ORDER : Heard learned counsel appearing for both the parties. 2. The petitioner was the accused in criminal case No.433/2013 on the file of Senior Civil Judge and JMFC, Channapatna, initiated by the respondent-complainant herein for the offence punishable under Section 138 of Negotiable Instruments Act (for short ‘the Act’). 3. The case of the respondent-complainant is that he, being the President of SDM Committee in the School, had advanced hand loan of Rs.2,50,000/-to the petitioner-accused on 12.03.2009 for the purpose of repayment of loan already incurred by the petitioner-accused. The accused had promised to repay the loan amount on or before 31.08.2009 and had issued post dated cheque bearing No.101860 drawn on State Bank of Mysore, Channapatna Branch, dated 31.08.2009 in favour of the respondent-complainant. When the said cheque was presented for collection, it was returned with an endorsement dated 12.09.2009 by Cauvery Kalpatharu Grameena Bank as ‘insufficient funds’. Therefore, the respondent-complainant issued legal notice through his counsel to the revision petitioner-accused on 16.09.2009. On service of said notice, the accused has given untenable reply and has failed to pay the cheque amount thereby, the accused has committed the offence punishable under Section 138 of the Act. 4. In view of delay of 15 days in filing the complaint, the respondent-complainant had filed an application under Section 142B of the Act for condonation of delay in filing the complaint, but the trial Court did not consider the said application and proceeded to take cognizance and issue process. 5. The accused appeared before the trial Court and pleaded not guilty for the charges leveled against him for the offence punishable under Section 138 of the Act. 6. The trial Court, on analysis of the evidence adduced by respective parties, arrived at a factual finding that the petitioner-accused had duly issued the cheque in question for a sum of Rs.2,50,000/-for repayment of loan availed from the respondent-complainant, the cheque was presented to the bank for payment within the period of its validity, but the said cheque had been returned unpaid for want of funds in the bank account of petitioner-accused on which the cheque was drawn. The statutory notice of dishonour was duly issued for which the petitioner-accused has given untenable reply. The statutory notice of dishonour was duly issued for which the petitioner-accused has given untenable reply. Further it is held that in view of the presumption available under Section 139 of the Act and since the accused has not rebutted the presumption available under Section 139 of the Act and has not questioned the financial capacity of the respondent-complainant to advance the loan of Rs.2,50,000/-, the existence of the legally repayable debt proved, and the petitioner-accused has failed to repay the debt. Thereby, he has committed the offence punishable under Section 138 of the Act. 7. The first appellate Court affirmed the factual findings of the trial Court and has held that the cheque produced by the respondent-complainant admittedly belongs to the petitioner-accused and there is no denial of the signature found therein. The initial burden has been discharged by the respondent-complainant, as such, the presumption under Sections 118 and 139 of the Act comes into operation, but the petitioner-accused has failed to probablise his defence. With the said reasoning, the first appellate Court has dismissed the appeal filed by the revision petitioner-accused. 8. The trial Court and the first appellate Court have arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the petitioner-accused and both the Courts below have rejected the plea of the petitioner-accused that the respondent-complainant had no financial capacity to lend the loan. Being aggrieved by the concurrent findings of the Courts below, the petitioner-accused has preferred this revision petition. 9. Learned counsel for the revision petitioner-accused would contend that the matter has to be remanded back to the trial Court for hearing on the issue of limitation by providing an opportunity to the revision petitioner-accused to avail the remedy envisaged under the proviso to Section 142B of the Act. Further it is submitted that the trial Court has failed to consider the application filed by the respondent-complainant for condonation of delay and has proceeded to dispose of the criminal case on recording the evidence. The proceedings initiated without condonation of delay inspite of an application filed under Section 142B of the Act would be no proceedings in the eye of law. Therefore, the orders passed by the Courts below are liable to be quashed. The proceedings initiated without condonation of delay inspite of an application filed under Section 142B of the Act would be no proceedings in the eye of law. Therefore, the orders passed by the Courts below are liable to be quashed. In support of the aforesaid contentions, learned counsel has relied on the following decisions: i. ILR 2006 KAR 3771 in the case of Sajjan Kumar Jhunjhuhnwala and others vs. M/s.Eastern Roadways Pvt. Ltd.; and ii. 2015 (4) KCCR 3450 in the case of G.Thimmappa vs. Shivaraj. 10. Per contra, learned counsel for the respondent-complainant submitted that non-compliance of the procedure or non-consideration of the I.A. filed for condonation of delay does not vitiate the trial and on the said ground alone the conviction cannot be set-aside and the criminal case cannot be remanded for re-trial as there is no failure of justice or prejudice is caused to the petitioner-accused. In support of the aforesaid contentions, learned counsel has relied on the following decisions: (i). AIR 2012 SC 1485 in the case of Rattiram and Ors. v. State of M.P. through Inspector of Police; (ii). 