Judgment :- (1) Whether before condoning delay in the matter of entertaining a petition of complaint in terms of the proviso to Section 142 of the Nl Act a proposed accused should be heard or not is the question that calls for consideration in this application. (2) The petitioners issued certain cheques in favour of the opposite party Nos. 1 and 2 which got bounced. A demand notice followed. The petitioners received the notice but no payment was made. Hence, the complaint which was barred by time by 82 days. In the petition of complaint itself the cause of delay was advanced and prayer was made for condonation of delay. Learned Chief Metropolitan Magistrate by order dated 23rd August, 2007 condoned the delay of 82 days and took cognizance of offence on 25th September, 2007 and then issued process. The petitioners-accused entered appearance on 18th February, 2008, and then a petition was filed on 29th May, 2008 praying for recalling the order dated 23rd August, 2007 whereby delay was condoned without hearing the proposed accused persons. The said petition came to be rejected by the order dated 29th May, 2008 and hence this application under Section 482 of the Cr.P.C. (3) Mr. Asraf AN, learned Advocate for the petitioner submitted that a time barred complaint, unless delay is condoned according to law, enures to the benefit of the accused in this that on a time barred complaint no punishment is warranted under the law. When a prayer is made for condonation of delay by the complainant, it is the duty of the Court to direct service of the notice upon the proposed accused persons because they have a right to say that factually the grounds for condonation of delay are untrue and evidence could be advanced to rebut the grounds, no matter whether the Court is impressed with the grounds or not. But here in the instant case, the learned Magistrate did not afford the petitioner any opportunity of being heard in the matter of condonation of delay : and even the order dated 23rd August, 2007 whereby delay was condoned is very cryptic and does not contain any reason for such condonation of delay. But here in the instant case, the learned Magistrate did not afford the petitioner any opportunity of being heard in the matter of condonation of delay : and even the order dated 23rd August, 2007 whereby delay was condoned is very cryptic and does not contain any reason for such condonation of delay. It is submitted that the grounds for condonation of delay were false to the knowledge of the complainant and the proposed accused persons and if the proposed accused persons would have been given an opportunity of being heard they could have shown before the Magistrate how the grounds do not stand the test of truthfulness because the grounds factually were directed against the proposed accused person and in such circumstances, the proposed accused person demand a natural justice of being heard. (4) I have heard Mr. Aloke Ray Choudhury, learned Advocate appearing for the opposite party No. 2. Affidavit of service has been filed for the opposite party No. 1 but none appears for the said opposite party No. 1, though at one time Mr. Tirthankar Ghosh, learned Advocate appeared for the opposite party No. 1. (5) The primary wrong that has been committed by the learned Chief Metropolitan Magistrate must be brought to his notice. He has put the cart before the horse. By order dated 23rd August, 2007, he condoned the delay which is a matter which shall be traversed presently. But the subsequent order dated 25th September, 2007, though it has not been challenged in this application is illegal. The learned Magistrate read the petition of complaint and recorded the statement of the complainant under Section 200 of Cr.P.C and then held that prima facie case was made out and then observed that cognizance was therefore taken. This is impermissible because examination of the complainant and his witnesses either OR solemn affirmation or through affidavit for the purpose of deciding whether process would be issued or not takes place after cognizance is taken and not before that. (6) Now the question is whether the proposed accused persons have right of audience in the matter of condonation of delay in making the complaint under Section 138 of the Nl Act. (6) Now the question is whether the proposed accused persons have right of audience in the matter of condonation of delay in making the complaint under Section 138 of the Nl Act. The proviso to Clause (b) to Section 142 of the Act giving power to the Magistrate to condone the delay if sufficient causes are shown was not originally there in the said Section 142 but has been introduced by amendment of the Act with effect from 6th February, 2003. However, when the petition of complaint was filed, the amendment has come into force, as such the prayer for condonation of delay was entertainable. Now a Division Bench of this Court way back in 1981 in The Asiatic Oxygen and Acetylene Co. Ltd. v. The Registrar of Companies, West Bengal reported in (1981) 2 Cal HN 412 held at paragraph 7 as follows : -"From the discussion of the rulings of the different High Courts it appears to us that the proper and legitimate course for taking cognizance of an offence after extension of the period of limitation as contemplated under S. 473, Cr. P. C is to give prior notice to the proposed accused of the petition of complaint and the reasons put forward in a petition under S. 473, Cr. P. G for extending the period of limitation so that the accused can be heard before the offence is taken cognizance of and the Court taking cognizance of the offence can avoid the necessity of reviewing its own tentative decision. That procedure was not followed in the case before us while the learned Chief Metropolitan Magistrate recorded orders dated 18.8.78 and 6.3.80. The aforesaid orders were passed in violation of rules of natural justice. We, therefore, set aside the orders dated 18.8.78 and 6.3.80 passed by the Chief Metropolitan Magistrate in case No. C/1147 of 1978. The learned Chief Metropolitan Magistrate will, however, be at liberty to give notice to the accused named in the petition of complaint of the petition for condonation of delay filed by the complainant under S. 473, Cr.P. C and hear the proposed accused and thereafter to pass appropriate orders on the said petition". (7) This decision has surveyed a decision of the Privy Council in Krishnasamy v. Ramasamy, reported in ILR 41 Madras 412 and the decision in Krishna v. State of Madhya Pradesh reported in 1977 Cr LJ 90. (7) This decision has surveyed a decision of the Privy Council in Krishnasamy v. Ramasamy, reported in ILR 41 Madras 412 and the decision in Krishna v. State of Madhya Pradesh reported in 1977 Cr LJ 90. In Bharat Hybrid Seeds and Agro Enterprise v. The State reported in 1971 Cr LJ 61, it has been held : - "When the Court extends the time, it means it is interfering with the rights of the accused which have vested in him by virtue of the expiry of period of limitation. Therefore, even though there is no rule of law requiring the Court to issue notice to the proposed accused and to give him an opportunity for meeting the case of the complainant in regard to the extension of time, interest of justice and principles of natural justice require that the condonation of the delay and extension of time can be done only after giving a reasonable opportunity to the proposed accused. It would be violating the very principles of natural justice and, in fact, the very spirit of administration of justice, if a party prosecuted in a Court, of la w after the period prescribed for launching of the prosecution has been over and without giving him an opportunity to explatn his case as to why the delay should not be condoned. Absence of a rule of law shall not enable the Court to extend time for final prosecution without hearing the proposed accused". (8) The decisions of Allahabad High Court in Prakash Chandra Sharma v. Kanashal Kishore reported in 1980 Cr LJ 578, of the Rajasthan High Court in Panney Singh and Ors. v. State of Rajasthan reported in 1980 Cr LJ 339 and Delhi High Court in Jagamohan v. State reported in 1980 Cr LJ 742 in support of the proposition that proposed accused should be heard have been noted in the Division Bench decision of this Court. (9) In view of the Division Bench decision of this Court as above, it has to be held that the learned Magistrate was not justified in condoning the delay without giving the present petitioners an opportunity of being heard. (10) The effect is that orders dated 23rd August, 2007 and all subsequent orders including the order dated 29th May, 2008 are set aside. (10) The effect is that orders dated 23rd August, 2007 and all subsequent orders including the order dated 29th May, 2008 are set aside. The learned Magistrate shall hear the complainant and the proposed accused person concerning the prayer for condonation of delay in terms of proviso to Clause (b) to Section 142 of the Nl Act and pass order in accordance with law. (11) The application is allowed.