- 1 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 1869 OF 2026 BETWEEN: SRI. ANJINAYULU.M. @MOODIGERI ANJINAYULU S/O. POSAIAH, AGED ABOUT 58 YEARS R/AT NO. 11, VINAYAKA LAYOUT, 1ST CROSS, SRINIVASAPURA, NEAR H.P. PETROL BUNK, YELAHANKA, BENGALURU - 560 064. …PETITIONER (BY SRI. KUMBAR VASANT FAKEERAPPA, ADVOCATE) AND: SRI. SRINIVASALU. S., S/O. SUBBAIAH AGED ABOUT 37 YEARS, R/AT NO. 8, KAVERI NAGAR A BLOCK, L.R. BANDE MAIN ROAD R.T.NAGAR POST, BENGALURU- 560 032. …RESPONDENT (BY SRI. MAHESH S.N, ADVOCATE) THIS CRL.P IS FILED U/S 482 OF CR.PC (FILED U/S 528 BNNS) PRAYING TO QUASH/SET ASIDE THE ORDER PASSED BY Digitally signed by SANJEEVINI J KARISHETTY Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 THE LEARNED LXVII ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN CRL.RP NO.90/2025 DATED 14.01.2026. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner/complainant now stands at the doors of this Court calling in question the closure of the complaint filed by him invoking Section 200 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' for short) for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the NI Act' for short). 2. Heard Sri. Kumbar Vasant Fakeerappa, learned counsel appearing for the petitioner and Sri. Mahesh S.N., learned counsel appearing for the respondent. 3. The petitioner and the respondent enter into a transaction. The transaction leads the complainant to file a private complaint against the accused for offence punishable under Section 138 of the NI Act. The complaint is preferred - 3 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 after a delay of 16 days. The complaint did not accompany with it an application seeking condonation of delay, the trial goes on. All along the petitioner/complainant had maintained that he had preferred the application within time, but when it was brought to the notice of the concerned Court, the court could not proceed further, as the complaint itself was filed after 16 days delay as obtaining under the statute. The complainant then files an application to get the said delay cured at the stage when the matter was set for argument. The concerned Court then closes the complaint against which the petitioner prefers a revision in Criminal Revision Petition No.90/2025, only to be rejected. It transpires that the concerned Court allows the application seeking condonation of delay against which the accused prefers an application before the Court of session in Criminal Revision petition No.90/2025. The order that allowed the application is upturned by the Revisional Court and therefore, the petitioner/complainant is before this court in the subject petition. 4. The issue lies in a narrow compass whether a complaint filed for offence punishable under Section 138 of the - 4 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 NI Act with a delay could be entertained without an application seeking condonation of delay. The issue need not detain this Court for long or delve deep into the matter. The Apex Court, in two of its judgments, has considered this issue. In H.S. OBEROI BUILDTECH PRIVATE LIMITED Vs. MSN WOODTECH1 the Apex Court has held as follows: “…. …. …. 6. Having considered the matter, we are of the opinion that the order taking cognizance and issuing summons needs interference. From a purely legal point of view where facts are admitted that the complaint was filed beyond the time prescribed under the statute, there cannot be an automatic or presumed condonation. In the present case, the respondent is on a weaker wicket for the reason, that the Trial Court proceeds on an erroneous presumption and notes that the complaint was filed within the limitation period. Even for the sake of argument, if it is assumed that the power under Section 142 of the Act exists for the Court to condone delay, the first requirement is that the Court has to take note of the fact that there is a delay and thereafter it had to go on the point whether the reasons which have been furnished by the complainant are sufficient to condone such delay and only then move on to take cognizance and proceed for issuing of summons. 7. In the present case, the same has absolutely not been done. The High Court opining that though there may have been delay but still the Trial Court is well within its power to condone the delay and in terms of Section 142(b) of the Act, filing of an application for condonation of delay is 1 2025 SCC OnLine SC 2906 - 5 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 not a statutory mandate, again in our considered view, is erroneous. 8. Once the statute prescribes a mandatory time limit for filing a complaint, there cannot be any deviation from the same except when an application accompanying the complaint is filed seeking condonation disclosing reasons for the delay and even then it is obligatory on the part of the Court to take note of such filing beyond limitation and to consider the reasons disclosed independently and to come to a judicious conclusion that in the facts and circumstances of that case condonation is justified. The same not having been done, the order cannot be sustained.” The Apex Court holds that once the statute prescribes the mandatory time limit for filing a complaint, there cannot be any deviation from the same, except when an application seeking condonation of delay is filed furnishing reasons for delay. 5. In the subsequent judgment, the Apex Court sets aside the cognizance being taken by the concerned Court on a complaint placed before the learned Magistrate with two days delay. The Apex Court holds that once the statute prescribed a time limit to file the complaint under Section 142(1)(b) of the NI Act, there can be no condoning of delay. In S. NAGESH Vs. SHOBHA S. ARADHYA2 the Apex Court holds as follows: 2 2026 SCC OnLine SC 18 - 6 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 “…. …. … 7. Perusal of the impugned order dated 28.06.2024 passed by the High Court reflects that the solitary issue focused upon by the appellant before the learned Judge was that the learned Magistrate could not have taken cognisance without first condoning the delay in the filing of the complaint. The learned Judge concurred with the view taken by the learned Magistrate that the delay in the filing of the complaint was actually two days and not more and that it was bonafide, justifying its condonation. Further, the learned Judge noted that the proviso to Section 142(1)(b) of the NI Act empowered the Court concerned to take cognisance of a complaint made even after the prescribed period of one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the NI Act, if the complainant satisfied the Court that he had sufficient cause for not making the complaint within that period. The learned Judge, therefore, observed that the legislature had conferred express power on the Court to take cognisance even in respect of a belated complaint, if sufficient cause for such belated presentation was established by the complainant. 