The short but interesting question that has cropped up in this petition is whether the trial court can condone the delay in filing a complaint under Section 142 of the Negotiable Instruments Act (for short Act) on the basis of an affidavit filed by the counsel for the complainant.

2. Relevant facts may be briefly noticed.

3. The petitioner is being prosecuted for an offence punishable under Section 138 of the Act. Respondent No.1 had filed the above complaint along with an application under Section 5 of the Limitation Act to condone the delay of two days in filing the complaint. The application was supported by an affidavit of the counsel for the complainant. When the application came up for consideration, the petitioner contended that the delay was not liable to be condoned, since the application was not supported by the affidavit of the complainant himself. He pointed out that the proviso to clause (b) of Section 142 of the Act being unambiguous, the affidavit in support of the application for condonation of delay ought to have been filed by the complainant himself. However, the said contention was repelled by the learned Magistrate and the delay was condoned. The above order passed by the learned Magistrate is under challenge in this petition filed under Sections 397 and 401 of the Code of Criminal Procedure.

4. The Negotiable Instruments Act 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Law (Amendment) Act 1988 by which Chapter XVII was incorporated in the existing Act. Under Section 138 of the amended Act, dishonour of cheque, for reasons stated in the said provision, was made a penal offence. Under section 142 it was postulated that 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, if the said complaint was not filed within one month of the date on which the cause of action arose under clause (c) of the proviso to Section 138.

5. A new proviso to Section 142 of the Act was incorporated by the Amending Act 55 of 2002 with effect from February 6, 2003 enabling the court of competent jurisdiction to entertain a complaint which was filed after expiry of one month from the date on which the cause of action had arisen under clause (c) of the proviso to Section 138 of the Act. The relevant clause and the proviso are extracted hereunder:

"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."(emphasis supplied).

A perusal of the newly added proviso shows that the complainant has to satisfy the court that he had sufficient cause for not filing the complaint within the statutory period of one month.

6. It is contended by the petitioner that the complainant not having affirmed the contents of the affidavit stating the reasons for the delay, nor he having signed the application for condonation of delay, the court was not justified in accepting the affidavit of the counsel.

7. It is contended by learned counsel for the petitioner that dishonour of cheque having been made a penal offence, the provisions contained under the amended Act have to be strictly construed. Prior to the amendment of 2002, the complainant would have lost his right to prosecute the drawer of the cheque, if he failed to file the complaint within one month from the date of arising of the cause of action. It may be true that after the amendment in the year 2002, a court can take cognizance of the offence even after expiry of 30 days, if the complaint satisfies the court that he had sufficient cause in not filing the complaint within the prescribed time limit. Of course, the court is now given discretion in the matter. But still, the amended provision has to be construed strictly. In the case on hand, the counsel for the complainant had sworn to an affidavit explaining the reason for the delay in filing the complaint. Such an affidavit, filed by the counsel rather than by the complainant himself, ought not have been accepted by the learned Magistrate.

8. On the contrary, learned counsel for the complainant submits that the delay of 2 days in filing the complaint had occurred in the office of the counsel. Therefore the counsel had filed his own affidavit stating that the delay occurred since the file was misplaced by him in the office. It is thus submitted by the learned counsel that the learned Magistrate was therefore justified in accepting the affidavit of the counsel and condoning the delay.

9. It is true that the newly incorporated proviso does not stipulate or mandate that the complainant has to file an affidavit in support of the application for condonation of delay. But there is force in the contention of the petitioner that every application filed under Section 5 of the Limitation Act for condonation of delay in preferring an appeal or such other proceeding is always accompanied by an affidavit of the party litigant who seeks such condonation. Therefore, if the delay in filing the complaint under Section 142 of the Act is to be condoned, as enabled by the proviso to clause (b) of Section 142 of the Act necessarily, the complainant has to swear to an affidavit in support of the application for condonation. If such an affidavit is not on record, the court cannot condone the delay. The above contention is not entirely without merit.