2015 (4) KCCR 3450 in the case of G.Thimmappa vs. Shivaraj; and (iii). AIR 2014 SC 3512 in the case of Pawan Kumar Ralli v. Maninder Singh Narula. 11. In the present revision petition, the legality of the orders passed by the Courts below is challenged mainly on the ground of non-consideration of the point regarding delay in filing the complaint and also the application filed by the respondent-complainant under Section 142B of the Act for condonation of delay in filing the complaint. 12. Section 473 of Code of Criminal Procedure reads as under: 473. Extension of period of limitation in certain cases. Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. 13. Section 142 of Code of Criminal Procedure reads as under: 142. Injunction pending inquiry. 13. Section 142 of Code of Criminal Procedure reads as under: 142. Injunction pending inquiry. (1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter. (2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. (3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section. 14. The aforesaid provisions enjoins a duty on the Court to examine whether there is any delay in filing the complaint or initiation of proceedings, if so, whether such delay has been properly explained and also to see whether it is necessary to condone or ignore such delay in order to do justice. 15. In the present case, the complainant had filed an application under Section 142B of N.I.Act and Section 5 of Limitation Act supported by the affidavit sworn by him explaining the reason for 15 days delay caused in fling the complaint. Learned counsel for the petitioner-accused contends that when the application for condonation of delay is filed, the notice should have been issued on the said application to the accused, but the trial Court has posted the case for sworn statement of complainant and on recording the sworn statement, has taken cognizance of the offence punishable under Section 138 of the Act against the petitioner-accused and has directed the office to register the complaint and issued summons to the accused. As such, the accused had no opportunity to know about the delay caused in filing the complaint. 16. The first appellate Court, in appeal, has not considered this aspect of limitation. 17. In a decision reported in AIR 2014 SC 3512 in the case of Pawan Kumar Ralli v. Maninder Singh Narula, the Hon’ble Apex Court has observed in paragraph Nos.21, 22, 23 and 25 as under: 21. 16. The first appellate Court, in appeal, has not considered this aspect of limitation. 17. In a decision reported in AIR 2014 SC 3512 in the case of Pawan Kumar Ralli v. Maninder Singh Narula, the Hon’ble Apex Court has observed in paragraph Nos.21, 22, 23 and 25 as under: 21. It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay. But, the peculiar fact of the present case is that in the complaint, the complainant had only averred that he has sent the legal notice dated 24th May, 2012 but not mentioned about the handwritten note dated 27th April, 2012. Basing on the said averment, the learned Trial Judge was satisfied that the complaint is within the prescribed period of limitation. Hence, in this case, raising the plea of limitation and Court exercising the discretion to condone the delay did not arise at all. 22. In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the appellant raised in the grounds for the Special Leave Petition that he should have been allowed to move an application for condonation of delay before the Trial Court as the respondent has not suffered any prejudice by reason of 25 days delay, we strongly feel that the appellant should not have been deprived of the remedy provided by the Legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits. 23. In view of the settled principles of law in Rakesh Kumar Jain, MSR Leathers. Subodh S. Salaskar (supra) and in the peculiar facts and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. Subodh S. Salaskar (supra) and in the peculiar facts and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. On the other hand, the High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation. 25. For all the aforesaid reasons, in order to meet the ends of justice, we exercise our discretion under Article 142 of the Constitution and set aside the impugned judgment of the High Court quashing the criminal proceedings and restore the criminal proceedings before the Trial Court. The appellant is permitted to file an application for condonation of delay before the Trial Court and if such an application is filed, the Trial Court shall be at liberty to consider the same on its own merits, without being impressed upon by any of the observations by this Court, and pass appropriate orders. 18. In a decision reported in 2015 (4) KCCR 3450 in the case of G.Thimmappa vs. Shivaraj, the coordinate bench of this Court has observed in paragraph Nos.18 and 19 as under: 18. The pith and substance of the decision rendered in Pawan Kumar Ralli's case is that the trial Court is expected to meticulously look into as to whether there is any delay in filing the complaint and whether any application is filed seeking condonation of delay. If such an application is filed, it must be considered at the threshold and to proceed only if delay is condoned. 19. What is the sufficient cause for condonation of delay is dependent upon the facts of each case and delay may be liberally condoned without adopting a pedantic approach as held by the Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, (2007) 2 SCC 258 . The proviso to clause (b) of Section 142 came to be inserted in the year 2003 keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. If proceedings are held without condoning delay, such proceedings do not have any force of law. Mst. Katiji and Others, (2007) 2 SCC 258 . The proviso to clause (b) of Section 142 came to be inserted in the year 2003 keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. If proceedings are held without condoning delay, such proceedings do not have any force of law. If delay is noticed, the trial Court can even call upon the complainant to file an application for condonation of delay. 