IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 Crl.MC.No. 3818 of 2009 ---------------------------------- [ST.NO.847/2006 OF CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM] .................... PETITIONER/ACCUSED: ---------------------------------- SUNNY GEORGE, CHARUVILA PUTHEN VEEDU, MEENKULAM, CHANNAPETTA.P.O., ANCHAL KOLLAM DISTRICT. BY ADV. MR.S.ABDUL RAZZAK. RESPONDENTS/COMPLAINANTN & STATE: -------------------------------------------------------------- 1. JESSY RAJAN, BUNGALOVIL PUTHENVEEDU, MARANGATTUKONAM, VALAKOM.P.O., KOTTARAKKARA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT COMPLEX, ERNAKULAM. R1 BY ADV.MR.BECHU KURIAN THOMAS, R2 BY PUBLIC PROSECUTOR MR. I.B. PRAMOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3818 OF 2009 ------------------------------------------ Dated 4th March 2010 O R D E R Petitioner is the accused and first respondent the complainant in S.T.847/2006 on the file of Chief Judicial Magistrate, Kollam. Annexure-A1 complaint was not filed within statutory period. A petition was filed by the first respondent to condone the delay and to receive the complaint. Paragraph 10 of Annexure-A1 complaint shows that complaint was filed with a delay of 100 days and a petition to condone the delay under Section 142 (b) of Negotiable Instruments Act was also filed, along with separate affidavit. Learned Magistrate without sending notice to the petitioner, condoned the delay and took Crmc 3818/09 2 cognizance for the offence under Section 138 of Negotiable Instruments Act. Summons was issued to the petitioner and he appeared and subsequently failed to appear and non bailable warrant was issued and ultimately he surrendered and was released on bail. First respondent was examined as PW1. He was cross examined. Thereafter case was posted for further evidence. At that stage, this petition under Section 482 of Code of Criminal Procedure is filed contending that learned Magistrate could not have taken cognizance of the offence without condoning the delay of 100 days and delay could be condoned only with notice to the petitioner and after granting opportunity to oppose the application and as it was not done, the cognizance taken is to be quashed. Crmc 3818/09 3 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Learned counsel relying on the Division Bench decision of this court in Abdurehiman v. Sethu Madhavan (2006 (4) KLT 33) argued that in the application to condone the delay notice was not given to the petitioner, the cognizance taken is bad and hence it is to be quashed. 4. Learned counsel appearing for first respondent argued that even though no notice was served on the petitioner in the application for delay, learned Magistrate was satisfied of the grounds shown by the first respondent to condone the delay and condoned the delay and had taken cognizance for the offence and first respondent was examined and he was cross examined by the petitioner and Crmc 3818/09 4 at that stage he is not entitled to challenge the cognizance taken. It was also argued that in any case, petitioner has waived the right if any available, by not challenging the order allowing the petition to condone the delay and participated in the trial and therefore, on that ground also the cognizance taken cannot be quashed. Learned counsel also argued that Section 142(b) of Negotiable Instruments Act does not provide for giving notice to an accused and it being a pre-cognizance stage, an accused has no right to be heard at that stage and therefore, when the court has condoned the delay after satisfying the cause shown, petitioner is not entitled to challenge the same. 5. Annexure-A1 complaint itself shows that there was a delay of 100 days in filing Crmc 3818/09 5 the complaint. Proviso to clause (b) of Section 142 enables the court to take cognizance even after the period prescribed under Section 142 provided, complainant satisfies the court that he has sufficient cause for not making a complaint within such period. 6. True, the proviso does not provide that a notice is to be served on the accused before the delay is condoned on satisfaction of the cause shown by the complainant. It is also true that at the pre-cognizance stage, an accused is not entitled to get notice or is having any right to be heard. But if a complaint is not filed within the statutory period, even if a complaint is filed alleging that offence under Section 138 is committed the accused can never be convicted, unless Crmc 3818/09 6 delay is condoned. Therefore, when complaint is not filed within the statutory period, a right is accrued to the accused to get order of acquittal. If that right is to be taken away, by operation of clause (b) of Section 142, natural justice demands that accused must be given an opportunity to be heard. Therefore, even if the proviso does not specifically provide that notice is to be served on the accused, before condoning the delay, natural justice demands that the accused must be given a notice and he must be given an opportunity to oppose the application by showing that the cause shown in the petition to condone the delay is not sufficient. The court must decide, whether the delay is to be condoned or not only after affording the opportunity to the accused. Crmc 3818/09 7 7. Division Bench of this court in Abduhehiman's case (supra) considered the necessity to give notice to an accused before condoning the delay, in view of proviso to clause (b) of Section 142. It was held. “But as opined by the learned Judge in Vijayan's case, supra (2005 (2) KLT 344) if there is delay