Negotiable Instruments Act, 1881 — Section 138 — Delay in filing complaint under — Condonation of, procedure for — Whether delay can be condoned without notice to other party — Held, no — Irrespective of provisions of CrPC or any procedural law by which particular proceedings are governed, it is fundamental principle that no orders can be passed against party which effects his rights prejudicially without notice to that party and giving him a hearing — When complaint time barred, other side gets valuable right as such complaint cannot be considered on merits unless delay condoned — Accused shall have right to argue that in given circumstances, delay be not condoned — Depriving accused with such valuable right and condoning delay, would clearly be in violation of Principles of Natural Justice — Impugned summoning order set aside — Trial court to decide issue of limitation first after giving opportunity of hearing to petitioner 1
I have considered the submissions of both Counsel. Irrespective of the provisions of Code of Criminal Procedure or any procedural law by which a particular proceedings are governed, it is fundamental principle that no orders can be passed against a party which affects his rights prejudicially, without notice to that party and giving him a hearing. This principle of Audi Alteram Partem which is one of the Principles of Natural Justice is applicable in all proceedings including those where administrative action is taken against a person. Such a principle is applicable with much more force when the proceedings are judicial in nature, as in the instant case. Fair hearing is the most fundamental principle of administration of justice. Although the law of evidence and the procedural laws ensure it and statutes also provide for it, the principles of natural justice, which include the essentials of a fair hearing are invoked wherever there are gaps in the statutory law. Therefore, it would be no answer to say that Criminal Procedure Code is silent on this aspect. The Supreme Court has read these principles of natural justice into the provisions of the Criminal Procedure Code in the case of Saheb Singh v. Haryana. It was held that although a High Court was competent to enhance the sentence of the accused while exercising the power of suo motu revisional jurisdiction under Sections 397 and 401 of Cr.P.C. even without an appeal having been preferred by the state, it could do so only after giving a notice and an opportunity of being heard to the accused. Then we have much celebrated judgment of Supreme Court in the case of A.R. Antulay v. R.S. Nayak which is an authority for the proposition that ever1 a decision of the Supreme Court could be impugned on the ground that decision has been taken by the Court with out affording to the accused an opportunity of being heard. The rules of natural justice are, therefore, important parameters of the fairness of the procedure. Obviously when the complaint is time barred, other side gets a valuable right inasmuch as time barred complaint cannot be considered on merits unless the delay is condoned. Therefore, accused shall have right to argue that in given circumstances delay be not condoned. Depriving the accused with such a valuable right and condoning the delay, would clearly be in violation of Principle of Natural Justice. It, therefore, would not make an difference whether the case originates on the lodging of the FIR as a State case and it is on the basis of complaint filed by the complainant. The principles on which judgment is given by the Supreme Court in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre (supra) will thus clearly be applicable.1
2. Apart from other contentions, one of the pleas raised is that delay could not have been condoned without notice to the petitioner herein. In support of this plea, the petitioner has relied upon judgment of the Supreme Court in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre. Learned Counsel for the respondent on the other hand argues that the aforesaid judgment was rendered by the Supreme Court in the case where FIR was lodged with the Police and it was a State case. Whereas in the present case, complaint was filed by the complainant. His submission is that in a complaint case unless the Court takes cognizance, summons cannot be issued to the other side and the Court could not have taken cognizance without condoning the delay first. Therefore, his submission is that the delay could have condoned without notice to the petitioner herein (accused in the said case). He has also relied upon Full Bench judgment of the Patna High Court in the case of Ram Kripal Prasad and Ors. v. The State of Bihar and Ors. to contend that the petitioner is not remediless even now inasmuch as he can raise the issue of condensation of delay after he is served with the summons on the basis of this very judgment. He further submits that question of limitation cannot be raised in proceedings under Section 482 of the Code of Criminal Procedure.
3. I have considered the submissions of both Counsel. Irrespective of the provisions of Code of Criminal Procedure or any procedural law by which a particular proceedings are governed, it is fundamental principle that no orders can be passed against a party which affects his rights prejudicially, without notice to that party and giving him a hearing. This principle of Audi Alteram Partem which is one of the Principles of Natural Justice is applicable in all proceedings including those where administrative action is taken against a person. Such a principle is applicable with much more force when the proceedings are judicial in nature, as in the instant case. Fair hearing is the most fundamental principle of administration of justice. Although the law of evidence and the procedural laws ensure it and statutes also provide for it, the principles of natural justice, which include the essentials of a fair hearing are invoked wherever there are gaps in the statutory law. Therefore, it would be no answer to say that Criminal Procedure Code is silent on this aspect. The Supreme Court has read these principles of natural justice into the provisions of the Criminal Procedure Code in the case of Saheb Singh v. Haryana. It was held that although a High Court was competent to enhance the sentence of the accused while exercising the power of suo motu revisional jurisdiction under Sections 397 and 401 of Cr.P.C. even without an appeal having been preferred by the state, it could do so only after giving a notice and an opportunity of being heard to the accused. Then we have much celebrated judgment of Supreme Court in the case of A.R. Antulay v. R.S. Nayak which is an authority for the proposition that ever1 a decision of the Supreme Court could be impugned on the ground that decision has been taken by the Court with out affording to the accused an opportunity of being heard. The rules of natural justice are, therefore, important parameters of the fairness of the procedure. Obviously when the complaint is time barred, other side gets a valuable right inasmuch as time barred complaint cannot be considered on merits unless the delay is condoned. Therefore, accused shall have right to argue that in given circumstances delay be not condoned. Depriving the accused with such a valuable right and condoning the delay, would clearly be in violation of Principle of Natural Justice. It, therefore, would not make an difference whether the case originates on the lodging of the FIR as a State case and it is on the basis of complaint filed by the complainant. The principles on which judgment is given by the Supreme Court in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre (supra) will thus clearly be applicable.