19. In a decision reported in AIR 2012 SC 1485 in the case of Rattiram and Ors. v. State of M.P. through Inspector of Police, the Hon’ble Apex Court has observed in paragraph No.34 and 35 as under: 34. In this regard, we may fruitfully reproduce the observations from Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1 wherein it has been so stated: - "In the Indian Criminal jurisprudence, the accused is placed on a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India." [Underlining is ours] 35. It would not be an exaggeration if it is stated that a `fair trial' is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of `fair trial' is crucifixion of human rights. It is ingrained in the concept of due process of law. It would not be an exaggeration if it is stated that a `fair trial' is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of `fair trial' is crucifixion of human rights. It is ingrained in the concept of due process of law. While emphasising the principle of `fair trial' and the practice of the same in the course of trial, it is obligatory on the part of the Courts to see whether in an individual case or category of cases, because of non-compliance of a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred. The seminal issue is whether protection given to the accused under the law has been jeopardised as a consequence of which there has been failure of justice or causation of any prejudice. In this regard, it is profitable to refer to the decision in Gurbachan Singh v. State of Punjab 21 wherein a three-Judge Bench has opined thus:- "This court in `Willie (William) Slaney v. The state of Madhya Pradesh, elaborately discussed the question of the applicability of Section 537 and came to the conclusion that in judging a question of prejudice, as a guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. 20. In view of the aforesaid decisions, it is necessary to consider whether due to non-consideration of the application under Section 142B of N.I.Act filed by the complainant for condonation of delay in filing the private complaint has jeopardized and has resulted in failure of justice or caused any prejudice to the rights of the accused. The every judicial act is subject to the procedure required by natural justice. It is fundamental to fair procedure that both sides should be heard and no Court shall overlook the said principle. 21. The every judicial act is subject to the procedure required by natural justice. It is fundamental to fair procedure that both sides should be heard and no Court shall overlook the said principle. 21. A perusal of the order sheet dated 18.11.2009, clearly disclose that there is office note No.2 regarding delay of 15 days in presentation of complaint and office note No.3 confirms that the complainant has filed an application under Section 142B of N.I.Act read with Section 5 of Limitation Act along with an affidavit for condonation of delay of 15 days in filing the above complaint. Despite a specific office note Nos.2 and 3, the learned Magistrate has proceeded to take cognizance of the offence on recording sworn statement and has issued summons without passing an order for issuance of notice on the application filed by the complainant under Section 142B of N.I.Act read with Section 5 of Limitation Act for condonation of delay. Thus, it is evident that the trial Court unilaterally deprived the accused to putforth his defence in respect of the right accrued to him on account of the delay caused in filing the complaint. The provisions of Section 142B of the Act will have to be read in tandem with Section 142A which starts with a non-obstante clause 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’. Clause (b) specifies that such complaint shall be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 142. When there is a delay in filing the complaint, necessarily the complainant will file an application for condonation of delay. When such application is filed, notice obviously will have to be issued to the other side before the order is passed either allowing the application or declining the same. Since no notice was issued on the application filed under Section 142B read with Section 5 of Limitation Act, the accused had no opportunity to raise objections regarding limitation. 22. For the foregoing reasons, this Court is of the view that the proceedings initiated against the petitioner-accused without considering the application for condonation of delay is not in accordance with law. Hence, the following: ORDER (i). 22. For the foregoing reasons, this Court is of the view that the proceedings initiated against the petitioner-accused without considering the application for condonation of delay is not in accordance with law. Hence, the following: ORDER (i). Revision petition is allowed. (ii). The judgment and order dated 16.02.2015 passed in C.C.No.433/2013 on the file of Senior Civil Judge and JMFC, Channapatna, and the judgment and order dated 02.01.2019 passed in Crl.A.No.5/2011 on the file of Principal District and Sessions Judge, Ramanagara, are set-aside. (iii). The matter is remanded to the trial Court to pass appropriate orders on the application under Section 142B of N.I.Act read with Section 5 of Limitation Act for condonation of delay, which is already on record, at the earliest and dispose of the matter on merits preferably within four months from the date of appearance of parties. (iv). Both the parties shall appear before the trial Court on 22.04.2021.