S. NAGESHversusSHOBHA S. ARADHYA

                   [2026] 1 S.C.R. 183 : 2026 INSC 27

                                S. Nagesh
                                    v.
                             Shobha S. Aradhya
                      (Criminal Appeal No. 75 of 2026)
                                06 January 2026
                [Sanjay Kumar* and Alok Aradhe, JJ.]


                            Issue for Consideration
       Issue arose as regards the correctness of the order passed by
       the Magistrate taking cognizance of the respondent’s complaint
       u/s.138 of the NI Act, even before the delay of two days in its
       presentation was condoned.

                                   Headnotes†
       Negotiable Instruments Act, 1881 – ss.138, 142 – Dishonour
       of cheque for insufficiency, etc., of funds in the account –
       Cognizance of offences – Magistrate taking cognizance of
       the complaint u/s.138, before the delay of two days in its
       presentation was condoned – Correctness:
       Held: Magistrate erred in taking cognizance of the respondent’s
       complaint u/s.138, even before the delay of two days in its
       presentation was condoned – It is manifest from the clear and
       unambiguous language of the proviso to s.142(1)(b) that the
       power conferred upon the Court to take cognizance 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 –
       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 – Thus, the approach of the High Court in
       treating this crucial aspect as a mere interchangeable exercise,
       either to first condone the delay or to first take cognizance, is not
       in keeping with the mandate of the proviso – Respondent herself
       responsible for this imbroglio as she had made a categorical



* Author
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       statement in her complaint that it was filed within time, when it
       was not – Order passed by the High Court refusing to quash the
       same set aside. [Paras 14, 15]

                               Case Law Cited
       Dashrath Rupsingh Rathod v. State of Maharashtra and Another
       [2014] 11 SCR 921 : (2014) 9 SCC 129 – referred to.

                                 List of Acts
       Negotiable Instruments Act, 1881; Code of Criminal Procedure,
       1973.

                              List of Keywords
       Magistrate taking cognizance of complaint u/s.138 NI Act; Delay;
       Condonation; Belated complaint; Cognizance.

                             Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       75 of 2026
       From the Judgment and Order dated 28.06.2024 of the High Court
       of Karnataka at Bengaluru in CRLP No. 9119 of 2018

                          Appearances for Parties
       Advs. for the Appellant(s):
       Ashwin V. Kotemath, Harisha S.R.

                 Judgment / Order of the Supreme Court

                                 Judgment

       Sanjay Kumar, J.

1.     Leave granted.
2.     Challenge in this appeal is to the order dated 28.06.2024 passed
       by a learned Judge of the Karnataka High Court in Criminal Petition
       No. 9119 of 2018. This petition was filed by S. Nagesh, the appellant
       before us, under Section 482 of the Code of Criminal Procedure,
       1973, seeking the quashing of the complaint in PCR No. 3144 of
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                               S. Nagesh v. Shobha S. Aradhya


       2013, which was converted as CC No. 1439 of 2014 on the file of
       the learned I Additional I Civil Judge and Judicial Magistrate First
       Class at Mysore1. The learned Judge rejected the petition, holding
       that the delay of two days in the filing of the complaint was bonafide
       and cognizance had rightly been taken.
3.     In her complaint in PCR No. 3144 of 2013, Shobha S. Aradhya, the
       respondent, averred as follows: The appellant had approached her
       husband and her, seeking financial assistance to purchase a house
       and to meet legal necessities. They lent him a sum of ₹5,40,000/-
       between the dates 27.01.2010 and 26.07.2010. He, thereafter, issued
       cheque dated 10.07.2013 drawn in her name for the said sum,
       assuring that it would be honoured upon presentation. However,
       the cheque was dishonoured on 17.07.2013 for insufficiency of
       funds. She got issued legal notice dated 13.08.2013 calling upon
       the appellant to pay the cheque amount within 15 days but the
       same was returned as ‘unclaimed’ on 22.08.2013. However, the
       copy of the notice sent through courier was not returned unserved
       and the same amounted to deemed service. However, no payment
       was made by the appellant. She, thereupon, filed the complaint
       praying that the Court take cognisance of the offence punishable
       under Section 138 of the Negotiable Instruments Act, 18812, and
       punish the appellant in accordance with law, apart from awarding
       her compensation.
4.     The then learned Magistrate, after perusing the complaint and
       the documents, noted the presence of the complainant and took
       cognisance, vide order dated 09.10.2013. However, by order dated
       23.05.2014, the successor learned Magistrate noted that, though
       there was a delay of two days in the filing of the complaint, his
       predecessor-in-office had already taken cognisance of the offence
       and granted liberty to the accused, viz., the appellant, to contest the
       delay at the time of the trial. The case was directed to be registered
       against the appellant for the offence punishable under Section 138
       of the NI Act and summons were directed to be issued to him to
       appear on the next date of hearing. It was reiterated that liberty was
       granted to the appellant to contest the delay at the time of the trial.


1    For short, ‘the learned Magistrate’
2    For short, ‘the NI Act’
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5.     Thereafter, by order dated 04.02.2016, the learned Magistrate noted
       that an application had been filed for condonation of the delay of two
       days in the presentation of the complaint and opined that the same
       required to be considered before the case went to trial on merits.
       Having considered the objections on the said application, the learned
       Magistrate passed order dated 30.10.2018 allowing it. Therein, it
       was noted that the complainant had stated in the condone delay
       application that she was suffering from viral fever and was, therefore,
       unable to present the complaint within time. The learned Magistrate
       also took note of the medical certificate produced by her, wherein
       it was stated that she was suffering from viral fever and was under
       treatment from 04.10.2013 to 07.10.2013. Opining that the delay of
       two days in the presentation of the complaint was purely bonafide,
       the learned Magistrate allowed the application; condoned the delay
       in the filing of the complaint; and directed issuance of a non-bailable
       warrant against the appellant.
6.     Aggrieved by this turn of events, the appellant approached the High
       Court by way of Criminal Petition No. 9119 of 2018. This petition was
       filed on 06.12.2018. Therein, the appellant contended that there was
       a delay of sixteen days in the filing of the complaint and not just two
       days. He pointed out that the respondent had filed the complaint on
       09.10.2013 and cognisance was taken by the learned Magistrate on
       the very same day. He contended that this procedure was totally
       opposed to the scheme of the NI Act. He further contended that
       the condonation of the delay of two days by the learned Magistrate,
       vide order dated 30.10.2018, was equally without jurisdiction and
       contrary to the statutory provisions. His specific argument was that
       the learned Magistrate did not have the jurisdiction to take cognisance
       before the delay was condoned and the steps taken to the contrary
       were in violation of the prescribed procedure. He also contested
       the matter on merits, denying his liability, and prayed for quashing
       of the complaint.
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
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                    S. Nagesh v. Shobha S. Aradhya


     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.
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.
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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 Dashrath Rupsingh Rathod vs. State of Maharashtra and
    another3, 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 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


3   (2014) 9 SCC 129
[2026] 1 S.C.R.                                                          189

                     S. Nagesh v. Shobha S. Aradhya


     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 Code of Criminal Procedure,
           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.
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 Code of Civil Procedure, 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
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       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.
       The appeal is accordingly allowed. In consequence, the complaint
       in PCR No. 3144 of 2013, which was converted as CC No. 1439 of
       2014 on the file of the learned I Additional I Civil Judge and Judicial
       Magistrate First Class, Mysore, shall stand quashed.

       Result of the case: Appeal allowed.




       †
           Headnotes prepared by: Nidhi Jain