10. It has to be remembered that the accused has an indefeasible right to challenge the veracity or correctness of the averments made in the application or the affidavit, as the case may be. If the application or affidavit is not filed by the complainant himself, the court while deciding the question of condonation of delay, may not be in a position to test the correctness or truthfulness of the averments made in the application. If the counsel for the complainant is allowed to file the application, unsupported by an affidavit of the complainant himself, all the averments made by the counsel will be only hear-say or secondary evidence. It is for that reason the courts insist that every application filed under Section 5 of the Limitation Act has to be supported by an affidavit of the party himself.

11. "Affidavit" as defined under the General Clauses Act 1897 "shall include affirmation and declaration in the case of the person by law allowed to affirm or declare instead of swearing". Affidavit is "a written or printed declaration or statement of facts, made formally and confirmed by the author or affirmed by the party making it, taken before a person having authority to administer such oath or affirmation" (Blacks Law Dictionary, VIth Edition).

12. It is pertinent to note that prior to the amendment of 2002, the payee or holder in due course of a cheque will lose the right to initiate prosecution against the drawer if he did not file the complaint within one month from the date of arising of the cause of action under clause (c) of the proviso to Section 138 of the Act. The dishonour of a cheque having been made a penal offence after the amendment of the Negotiable Instruments Act in the year 1988 (Act 66 of 1988), a court before which a complaint is filed has to necessarily ensure that the penal provisions of the Act are construed strictly. In that view of the matter, an application for condonation of delay under clause (b) of Section 142 of the Act has to be filed by the complainant himself. Even if an affidavit is not mandatory, the application has to be filed by the complainant himself and there must be an affirmation that the averments made in the application are correct.

13. There is yet another aspect of the matter. Under normal circumstances a full fledged enquiry may not be warranted while considering an application for condonation of delay, because the court can pass orders on the basis of the averments made by the parties in their respective affidavit and the counter affidavit. In this context a reference to the provisions contained in Section 296 in Chapter XXIII of the Code of Criminal Procedure which deals with evidence in inquiries and trials is also relevant:

"296. Evidence of formal character on affidavit: (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code."

A perusal of the above provision shows that the court can act on the affidavits of parties in any enquiry or trial, if the evidence to be tendered by any person is of a formal character. The newly added proviso to Section 142 of the Act empowers the Court to condone the delay in filing a complaint, if the complainant satisfies that he had sufficient cause for not making a complaint within the statutory period of limitation. Therefore if the statutory requirement is to be satisfied, the complainant who seeks the benefit of the proviso has to necessarily explain the reason for the delay. The best way to do this is to swear to an affidavit which can be acted upon by the Court, without the applicant being examined in Court under oath.

14. In the case on hand, the position is slightly curious. There may not have been any laches or delay on the part of the complainant in taking steps to file the complaint. As is revealed from the available materials, the complainant is stated to have entrusted the necessary documents to his counsel for filing the complaint. But the delay of two days had occurred in the office of the counsel as, according to him, he has misplaced the records of the case somewhere in the office. In that view of the matter, there was no impropriety in the counsel himself filing an affidavit stating the reasons for the delay. But the proper course would have been for the complainant himself to file an affidavit stating the reasons for the delay, along with which he could have produced the affidavit of his counsel also. But this was not done. Therefore, in my view, the learned Magistrate was not justified in condoning the delay on the strength of the affidavit filed by the counsel of the complainant. The learned Magistrate would have been eminently justified in accepting the explanation of the counsel for the complainant. But the delay could have been condoned only on the strength of the affidavit of the complainant himself.

15. Learned counsel for respondent No.1 submits that the complainant is prepared to swear to an affidavit and present it before the court. He prays that a direction may be issued to the court below to consider the application in the light of the affidavit that may be filed by the complainant himself in addition to the affidavit of the counsel which is already on record.

16. In the above facts and circumstances the impugned order is set aside. The learned Magistrate shall consider the application for condonation of delay afresh if the complainant swears to an affidavit of his own in support of the application. Learned Magistrate shall pass appropriate orders on the application afresh, in accordance with law.

Crl.R.P. is disposed of in the above terms.