8. Per the learned Judge, whether the Court condoned the delay after taking cognisance or whether it first condoned the delay and then took cognisance did not, in any way, vitiate the taking of cognisance as what was of consequence was whether the Court had condoned the delay in the presentation of the complaint. The learned Judge held that, if cognisance is taken without the delay in the presentation of the complaint being condoned, it would only be a curable irregularity. According to the learned Judge, it is only when the Court failed to condone the delay altogether, during the pendency of the proceedings, and went on to adjudicate the matter on merits that the proceedings would stand vitiated. - 7 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 9. On facts, the learned Judge observed that the learned Magistrate had taken cognisance on 09.10.2013 without noticing that the complaint had been filed with delay, perhaps being misled by the erroneous averment in the complaint that it was filed within time. However, upon noticing the delay of two days in the presentation of the complaint, the learned Magistrate had observed that his predecessor-in-office had taken cognisance without noticing the delay and kept the said issue alive. The learned Judge held that, as the complaint was of the year 2013 and the matter had been pending for more than 11 years, there was no justification in considering the delay of two days in the filing of the complaint as of consequence. The learned Judge affirmed the condonation of that delay by the learned Magistrate and upheld the cognisance taken, though it was irregular, observing that the said irregularity stood cured on the delay being condoned. The appellant's petition was, accordingly, dismissed. 10. The learned counsel for the appellant would argue that cognizance could not have been taken by the learned Magistrate of the belated complaint filed by the respondent without first considering and condoning the delay in the presentation of the complaint, provided sufficient cause was shown for such delay by her. He would contend that, in the light of the law laid down by a 3-Judge Bench of this Court in DashrathRupsingh Rathod v. State of Maharashtra3, the learned Judge of the High Court was in error in rejecting the quash petition of the appellant. 11. Despite service of notice, the respondent did not choose to enter appearance before this Court till after the judgment in this case was reserved on 02.12.2025. However, a mention was made on 05.12.2025 by the learned counsel who was instructed to appear for the respondent. He was, accordingly, permitted to file his written submissions after entering appearance for the respondent. In his written submissions, the learned counsel admitted that the respondent's complaint was filed on 09.10.2013 and cognisance was taken on the very same day. Though the learned counsel stressed upon the order dated 23.05.2014 passed by the learned - 8 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 Magistrate remaining unchallenged, we may note that it was only on 30.10.2018 that the learned Magistrate condoned the delay of two days, thereby validating the cognisance taken by his predecessor-in-office even before an application for condonation of delay was filed. Therefore, the failure of the appellant to challenge the earlier orders is of no consequence. More so, as the learned Magistrate had, in fact, reserved the right of the appellant to raise the issue of delay during the trial but, having stated so, the learned Magistrate, thereafter, took upon himself the task of deciding the limitation issue and condoned the delay by the later order dated 30.10.2018. 12. At this stage, we may note that, in Dashrath Rupsingh Rathod (supra), it was held that cognisance under Section 142 of the NI Act of an offence under Section 138 thereof is forbidden except upon a complaint, in writing, made by the payee or holder of the cheque in due course within one month from the date the cause of action accrues to such payee or holder under clause (c) of the proviso to Section 138. It was observed that the proviso to Section 138 simply postpones institution of criminal proceedings and taking of cognisance by the Court till such time the cause of action in terms of clause (c) of the proviso accrues to the complainant. 13. We may note that the proviso to Section 142(1)(b) of the NI Act was inserted by Act 55 of 2002, with effect from 06.02.2003. Section 142(1)(b), to the extent relevant, reads as under:— 142. Cognizance of offences.— (1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974) — (a) ………; (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. - 9 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 14. It is manifest from the clear and unambiguous language of the above proviso that the power conferred upon the Court to take cognisance of a belated complaint is subject to the complainant first satisfying the Court that he had sufficient cause for not making the complaint within time. The satisfaction in that regard, resulting in condonation of the delay, must therefore precede the act of taking cognizance. Ordinarily, a proceeding instituted with limitation-linked delay before a Court of law does not actually figure as a regular matter on its file until that delay is condoned. For example, Order XLI Rules 3A and 5(3) of the Civil Procedure Code, 1908, make this position amply clear in the context of belated presentation of civil appeals. Therefore, the approach of the High Court in treating this crucial aspect as a mere interchangeable exercise, i.e., either to first condone the delay or to first take cognisance, is not in keeping with the mandate of the aforestated proviso. We may note that the respondent was herself responsible for this imbroglio as she had made a categorical statement in her complaint that it was filed within time, when it was not. 15. On the above analysis, we have no hesitation in holding that the learned Magistrate erred in taking cognisance of the respondent's complaint under Section 138 of the NI Act, even before the delay of two days in its presentation was condoned. The order passed by the High Court refusing to quash the same is, thus, set aside.” (Emphasis supplied at each instance) The Apex Court finally holds that it has no hesitation in holding that the learned Magistrate had erred in taking cognizance of the respondent’s complaint under Section 138 of the NI Act even before the delay of two days was condoned. - 10 - HC-KAR NC: 2026:KHC:18923 CRL.P No. 1869 of 2026 6. In the light of the judgments of the Apex Court, there is no warrant of interference, as the complaint did not accompany with it an application seeking condonation of delay, which could not be cured at the time when the matter was set for argument. The concerned Court ought not to have entertained the application itself at that stage. 7. In that light, there is no warrant of interference with the order of the Court of Session, as it is in tune with what the Apex Court has held supra. 8. The petition lacking in merit stands rejected. Sd/- (M.NAGAPRASANNA) JUDGE JY List No.: 2 Sl No.: 19