in filing a complaint before reaching satisfaction by the court the court should give notice to the respondent and after hearing the respondent the court should satisfy itself as to whether the complainant had sufficient cause for not making the complaint within the specified period. In our view, a detailed enquiry giving opportunity to the parties to adduce oral evidence is not necessary at the stage of taking cognizance to decide Crmc 3818/09 8 whether delay deserves to be condoned under S.142 of the Act. Court can exercise its discretion at its initial stage and decide whether the delay has to be condoned or not.” 8. Question whether a Magistrate can condone the delay and receive a final report after the period of limitation was considered by the Honourable Supreme Court in State of Maharashtra v. Sharadchandra Vinayak Dongre and others (1995 KHC 732). That was a case where final report was submitted before the court and was returned as incomplete and later re-presented after much delay with an application to condone the delay in filing the charge sheet. It was allowed by Chief Judicial Magistrate, without notice to the accused. That order was challenged before the High Crmc 3818/09 9 Court of Bombay and High Court found that Chief Judicial Magistrate was aware of the application filed by the prosecution that charge sheet was incomplete and as such, it could not have taken cognizance of the offence and issued process against respondents and quashed the cognizance taken. It was challenged before the Apex court. Their Lordship held, “In our view, High court was perfectly justified in holding 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 any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High court, Crmc 3818/09 10 without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the court to file a “supplementary charge sheet” on the basis of an 'incomplete charge sheet' and quashed the order of the CJM dated 21/11/1986 on this ground also. This view of High court, in the facts and circumstances of the case is patently erroneous.” 9. Though learned counsel appearing for first respondent argued that decision Crmc 3818/09 11 based on the provisions of Code of Criminal Procedure cannot be made applicable, in respect of Negotiable Instruments Act, I cannot agree with the submission. There is no difference in the principle. If the condonation of delay would affect a right, which is otherwise available to an accused, in law he is entitled to be heard before condoning the delay, so as to deny him that right which has already accrued to him. Learned Magistrate was not justified in condoning the delay, without issuing notice to the petitioner and granting him an opportunity to show that there is no sufficient cause to condone the delay. It is mandatory but for the condonation of delay, petitioner cannot be prosecuted as complaint was not filed within the statutory period and Crmc 3818/09 12 consequently the complaint could only be rejected. Therefore, the cognizance taken can only be quashed. That legal finding cannot be altered for the reason that petitioner did not challenge that order immediately or on the ground that he participated in the trial by cross examining the complainant. 10. Then the only question is what should be done, if the cognizance is taken is to be quashed. Learned counsel appearing for the petitioner submitted that the Magistrate may be directed to pass orders in the application for condonation of delay after hearing the petitioner and if it is found that the delay is to be condoned, learned Magistrate may be directed to proceed from the stage it has now reached. Learned counsel appearing for the petitioner submitted that Crmc 3818/09 13 petitioner is entitled to raise all the contentions before condoning the delay and therefore, learned Magistrate is to be directed to start from the stage of taking cognizance once delay is condoned. 11. Though learned counsel appearing for the petitioner argued that petitioner is entitled to raise all the objections with regard to taking of cognizance of the offence once, the delay is condoned, I cannot agree with the submission. Before taking cognizance, an accused has no right to be heard. If that be at the pre-cognizance stage he can only raise the objection regarding condonation of delay, on the ground that the reasons shown in the application for condonation of delay are not sufficient. But at that stage he is not entitled to raise any other contentions. After Crmc 3818/09 14 taking cognizance alone, petitioner is entitled to raise the other objections. He has already raised the said available objections and cross examined the complainant. In such circumstances, if delay is condoned Magistrate can continue the trial from that stage and it is not necessary to start a de novo trial as it will not prejudice the petitioner and court will be relieved repeating the recording of the same evidence once again. In such circumstances, if the court finds that delay is to be condoned, then learned Magistrate to proceed from the stage at which the case now stands. If it is found that delay cannot be condoned, complaint can only be dismissed. Petition is allowed. Cognizance taken in S.T.847/2006 is quashed. Chief Judicial Crmc 3818/09 15 Magistrate, Kollam is directed to reconsider the petition filed by the complaint to condone the delay, after hearing the complainant and the accused. If the delay is condoned and cognizance taken, learned Magistrate to proceed with the case from the stage it has now reached. M.SASIDHARAN NAMBIAR, JUDGE. uj.