- (1.) HEARD learned counsel for the petitioner and learned counsel for the respondents.
(2.) THE petitioner is aggrieved by the order dated 10.3.2010 passed by Shri Amit Sekhar, learned Judicial Magistrate, Ranchi, in Complaint Case No. 2533 of 2008, whereby the condonation application filed on behalf of the complainant under Section 142(b) of the Negotiable Instruments Act was allowed by the Court below in the interest of justice, and on the basis of material on record, prime facie case was found against the petitioner for the offence under Section 138 of the said Act and order was issued to issue process against the petitioner to face the trial. The petitioner has filed this writ petition praying to quash the said order, which has been brought on record as Annexure-2 to this writ petition. The facts of the case lie in a short compass. A complaint petition was filed in the Court of the Chief Judicial Magistrate, Ranchi, which was registered as Complaint Case no. 2533 of 2008. The complainant in the said complaint petition is the O.P. No. 2, Awadh Bihari Tiwari, who was the Chief Market Supervisor of Ranchi Municipal Corporation, Ranchi. The allegation against the petitioner in the said complaint petition is that on 5.5.2008, a cheque for Rs. 1,05,000/- was issued by the petitioner in favour of the Deputy Chief Executive Officer, Ranchi Municipal Corporation, Ranchi, bearing cheque No. 137399 drawn upon Canara Bank, Main Branch, Upper Bazar, Ranchi. It is alleged that when the said cheque was deposited to the Bank for realization of the money, the same bounced due to insufficient fund. It appears from the complaint petition itself, that on 1.7.2008 vide letter no. 2648, the accused-petitioner was noticed regarding bouncing of the cheque and he was directed to deposit the amount of the cheque, which was the bid amount, failing which, action against him under the Negotiable Instruments Act was to be initiated. It appears that in spite of notice having been given on 1.7.2008, the complaint petition was filed on 26.11.2008 i.e., much beyond the statutory period of 30 days as provided under Section 142 (b) of the Negotiable Instruments Act. However, from perusal of the complaint petition, it appears that subsequent thereto, another notice was also given to the petitioner, but the fact remains that first notice was given to the petitioner on 1.7.2008 itself.
(3.) IT also appears that an application for condonation of delay in filing the complaint was filed by the complainant, which was allowed by the Court below by the impugned order dated 10.3.2010 only stating that the said application is allowed in the interest of justice. No valid reason whatsoever, except the above, is given in the impugned order for condoning the delay in filing the complaint. The impugned order, in this respect is absolutely a non-speaking order, which cannot be sustained in the eyes of law. It is a well settled principle of law that the cause of action arises upon giving the first notice to the accused and once notice is given to the accused, the complaint petition is to be filed within the statutory period of 30 days. That having not been done in this case and the order condoning the delay being absolutely a non-speaking order, which cannot be sustained in the eyes of law, in my considered view, the impugned order, whereby prime facie case has been found against the accused petitioner, for the offence under Section 138 N.I. Act is again an absolutely illegal order and the same also cannot be sustained in the eyes of law.;