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2010 DIGILAW 204 (CHH)

Gyan Chand Jain v. Anand Bafane

2010-08-27

PRITINKER DIWAKER

body2010
JUDGMENT : Pritinker Diwaker, J. This petition is directed against the order dated 10.2.2010 passed by the Judicial Magistrate First Class, Durg in Case No. 243/2009 rejecting the application filed by the petitioner for dismissal of complaint on the ground that the complaint was barred by limitation and that without giving any opportunity of hearing to him the delay has been condoned and the case has been registered against him. Facts of the case in brief are that on 29.9.2006 the respondent/complainant herein filed a complaint case under section 138 of the Negotiable Instruments Act against the petitioner alleging inter alia that a cheque for Rs. 2,00,000 was issued by the petitioner on 15.2.2006 but the same was dishonoured by the bank and, therefore, the petitioner has committed an offence under Section 138 of the Negotiable Instruments Act. Apart from the complaint, the respondent/complainant had also filed an application under Section 142-B of the Negotiable Instruments Act for condonation of delay of 18 days in making the complaint. Reason assigned by the respondent/complainant for this delay having occasioned is that he was suffering from backache and was not in a position to move, he was advised for bed rest for three weeks and, therefore, he could not file the complaint within limitation. This application was supported by the affidavit of the complainant and also the medical certificate. Acting upon the said complaint, on 28.7.2007 after hearing the complainant/respondent, the Court below condoned the delay in filing the complaint, took cognizance in the matter and directed for registration of the case and issuance of notice against the petitioner. After receiving notice, on 14.9.2009 the petitioner filed an application before the Court below for dismissal of the complaint on the ground that delay in filing the same was condoned without giving him an opportunity and a mistake has been committed by the Court and therefore the entire complaint is liable to be dismissed. Application filed by the petitioner was duly replied by the respondent/ complainant on 7.10.2009 stating that there is no provision under Section 142-B of the Negotiable Instruments Act for giving an opportunity of hearing to the accused and therefore when sufficient reason has been assigned for filing the complaint with delay, Court below was justified in condoning the delay and taking cognizance of the matter. 2. 2. After hearing the parties, the Court below has rejected the application filed by the accused/petitioner holding that after considering all aspects of the matter the Court had directed for registration of the case and the Court cannot review its own order. 3. The core question to be decided by this Court is whether before condoning the delay in terms of proviso to Section 142-B of the Negotiable Instruments Act, proposed accused should be given an opportunity of hearing or not? Admittedly, the delay of 18 days has been condoned by the Court below without issuing any notice to the present petitioner. Contention of Shri Rajiv Shrivastava counsel for the petitioner is that by not filing the complaint within prescribed period, a right has been accrued in favour of the petitioner and therefore the Court was obliged to first issue notice to the petitioner on the application for condonation of delay and then only it could have proceeded with the case. 4. On the other hand counsel for the respondent/complainant submits that as per the provisions of Section 142-B of the Negotiable Instruments Act, it is the matter between the complainant and the Court and if the complainant satisfies the Court that he had sufficient cause for not filing the complaint within the prescribed period, the Court is not required to issue any notice to the proposed accused and it can straightaway condone the delay and entertain the petition. 5. While dealing with almost the similar issue in the matter of Gautam Kumar De and another v. M/s. Prime Movers Auto Associates (P) Ltd. and another, reported in 2009 (3) Crimes 524 (Cal.) it has been held by the Calcutta High Court as under: "7. This decision has surveyed a decision of the Privy Council in Krishnasamy v. Ramasamy and the decision in Krishna v. State of Madhya Pradesh, (1977 Cri LJ 90). In Bharat Hybrid Seeds & Agro Enterprise v. The State, it has been : (1971 Cri LJ 61). "When the Court extends the time, it means if it interfering with the rights of the accused which have vested in him by virtue of the expiry of period of limitation. In Bharat Hybrid Seeds & Agro Enterprise v. The State, it has been : (1971 Cri LJ 61). "When the Court extends the time, it means if it 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 for 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." 