IN THE HI6H COURT OF JUDICATURE AT BILASPUR. Cr.M.P. No. k ^1 <-^72010 PETITIONER (ACCUSED) ^^ ~_^" 6yan Chand Jain, son of Shri Chand Mal Parakh, aged 50 years, resident of Anupam Nagar, Rajnandgaon, District Rajnandgaon.(C6) Vs RESPONDENTS (COMPLAINANT) Anand Bafane, son of Shri Kasturchand Bafane, aged 33 years, resident of Padamnabhpur, burg, District Durg (CG) PETITION UN&ER SECTION 482 OF THE CObE OF CRIMINAL PROCE&URE. 1973 HIGH COURT OF GHHATTISGARH At BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Cr.M.P.No. 242 of2010 PETITIONER/ACCUSED VERSUS RESPONDENT Gyan Chand Jain Anand Bafane Post for pronouncement ofthe order on Q.8.2010 Sd/- Pritinker Diwaker Judge ? ; N t s . & s?511S ? 81 B? B: HIGHCOURT OF CHHATTISGARH AT BILASPUR (Hon.Mr. Justice Pritinker Diwaker) Cr.M.P.No.242of2010 PETITIONER/ACCUSED Gyan Chand Jain VERSUS RESPONDENT AnandBafane Shri RajivShrivastava counsel for the petitioner. Shri Vivek Chopra counsel for the respondent. PETITION UNDER SECTION 482 OF THE CODE OF CRIWIINAJ- PROCEDURE. ORDER (27-08.2010) This petition is directed against the order dated 10.2.2010 passecl 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. 2. Facts of the case in brief are that on 29.9.2006 thq respondenVcomplainant herein filed a complaint case under section 138 of the Negotiable Instrument Act against the petitioneralleging inter alia that a cheque for Rs.2,00,000 was issued by the petitioner on 15.2.200^ 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 Instrument Act for condonation of delay of 18 days in making thri 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 notfile the complaint within limitation. This application was supported by the affidavit of the complainant and also the medica ceri:ificate. Acting upon the said complaint, on 28.7.2007 after hearing the complainanVrespondent, the Court below condoned the delay in filing the complaint, took cognizance in the matter and directed for registration ol the case and issuance of notice against the petitioner. After receiving notice, on 14.9.2009 the petitioner filed an apptication before the Court below for dismissal of the complaint on the ground that delay infiling th4 same was condoned without giving him an opportunity and a mistake ha^ 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 isno provisioq' under Section 142-B of the Negotiable Instrument Act for giving ai opportunity of hearing to the accused and therefore when sufficient reason has been assigned for filing the complaint with delay, Court below wasjustified in condoning the delay and taking cognizance ofthe matter. 1 3. After hearing the parties, the Court below has rejected the application filed by the accused/petitioner holding that after considering all aspects ofthe matterthe Court had directed for registration ofthe case and the Court cannot review its own order. 4. 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 Instrument Act, proposed accused should be given an opportunity of hearing or not? Admittedly, the delay of 18 days has beerj condoned by the Court below without issuing ahy 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 petitione.r and therefore'the Court wa^ .^--''. ' 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. 1 5. On the other hand counsel for the respondent/complainant submits that as per the provjsions of Section 142-B of the Negotiable Instrument Act, it is the matter between the complainant and the Court and if the complainantsatisfies the Court that he had sufficient cause for not filing the complaint within the prescribed period, the Court is not required tq -!3- BS ;issye any; notice to ^Ke propQs^d accysed a^ scofldonefhe delay and entertain the petition. •'•''•^•-: '^ , @. ] , While dealing with almost the similar issue in the matter &fGautai'i!J;; Kumar De and another v. IWs Prime Movers Auto Associates (P) |t.st|l]j andanother reported in 2009 (3) Crimes 524 (Cal.) it has beeh he fe^ the Calcutta High Court as under: 7. This decision has surveyed a dec/sion of the Privy Council in Krishnasamy v. Ramasamy and the decision in Krishna v. State of Madhya Pradesh. In Bharat Hybrid Seeds &Agro Enterphse v. The State in has been: "When the Court extends the time, itmeans ifit interfehng with the rights ofthe accused which have vested in him byvirtue of the expiry of period of limitation. Therefore, even though there is no rule oflaw requiring the Court to issue notice to the proposed accused and to give him an opportunity formeeting the case ofthe complainanf in regard tothe extens/on aftime interest ofjustice 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, it a party prosecuted in a Court, oflawafter the period prescribed for launching of the prosecution has been over and without giving him an opportunity to explain his case as fo 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 decis/ons of Allahabad High Court in Prakastr Chandra Sharma v. Kaushal K/shore of the Rajasthan High Court in Panney Singh & Ors. V. State of Rajasthan and Delhi High Court in Jaganmohan v. State 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 nof justified in condoning the delay without giving the presffht petitionersanopportunityofbeingheard." | Further, in the matter of Shri Krishna Sanghi and other v. State of h/ladhya Pradesh reported in 1996 M.P.L.J, 559it has been held b^ Madhya Pradesh High Court as under: "7. Learned Counsel appean'ng for both the parfies requested me to lay down the procedure to be followed by the tn'al Courts in such cases since this is a new provision incorporated in the Code of Criminal Procedure, 1973. l4//?enei/er a complaint or a chalan is filed at the instance of any person or any police officer, the Court must first see that ;a;i.»:s•I IBIi ^^^s '3^^ BOK .