* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4048 OF 2008 M/s.V.H.Holding P.Ltd and Ors. .....Applicants. V/s. M/s.Ewart Investments Ltd and Ors. .....Respondent ======= Mr.Aabad H.H.Ponda with Mr.Mangesh Shirsat i/by. Mr.Vaibhav Sugdare,Advocate for applicants. Mr.K.T.S.Tulsi, Sr.Advocate with Mr.Shirish Gupte, Sr.Advocate with Mr.Sandeep Kapur with Mr.Gaurav Bhargava i/by. Subodh Desai, Advocate for respondent no.1. Mr.Archit Sakhalkar, adv.for respondent no.3. Mrs.A.A.Mane, APP for State. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 30TH JANUARY, 2009. P.C. : 1. The short question that arises for consideration of this court in the present application filed under Section 482 * 2 * Cr.P.C. is whether the applicants were entitled to be heard by the court of Sessions while deciding the application for condonation of delay in filing the Civil Revision Application by respondent no.1. For the reasons stated hereinafter, the question must is answered in the affirmative. 2. Applicant no.1 is a private limited company of which applicant no.2 is one of the Directors. Respondent no.1 company had filed a complaint being complaint no. 26/N/20078 against the applicants and respondent no.3 under Section 406, 409, 410, 420, 423 and 120B IPC. The learned Metropolitan Magistrate by his order dated 29th March, 2008 dismissed the complaint on the ground that no offence is made out therein against the applicants and respondent no.3. This order was challenged by respondent no.1 by filing an application under Section 482 Cr.P.C. before this court. By the order dated 2nd July 2008 the said application was dismissed on the ground that respondent no.1 has an appropriate, alternate and efficacious remedy of filing revision application under Section 397 Cr.P.C. in the court of Sessions. Thereafter, respondent no.1 presented Criminal Revision Application No.917 of 2008 to the court of sessions on 7th August, 2008. As there was delay of 41 days in filing the revision application, Misc. Application No. 1312 of 2008 was taken out for condonation of delay. This application came to be * 3 * decided by the court of sessions by its order dated 1st September, 2008. The present applicants were not made parties either to the revision application or to the application for condonation of delay. Consequently, the order of condonation of delay came to be passed without hearing the applicants. Thereafter, on 4th October 2008 the sessions court admitted the revision application and at the specific instance of respondent no.1 issued notice to the applicants. The applicants contend that the order dated 1st September 2008 condoning the delay in filing the revision application is liable to be set aside since the same was passed behind the back of the applicants and without affording an opportunity of hearing to them. If the order dated 1st September 2008 is set aside, as a consequence, the order dated 4th October 2008 admitting the revision application will also required to be set aside. 3. Mr.Ponda, learned counsel for the applicants submits that rules of natural justice demand issue of notice to the applicants with a view to give them an opportunity of being heard. By lapse of the period of limitation, a valuable right had accrued to the applicants and they are not to be deprived of it without an opportunity of hearing. The applicants would naturally be interested in the question of extension of limitation and hence cannot be denied hearing on that question. * 4 * He submits that even at the stage of launching of prosecution, if the provision of Section 468 Cr.P.C. are attracted and an application for condonation of the delay is to be considered, it has been held by the Apex Court and our High Court that the accused person should be given hearing by following rules of natural justice. In this connection he relies upon a decision the Apex Court and two decisions of our High Court which are as follows : (i) The State of Maharashtra V/s.Sharadchandra Vinayak Dongre and Ors. reported in 1995(3)Bom.C.R.page 4. (ii) Sharadchandra Vinayak Dongre & Ors. V/s.State of Maharashtra reported in 1991 Cri.L.J.page 3329,and (iii) Lehar Communication Pvt.Ltd & Ors. V/s.State of Maharashtra & Anr. reported in 2006 ALL MR (Cri) page 2085, 4. The first decision is of the Apex Court. While considering the order for condonation of delay passed without hearing the other side, the Apex Court held that the delay, if any, for launching the prosecution could not have been condoned without notice to the respondents and behind their back and without recording reasons for condonation of delay. The case was remitted to the trial Court for deciding the application filed by the prosecution seeking condonation of delay afresh in accordance * 5 * with law, after hearing both the parties. 