1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 337 of 2008 Deep Narain ………..Applicant Versus Sanjay Kumar Chauhan ….Respondent Present: Mr. Pawan Misra, Adovcate for the applicant. Mr. Ganesh Kandpal, Advocate holding brief of Mr. P. S. Danu, Advocate for the respondent. Date of Decision: 30.08.2010 Hon’ble Sudhanshu Dhulia, J This Criminal Misc. Application was dismissed for non- prosecution on 29.7.2010. Now a restoration application being no.724/10 has been filed by the applicant for recalling the order dated 29.7.2010 and to restore the present application to its original number. The grounds shown in the restoration application seem to be bona fide. Restoration application is allowed. Order dated 29.7.2010 is recalled. The criminal misc. application is restored to its original number. In view of the law laid down in Madhumilan Syntex Ltd. and others Vs. Union of India and another reported in 2007 AIR SCW 1971 the matter is liable to be heard and disposed of at this stage itself. Heard Mr. Pawan Misra, advocate for the applicant and Mr. Ganesh Kandpal, advocate holding brief of Mr. P. S. Danu, advocate for respondent. This Criminal Misc. Application under Section 482 of Cr. P. C. has been filed challenging order dated 7.5.2007, summoning order dated 28.6.2007 and subsequent proceedings in Criminal Case No.1252 of 2008 Sanjay Kumar Chauhan Vs. Deep Narain under Section 138 of the Negotiable Instruments Act, 1881 pending before the court of Additional Chief Judicial Magistrate, Ist, Dehradun. Admittedly in the present case a complaint under Section 138 of Negotiable Instruments Act, 1881(from hereinafter referred to as the ‘Act’) was filed by the complainant beyond a period prescribed by the statute which is given in Section 142 (b) of the Act under which complaint under Section 138 of the Act has to be made within a period 2 of one month from the date on which cause of action arose under Section 138 (c). The case of the applicant is that the cause of action arose on 12.3.2007 when the notice was given under Section 138 (c) of the Act. The fact that there was a delay in filing the complaint has been admitted by the complainant inasmuch as the complainant also moved a delay condonation application under Section 142 of the Act. In the summoning order, therefore, there is a patent infirmity inasmuch as before hearing the accused on the delay, cognizance was taken by the Magistrate and summoning order was passed, the counsel for the appellant would argue. It is a settled principal of law that since it was a time barred complaint the other side gets valuable right and, therefore, a time barred complaint cannot be considered on merit unless the delay is first condoned. However, before condoning the delay the accused was liable to be heard. This has not been done by the learned Magistrate. Therefore, this case is also covered by a decision of this Court dated 18.5.2010, namely, Ajay Kumar Garg Vs. State of Uttarakhand and another [Criminal Misc. Application C482 No. 436 of 2010]. Learned counsel for the applicant has also cited a decision of Delhi High Court in Prashant Goel Vs. State & another, 2007 (1) Criminal Court Cases 838 (Delhi). As such, the orders dated 7.5.2007 and 28.6.2007 (Annexure Nos. 4 and 5 respectively to the application) are hereby set aside and the matter is remanded back to the court below to decide afresh. It is hereby directed that the Magistrate shall first issue notices on the delay condonation application of the complainant and only after hearing the accused on the said application, in case the court below deems it fit the delay will be condoned and thereafter the matter shall proceed. With these observations, the present C-482 application is disposed of. No order as to costs. Since, the matter pertains to the year 2007 and there is already delay in the matter, it is directed that both the applicant and the complainant shall be present before the court of Additional Chief 3 Judicial Magistrate, Ist Dehradun on 13.9.2010, and the court below will hear the parties on the delay condonation application. Registry is directed to send a copy of this order along with the lower court record to the court concerned for necessary compliance. Disposed accordingly. (Sudhanshu Dhulia, J) 30.08.2010 Avneet