-u',l: :;:.;. ,:,;.,. ^,sec n^68offfieCoete0/'^9^(saf^c^Gf n@^:Y^ (^ it should not register the case but give an opportunify to the person or the police officer filing the cofnp/afnfbrcfea/an^fo.' satisfy it on the point oflimitation forpurposesofcpncloriationv of delay. As regards the condonation of delay if shauld hot/ ibe dpne as a matter of course. The delay has to be condoned with exercise ofjudicial discretion. Sectioh 473^0f the Code empowers the Court to condone such delay if sufficient cause has been shown or if the interests ofjustice make it necessary todo so. But the application ofthe section would always depend upon fhe facts and circumsfances of each case of which the Court would be required to exercise its judicial discretion in the matter, like an applicatian under. section 5 of the Limitation Act, 1963. At this stage l would a/so like to point out that the provisions of section 473 ofthe Cocfe 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 constred too liberally because the Government is the prosecutor or prosecutian is upon po/rce 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 1 don not find any provision of giving of notice to^the accused person inChapter XXXVI ofthe Code, buf natural justice demands that the accused persons must be heard before passing an order in that regard as such an order is bund 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 section473 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 reporfed in AIR 2000 Supreme Court297 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 it respect of the offences for which a period of limitation has been provided in S. 468, the powerhas 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 wou/d be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognized principles. This being a discretion conferred on s' w:, s» KS: ^^^:! ISilBBKSIS 'aW -/::^-' l@l,; ^the' Ccwn taking cognizance, wherever th^Qourt,:@){ercis^iiS& |l}^i^^:.:'ffi/s, tf/screffon, the seime must be by a ,spea?wig,.orefe^|>||E ffahdicafing the satisfaction ; 6f the Covrt af e Q'g/a^ •)a'as||i||j| ^satisfactorily explained and condonation of We sams was, .H?13iB the interest of justice. In the absence of a positive order fcy^'v^ that effect it may not be permissible for a superioreQurt ta^^ come to the conclusion that the Court musf be deemed ta' K have taken cognizance by condoning the delay wheneverthe ^ cognizance was barred and yet the Court took cognizance : and proceeded with the trialof the offence. But the provisions are ofno application to the case in hand since for the offences | charged, no period of limitation has been' provided inview of: the imposable punishment thereunder. In this view pf the.. matter we have to hesitation to come ta 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 cou/d i| not have taken cognizance for the said offence. Needless to >| mention, it is well settled by a catena of decisions ofthis Court.^ ^l] that if an accused is charged of a major offence but /s nof "'"| found guilty thereunder, he can be convicted of a mjnor offence if the facts established indicate that such minor offence has been committed." ] f . . '•. i 7, It is thus a settled legal position that extension of time amounts tcj 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 th^ proposed accused and give him an opportunityof hearing in regard tcj extension oftime, principle ofnaturaljusticerequires that condonatioriiio^ delay and extension of time can be done only after giving the proposec| 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 groposed accused. Even if there is no rule of law in existence enabling the Court tc( extend the time or condone the delay already occasioned, opportunity of hearing to the proposed accused is a must. Moreover, from the ordeE impugned it appears that wNle passing the same, the Court below haq not considered all the material facts of the case and has allowed th^ applicationof the non-applicant for condonation of delay in asuperficjal manner. It is expected from the Court below to consider all the relevaht facts of the case while entertaining ar»ysuch application. r il^^tt n '-w'[ *t'.l'i!ll Bl- :K'^1-^ IB^'' Iffli! w -6 8. Thus, the pefition is allowed and the impugned order datec) 10.02.2010 is set aside. Learned Magistrate is directed to hear fh^ complainant and the proposed accused regarding the prayer foif condonation of delay in terms of the proviso to Clause-B to Section 142 of the Negotiable Instrument Act and pass the order afresh in accordanc^ 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. | g^ Pritinker Diwaker Judge liBffi »?: ffilfe @iA:': aB6sK