5. The second decision cited is of a Single Judge of our High Court. It extensively considers the question of opportunity to be afforded to the accused of hearing before condonation of delay. It was sought to be contended before the Court that the accused persons are not entitled to hearing or notice as there is no express provision in that behalf in the Code. Our High Court considered the provision of Section 468 which prescribes periods of limitation and the provision of Section 473 that empowers the Court to condone the delay in filing the complaint and consider the same on merits. Our High Court held that Protection has been given to an accused person u/s 468(1) against belated and time barred prosecutions and this is certainly a benefit given in favour of the accused. It cannot, therefore, be said the S.468 does not confer a right on the accused persons to plead that an offence or offences disclosed in a complaint filed against him should not have been taken cognizance of as the prosecution was barred by limitation. The Court is duty bound on the presentation of the charge-sheet to consider the question of limitation and to see as to whether it is competent to take cognizance and whether the limitation has expired or not. Even if the Statute is silent a very valuable right arises in favour of the accused persons on account of the expiry of the prescribed * 6 * period of limitation and they are entitled to an opportunity of being heard and principles of natural justice inevitably require that they should be heard on the question of extension of period of limitation by the Court. Before taking cognizance of the offence, in case the charge sheet is presented after the expiry of the period of limitation, an opportunity of being heard should be given to the accused persons before extending the period of limitation. The order condoning delay admittedly is a judicial order and it cannot be passed mechanically and without notice to accused. 6. The third decision is the decision of a single judge of our High Court wherein delay in filing the complaint under Section 138 Negotiable Instruments Act was condoned without giving notice to the other side and it was held that the trial court had not fulfilled procedural requirements of issuing notice to the other side who would likely to be directly or indirectly affected by the order and give opportunity of hearing. On that ground, the order of condonation of delay as also subsequent steps taken thereafter were set aside. What is applicable at the stage of pre-cognisance is definitely applicable to the subsequent stage particularly when the trial court has held that the complaint as filed does not make out any offence at all. Mr.Ponda, the learned counsel for the applicants lastly relies * 7 * upon a decision of the Apex Court in the case of Babloo Pasi V/s.State of Jharkhand & Anr. reported in IV (2008) CCR page 444 (SC) and submits that the principle of audi alteram partem is now getting prominence in criminal cases also. He draws attention to para-10 of the decision which reads as follows : “10. Furthermore, by now it is well settled that save in certain exceptional situations, the principle of audi alteram partem mandates that no one shall be condemned unheard. It is a part of rules of natural justice and the soul of natural justice is “fair play in action”, which demands that before any prejudicial or adverse order is passed or action is taken against a person, he must be given an opportunity to be heard.” 7. In view of the above legal position, it must be held that in the first place, respondent no.2 ought to have joined the applicants as the parties to the revision application filed by them and the court ought to have issued notice. Even if the respondentno.2 were not to join the applicants as party to the revision application, it was necessary for the court to direct the other party to amend its proceedings and to join the opponents as party respondents to the application and afforded hearing. 8. Extensive arguments have been advanced before me against the need of hearing to be given to an accused person while deciding civil revision application. There is no need to go into the submissions and the authorities relied upon thereon in view of the fact that the learned counsel for respondent no.3 had on * 8 * his own requested the court of revision that in view of the observations laid down in reported cases of Shrirang Nagordhar Mahajan V/s. State of Maharashtra reported in 2006 Cri.L.J.page 2216 and Suresh Ramteke V/s. State of Maharashtra reported in 2002 All M.R.(Cri.) page 2230 and notices came to be issued to the applicants. Further, at paras 8 and 9 of the reply filed by respondent no.2 to the present petition, the same stand is reiterated. In the circumstances, the following order is passed. O R D E R (i) The application is allowed. (ii) The order dated 1st September, 2008 passed on Misc.Application No. 1312 of 2008 by the Court of Sessions at Bombay is set aside. As a consequence, the order dated 4th October, 2008 passed on Criminal Revision Application No. 917 of 2008 is also set aside. (iii) The Criminal Application No.4048 of 2008 is remanded to the Court of Sessions at Bombay for fresh hearing when the applicants would also be heard on the application. The parties to appear before the trial court on 17th February, 2009. (JUDGE) * 9 *