unable to file
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present complaint within stipulated period as he was waited as per assurance
given by the accused. The delay is not an intentional. In such circumstances,
in my view, delay deserves to be condoned in the interest of justice. Hence, I
proceed to pass following order :
O R D E R
1. Delay in presentation of the complaint is hereby condoned
subject to cost of Rs.2,000/ payable to the State.
2. The complaint be registered as summary case after payment
of cost.
( M. Y. Wagh )
Metropolitan Magistrate,
Date : 12.12.2022 58th Court, Bandra, Mumbai.
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