JUDGMENT 1. HEARD Mr. Subrata Roy Karmakar, learned Advocate for the petitioner. 2. OPPOSITE party has been served with notice as per acknowledgement card but does not appear to contest, the application. Against the petitioners, the opposite party No. 1-complainant lodged a petition of complaint before the learned Chief Metropolitan Magistrate, Calcutta under section 138/141 of the NI Act. 3. SINCE the petition of complaint was delayed by 17 days, an application under section 142(b) dated 17.2.2009 was filed praying for condonation of delay. The learned Chief Metropolitan Magistrate by order dated 17.2.2009 observed that delay is a matter of evidence and the complaint was admitted provisionally laying the burden of proof for condonation of delay upon the complainant at the time of evidence, observing such cognizance was taken and the case was transferred to the learned Metropolitan Magistrate, 13th Court, Calcutta. This order dated 17.2.2009 is under challenge at the instance of the petitioners. 4. MR. Roy Karmakar, learned Advocate appearing for the petitioners submits that without condonation of delay, the learned Magistrate was without any jurisdiction to take cognizance of offence and issue process against the accused persons. I am fully in agreement with the submission of Mr. Roy Karmakar. This point has been decided by this Court in Gautam Kumar De and Anr. vs. Mis. Prime Movers Auto Associates (P) Ltd. and Anr., reported in 2009(1) C Cr. LR(Cal) 580. Taking cognizance of offence under section 138 of NI Act is a myth when the legal existence, of a petition of complaint is at stake. A petition of complaint can be said to be legally entertainable when it is free from the bondage of limitation. No cognizance can be taken of a time barred complaint. It is only when delay is condoned that the learned Magistrate can take cognizance of offence. The question of condonation of delay would arise only when before taking up the application for condonation of delay, notice is issued upon the proposed accused because the law is well-settled that a proposed accused has right to be heard on the point of condonation of delay. For, a time barred complaint, unless delay is condoned according to law, enures to the benefit of the proposed accused because a time barred complaint does not warrant punishment against proposed accused under the law. For, a time barred complaint, unless delay is condoned according to law, enures to the benefit of the proposed accused because a time barred complaint does not warrant punishment against proposed accused under the law. In this connection the decision in Gautam Kumar De (supra) may be referred to and it was observed as follows: "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 NI 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 Asiatic Oxygen and Acetylene Co. Ltd. vs. Registrar of Companies, West Bengal, reported in 1981(2) CHN 412 held at paragraph 7 as follows : "From the discussion of the rulings of the different High Courts it appears to ua that the proper and legitimate course for taking cognizance of an offence after extension of the period of limitation as contemplated under section 473, Cr. PC is to give prior notice to the proposed accused of the petition of complaint and the reasons put forward in a petition under section 473, Cr. PC 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,?8 and 6,3.80 passed by the Chief Metropolitan Magistrate in ease No, C/1147 of 1978. 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,?8 and 6,3.80 passed by the Chief Metropolitan Magistrate in ease 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 section 473, Cr, PC and hear the proposed accused and thereafter to pass appropriate orders on the said petition". 5. THIS decision haa surveyed a decision of the Privy Council in Krishnasamy vs. Ramasamy, reported in ILR 41 Madras 412 and the decision in Krishna vs. State of Madhya Pradesh, reported in 1977 Cr. LJ 90. In Bharat Hybrid Seeds and Agro Enterprise vs. 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 Law after the period prescribed for launching of the prosecution has been over and without giving him an opportunity to explain 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". 6. THE decision of Allahabad High Court in Prakash Chandra Sharma vs. Kanashal Kishore, reported in 1980 Cr. LJ 578, of the Rajasthan High Court in Panney Singh and Ors. vs. State of Rajasthan, reported in 1980 Cr. Absence of a rule of law shall not enable the Court to extend time for final prosecution without hearing the proposed accused". 6. THE decision of Allahabad High Court in Prakash Chandra Sharma vs. Kanashal Kishore, reported in 1980 Cr. LJ 578, of the Rajasthan High Court in Panney Singh and Ors. vs. State of Rajasthan, reported in 1980 Cr. LJ 339 and Delhi High Court in Jagamohan vs. 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. Situation thus the order of the learned Chief Metropolitan Magistrate dated 17.2.2009 and all subsequent orders passed by the transferee Magistrate are set aside. 7. THE learned Chief Metropolitan Magistrate to whom a copy of this order shall be sent shall cause service of notice upon the proposed accused persons for the purpose of hearing of the application of condonation of delay and if upon hearing the parties he decides to condone the delay, then and then only he can further proceed in accordance with law. 8. CRIMINAL section is directed to supply certified copy of this order, if applied for, to the learned Advocate for the petitioners expeditiously.