Final Order 1

Order Details: Order Below EX 1
Pdf Text: … 01 … C.C.NO.306/MISC/2021
MHMM180065992021
ORDER BELOW EXH.01 IN C.C.NO.306/MISC/2021
(Dated 19.05.2023)
1. This is an application to condon the delay to file the
complaint u/s.138 of the Negotiable Instruments Act. There is delay
in presentation of the complaint. The notice was issued to the
accused for calling say upon the application.
2. The accused has filed his say. The accused denied that the
complainant had ever paid a friendly loan amount of Rs.2,50,000/.
The accused denied that disputed cheque bearing No.884047 was not
given by the accused to the complainant towards the discharge of
legal liability. The accused denied his liability. Hence, he prayed to
reject the application.
3. As per the complainant, after dishonour of the cheque,
complainant sent a legal notice dated 09.09.2021 which was received
by the accused on 23.09.2021. The cause of action arose on
09.10.2021. The complainant ought to file complaint on or before
09.11.2021. The complaint has been filed on 23.11.2021. There is 13
days delay to file the complaint. It is contended that the complainant
was suffering from Enteric fever (Typhoid), Viral Hepatitis
(Jaundice), HTN (Hypertension) Gastritis and he was on complete
bed rest and medication from 10.10.2021 to 21.11.2021. He has filed
medical certificate issued by Dr.Amit R. Tiwari, Shanti Clinic at
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Exh.8. Due to this reason, he could not file his complaint within the
limitation period.
4. 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
present complaint within stipulated period due to his sickness. 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.1,000/ payable to the
State.
2. The complaint be registered as summary case after
payment of cost.
( M. Y. Wagh )
Metropolitan Magistrate,
Date : 19.05.2023 58th Court, Bandra, Mumbai.
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