Crl. O.P. No.20340 of 2005,Crl. MP. No.5952 of 2005

11th September, 2008

Petitioner Counsel: Mr. T. GOWTHAMAN
Respondent Counsel: Mr. V. RAGHAVACHARI

Cases Cited:
Sanjay Raghuram Vs. M/s. Telengana Investments and Finances Ltd., 2006-2- L.W. (Crl.) 607 [Para PARA2,7]
Prashant Goel Vs. State, 2007[1] CRIMES 78 [Para PARA6]

JUDGMENT

-The petitioner who is facing trial for the alleged offence under section 138 r/w 142 of the Negotiable Instruments Act, has come forward with this petition seeking for the relief of quashing the proceedings initiated against him in CC. No.81/2005 on the file of the learned Judicial Magistrate No.II, Erode.

2. The only grievance put forward by the learned counsel for the petitioner is to the effect that admittedly there was a delay in preferring the complaint and the learned Magistrate condoned the delay without ordering the notice and without affording an opportunity to the petitioner/accused to oppose the condone delay petition. It is submitted that in view of such procedure adopted by the learned Magistrate, the entire proceedings are vitiated and therefore, the proceedings pending against the petitioner are liable to be quashed. In support of his contention, the learned counsel placed reliance on the decision of this Court in Sanjay Raghuram and another Vs. M/s. Telengana Investments and Finances Ltd. reported in 2006-2- L.W. (Crl.) 607.

3. Per contra, the learned counsel for the respondent/complainant contended that as a matter of fact, the complainant preferred the complaint by filing the condone delay petition and the learned Magistrate after satisfying about the sufficient cause shown by the complainant to condone the delay, passed an order condoning the delay and thereafter, the complaint was taken on file. It is further submitted that the trial itself was already commenced and the complainant was examined in chief as well as the cross-examination also commenced and at that stage, the petitioner has approached this Court by filing the present petition. It is submitted that in the event of directing the learned Magistrate to give opportunity to the petitioner after the outcome of the hearing of the condone delay petition, as the trial itself was already commenced, the learned Magistrate may be directed to continue the trial proceedings from the stage of cross-examination of the complaint.

4. I have carefully considered the rival submissions made on either side and also perused the materials available on record.

5. The main question involved in this matter is to the effect whether condoning the delay without ordering notice to the accused, the petitioner herein is legally valid or not. The undisputed fact remains in this case that the learned Magistrate condoned the delay in preferring the complaint after having satisfied about the sufficient cause shown by the complainant without ordering notice to the petitioner and without affording an opportunity to the petitioner to oppose the condone delay petition. Now, the said question is well settled by a catena of decisions of this Court as well as other High Courts.

6. The Delhi High Court has held in Prashant Goel Vs. State and Another reported in 2007[1] CRIMES 78 that :-

"Irrespective of the provisions of code of Criminal Procedure or any procedural law by which a particular proceedings are governed, it is fundamental principle that no orders can be passed against a party which affects his rights prejudicially, without notice to that party and giving him a hearing. This principle of Audi Alteram Partem which is one of the Principles of Natural Justice is applicable in all proceedings including those where administrative action is taken against a person. Such a principle is applicable with much more force when the proceedings are judicial in nature, as in the instant case. Fair hearing is the most fundamental principle of administration of justice. Although the law of evidence and the procedural laws ensure it and statutes also provide for it, the principles of natural justice, which include the essentials of a fair hearing are invoked wherever there are gaps in the statutory law. Therefore, it would be no answer to say that Criminal Procedure Code is silent on this aspect. The Supreme Court has read these principles of natural justice into the provisions of the Criminal Procedure code in the case of Saheb Singh Vs. Haryana. It was held that although a High Court was competent to enhance the sentence of the accused while exercising the power of suo motu revisional jurisdiction under sections 397 and 401 of Cr.P.C., even without an appeal having been preferred by the State, it could do so only after giving a notice and an opportunity of being heard to the accused. Then we have much celebrated Judgment of Supreme Court in the case of A. R. Antulay Vs. R. S. Nayak which is an authority for the proposition that even a decision of the Supreme Court could be impugned on the ground that decision has been taken by the Court without affording to the accused an opportunity of being heard. The rules of natural justice are, therefore, important parameters of the fairness of the procedure. Obviously when the complaint is time barred, other side gets a valuable right inasmuch as time barred complaint cannot be considered on merits unless the delay is condoned. Therefore, accused shall have right to argue that in given circumstances delay be not condoned. Depriving the accused with such a valuable right and condoning the delay, would clearly be in violation of Principles of Natural Justice. It, therefore, would not make any difference whether the case originates on the lodging of the FIR as a State case and it is on the basis of the complaint filed by the complainant. The principles on which judgment is given by the supreme Court in the case of State of Maharashtra Vs. Sharadchandra Vinayak Dongre [supra] will thus clearly be applicable."

7. This Court has also held in Sanjay Raghuram and another Vs. M/s. Telengana Investments and Finances Ltd. reported in 2006-2- L.W. (Crl.) 607, that:-

"13. It is true that the Court has been given discretion to condone the delay in preferring the complaint beyond the period prescribed under Section 142(b) of the Negotiable Instruments Act, but that discretion will have to be exercised judiciously. The judicial discretion cannot be exercised arbitrarily and capriciously. The principles of natural justice also will have to be followed in exercising discretion by the Court.

14. ............

15. Though the accused is out of picture till the complaint is taken cognizance of by the court, an indefeasible right of the accused is found incorporated under Section 142(b) of the Negotiable Instruments Act. The Court, exercising its discretion under the proviso to the aforesaid provision of law, is empowered to make a dent in such a right of the accused by extending the period of limitation, on satisfying itself of the reasons assigned by the complainant.

16. .............

17. The order passed by the Court condoning the delay will definitely affect the interest of the accused. No order can be passed unless the party who is going to be affected by such an order is afforded sufficient opportunity to air his views on the reasons assigned by the complainant.

18. It is not only a matter between the complainant and the Court, but it is a question of deciding the valuable right of the accused who cannot be shut out from such proceedings.

19. Therefore, the complainant or power of attorney holder will have to file an affidavit setting forth the reasons for the delay accompanied by a petition and the discretion of the Court to condone such a delay can be exercised only after affording an opportunity to the accused to contest the reasons assigned by the complainant."

8. Therefore, it is crystal clear from the principles laid down by the Hon'ble Apex Court that the accused is having indefeasible right to oppose the condone delay petition and depriving such right would amount to a clear case of violation of principles of natural justice as in this case, admittedly no notice was ordered in the condone delay petition. Therefore, this Court is constrained to direct the learned Magistrate to give opportunity to the petitioner/accused herein to oppose the condone delay petition and after hearing both sides by affording sufficient opportunity, shall dispose of the said petition. In the event of condoning the delay, the trial shall continue from the stage of cross-examination of the complainant as the trial already commenced and the chief examination of the complainant was over. It is made clear that the petitioner shall be given opportunity to cross-examine the complainant as well as any further re-examination should be allowed.

9. The petition is disposed of accordingly. Consequently connected miscellaneous petition is closed.

10. Considering the fact that the case itself is related to the year 2005, the learned Magistrate is directed to expedite the trial as expeditiously as possible and more particularly, within a period of five months from the date of receipt of a copy of this order.

Ordered accordingly.