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2010 DIGILAW 39 (AP)

D. Shyam Sunder v. Nella Prabhu Lingamurthy

2010-02-01

SAMUDRALA GOVINDARAJULU

body2010
Judgment : 1. This petition is filed by the accused under Section 482 Cr.P.C for quashing proceedings in C.C. No.397 of 2006 on the file of Additional Judicial Magistrate of the First Class, Karimnagar relating to offence punishable under Section 138 of Negotiable Instruments Act. 2. The 1st respondent filed private complaint in the lower Court against the accused alleging offence punishable under Section 138 of the Negotiable Instruments Act on the ground that cheque issued by the accused towards discharge of legally enforceable debt was dishonoured by banker of the accused for want of sufficient funds in his account. The dishonoured cheque was returned to the complainant with cheque return memo dated 13.06.2005 with an endorsement of “insufficient funds”. Thereupon, the complainant got issued statutory notice on 17.06.2005 calling upon the accused to pay amount covered by the cheque. It was received by the accused on 18.06.2005 and the accused sent reply notice dated 02.07.2005. The private complaint was filed in the lower Court on 14.09.2005 with delay of 41 days in presenting the complaint. The complainant filed separate petition in Crl.M.P. No.3639/2005 in the lower Court under Section 142 of the Negotiable Instruments Act for condonation of the said delay of 41 days in presenting the complaint in the lower Court. The lower Court, after hearing the complainant’s counsel, passed order dated 10.11.2005 condoning the delay; and thereafter took cognizance of the offence against the accused. 3. It is contended by the petitioner’s counsel that order passed by the lower Court condoning the delay is not in accordance with law as it is an order without reasons and passed in a summary manner. Reliance was placed on State of H.P V. Tara Dutt (2000. 1 Supreme Court Cases 230 by the petitioner’s counsel in this regard. It was a decision rendered under Section 473 Cr.P.C, which is akin to Section 142 of the Negotiable Instruments Act. It was held therein by the Supreme Court that discretion thereunder has to be exercised judicially and on well recognised principles and that the same must be by a speaking order indicating satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice and that there should be a positive order to that affect. In the case on hand, the lower Court passed order dated 10.11.2005 accepting reasons put forward by the complainant for the delay. It is contended that the lower Court simply re-produced reasons without considering those reasons. According to the complainant, delay of 41 days was caused from 04.08.2005 onwards and the same delay was not intentional and was due to illness of the complainant because the complainant suddenly fell ill suffering from viral fever. The complainant also filed medical certificate issued by Dr.R.Vittal Reddy of Karimnagar to the affect that the complainant took treatment from him during the above period for the said illness. 4. Be that as it may, it is further contended that the petitionr’s counsel that the lower Court should have given notice to the accused before passing order in Crl.M.P.No.3639/2005 condoning delay of 41 days in presenting the complaint. There is no dispute that the lower Court passed order dated 10.11.2005 without giving notice to the accused and without affording opportunity to the accused to contest the petition for condonation of delay and to dispute allegations contained therein. No doubt, Section 142 of the Negotiable Instruments Act does not expressly provide for issuing of prior notice to the accused/respondent therein before passing an order in a petition filed by the complainant thereunder. But it has no ground for the lower Court to pass an order condoning the delay behind the back of the accused. After expiry of period of limitation for filing of the private complaint i.e., after 45 days of giving statutory notice by the complainant, there vests a right in the accused for not being prosecuted for offence punishable under Section 138 of the Negotiable Instruments Act. The said vested right of not being prosecuted can be taken away only after hearing the accused by giving notice to the accused before condonation of delay in filing the complaint. Lord Russel said in Fairmount Investments Ltd. V. Secretary of State for the Environment [1976] 1 WLR 1255 “it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles”. 5. 5. When the public law prescribes compliance of principles of natural justice by quasi judicial and even administrative authorities, it cannot be contended that criminal law particularly Section 142 of Negotiable Instruments Act is an exception to the principles of natural justice. In Uma Nath Pandey V. State of U.P AIR 2009 SUPREME COURT 2375 by considering failure of giving notice in a revision petition filed under Section 397 Cr.P.C, the Supreme Court observed: “Concent of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute”. 6. Having regard to the fact that vested right of the accused of not being prosecuted after expiry of period of limitation is being deprived by passing the impugned order under Section 142 of the Negotiable Instruments Act, this Court is of the view that notice to the accused/respondent is mandatory as per principles of natural justice before passing any order by the criminal Court condoning the delay in filing the private complaint. In that view of the matter, order passed by the lower Court on 10.11.2005 is liable to be set aside with a direction to the lower Court to consider the petition Crl.M.P. No.3639/2005 afresh after giving notice to the petitioner/accused and after receiving his objections if any for that petition. 7. The Criminal Petition is ordered accordingly.