8. The decisions of Allahabad High Court in Prakash Chandra Sharma v. Kaushal Kishore, 1980 Cri LJ 578, of the Rajasthan High Court Panney Singh & Ors. v. State of Rajasthan, 1980 Cri LJ 339 and Delhi High Court in Jaganmohan v. State, 1980 Cri 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." Further, in the matter of Shri Krishna Sanghi and other v. State of Madhya Pradesh, reported in 1996 MPLJ, 559, it has been held by Madhya Pradesh High Court as under: "7. Learned Counsel appearing for both the parties requested me to lay down the procedure to be followed by the trial Courts in such cases since this is a new provision incorporated in the Code of Criminal Procedure, 1973. Learned Counsel appearing for both the parties requested me to lay down the procedure to be followed by the trial Courts in such cases since this is a new provision incorporated in the Code of Criminal Procedure, 1973. Whenever a complaint or a chalan is filed at the instance of any person or any police officer, the Court must first see that section 468 of the Code of 1973 is attracted or not. If it does, it should not register the case but give an opportunity to the person or the police officer filing the complaint or chalan to satisfy it on the point of limitation for purposes of condonation of delay. As regards the condonation of delay it should not be done as a matter of course. The delay has to be condoned with exercise of judicial discretion. Section 473 of the Code empowers the Court to condone such delay if sufficient cause has been shown or if the interests of justice make it necessary to do so. But the application of the section would always depend upon the facts and circumstances of each case of which the Court would be required to exercise its judicial discretion in the matter, like an application under section 5 of the Limitation Act, 1963. At this stage I would also like to point out that the provisions of section 473 of the Code should also be liberally construed like section 5 of the Limitation Act so as to advance substantial justice when no negligence or inaction or want of bona-fides is imputable to the prosecutor but cannot be construed too liberally because the Government is the prosecutor or prosecution is upon police report. After the delay is condoned by the Court on its being satisfied by the process referred to above, then alone it would register the case and proceed with the same in accordance with law. Before condoning the delay, although I do not find any provision of giving of notice to the accused person in Chapter XXXVI of the Code, but natural justice demands that the accused persons must be heard before passing an order in that regard as such an order is bound to affect a valuable right which accrues to the accused and which cannot be allowed to be taken away lightly. As such, they have to be heard when an application under section 473 of the Code is moved by the prosecution before cognizance is taken." In yet another decision in the matter of Himachal Pradesh v. Tara Dutt and another, reported in AIR 2000 SC 297 , it has been held by the Supreme Court thus: "7. Section 473 confers power on the Court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the Court taking cognizance, wherever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence. But the provisions are of no application to the case in hand since for the offences charged, no period of limitation has been provided in view of the imposable punishment thereunder. In this view of the matter we have no hesitation to come to the conclusion that the High Court committed serious error in holding that the conviction of the two respondents under Section 417 would be barred as on the date of taking cognizance the Court could not have taken cognizance for the said offence. In this view of the matter we have no hesitation to come to the conclusion that the High Court committed serious error in holding that the conviction of the two respondents under Section 417 would be barred as on the date of taking cognizance the Court could not have taken cognizance for the said offence. Needless to mention, it is well settled by a catena of decisions of this Court that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of a minor offence if the facts established indicate that such minor offence has been committed." 6. It is thus a settled legal position that extension of time amounts to interference with the rights of the accused vested in him by virtue of expiry of period of limitation, and therefore even assuming that no rule of law is in existence requiring the Court for issuance of the notice to the proposed accused and give him an opportunity of hearing in regard to extension of time, principle of natural justice requires that condonation of delay and extension of time can be done only after giving the proposed accused an opportunity of being heard. It would be in transgression of the principle of natural justice to condone the delay occasioned in making the complaint, without giving an opportunity of hearing to the proposed accused. Even if there is no rule of law in existence enabling the Court to extend the time or condone the delay already occasioned, opportunity of hearing to the proposed accused is a must. Moreover, from the order impugned it appears that while passing the same, the Court below has not considered all the material facts of the case and has allowed the application of the non-applicant for condonation of delay in a superficial manner. It is expected from the Court below to consider all the relevant facts of the case while entertaining any such application. 7. Thus, the petition is allowed and the impugned order dated 10.02.2010 is set aside. Learned Magistrate is directed to hear the complainant and the proposed accused regarding the prayer for condonation of delay in terms of the proviso to Clause-B to Section 142 of the Negotiable Instruments Act and pass the order afresh in accordance with the provisions of law. Thus, the petition is allowed and the impugned order dated 10.02.2010 is set aside. Learned Magistrate is directed to hear the complainant and the proposed accused regarding the prayer for condonation of delay in terms of the proviso to Clause-B to Section 142 of the Negotiable Instruments Act and pass the order afresh in accordance with the provisions of law. It is made clear that this Court has not expressed any opinion on the merits of the case and the learned Magistrate would decide the application in accordance with law without being influenced by any observation made by this Court. Petition allowed.