4. It may be noted that when Section 138 was added, there was no provision for condensation of delay in filing the complaint under the said provisions. This power to the MM to condone the delay has been conferred by amendment made vide Negotial's Instruments (Amendment and Miscellaneous Provisions) Act, 2002. Thus the Magistrate is now entrusted with the power to condone the delay. Therefore, when the complaint is filed, which is time-barred and along with the complaint an application for condensation of delay is preferred, appropriate procedure would be to first issue notice only in the application to the other side without taking cognizance of the complaint. On notice being issued art J after hearing the parties, if the Court comes to the conclusion that there is no ground to condone the delay is to be dismissed which will entail in demising of complaint as well as barred by limitation. On the other hand if the Court is of the opinion that there are sufficient grounds to condone the delay and delay is condoned then the MM can condone the delay which will have the effect of the complaint as initially filed and the learned MM can the deal with the complaint in accordance with procedure contained in Section 200, Cr.P.C. In any case on an application for condensation of delay, it is necessary to issue notice to other side before condoning the delay.
5. The judgment of Ram Kripal Prasad and Ors. v. The State of Bihar and Ors. (supra) as cited by learned Counsel for respondent would be of no avail to him. That was a case in Employees Provident Funds and Miscellaneous Provisions Act. In the first instance the Court held that failure on the part of the employer to deposit contribution under the said Act in contravention of Paras 38 and 76 of the Employees Provident Fund Scheme was a continuing offence. In any case the Court opined that the issue of limitation could still be raised by the petitioner (accused in the said case). These observations were given as the Trial Court had not decided as to whether the complaint was time-barred or not and only sum none were issued. At that stage the petitioner had approached the High Court for quashing of the summons on the ground that complaint was time-barred. In these circumstances, the Court held that it was such a issue to be raised before the Trial Court in the first instance and could not be raised in proceedings under Section 482 of the Code of Criminal Procedure and it was still open to the petitioner to raise this issue. In the present case, on the other hand, there is no dispute that the complaint was time barred. That is the reason that application for condensation of delay was filed. However, as mentioned above, Trial Court has condoned the delay without hearing the petitioner. After the order is passed condoning the delay, the petitioner cannot now raise the issue of limitation as this issue already stands decided, albeit in the absence of petitioner which is not permissible.
6. Learned Counsel for the petitioner has also argued that complaint itself is not maintainable as the petitioner was a partner in the partnership firm and partnership firm would file such a case against the partner. It would be for the learned MM to bestow his consideration on this aspect before issuing the process.
7. The impugned summoning order is set aside. The learned Trial Court is directed to first decide the issue of limitation after giving an opportunity of hearing to the petitioner (accused in the said case). With these observations, this petition stands disposed of.
Petition disposed of.
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I have considered the submissions of both Counsel. Irrespective of the provisions of Code of Criminal Procedure or any procedural law by which a particular proceedings are governed, it is fundamental principle that no orders can be passed against a party which affects his rights prejudicially, without notice to that party and giving him a hearing. This principle of Audi Alteram Partem which is one of the Principles of Natural Justice is applicable in all proceedings including those where administrative action is taken against a person. Such a principle is applicable with much more force when the proceedings are judicial in nature, as in the instant case. Fair hearing is the most fundamental principle of administration of justice. Although the law of evidence and the procedural laws ensure it and statutes also provide for it, the principles of natural justice, which include the essentials of a fair hearing are invoked wherever there are gaps in the statutory law. Therefore, it would be no answer to say that Criminal Procedure Code is silent on this aspect. The Supreme Court has read these principles of natural justice into the provisions of the Criminal Procedure Code in the case of Saheb Singh v. Haryana. It was held that although a High Court was competent to enhance the sentence of the accused while exercising the power of suo motu revisional jurisdiction under Sections 397 and 401 of Cr.P.C. even without an appeal having been preferred by the state, it could do so only after giving a notice and an opportunity of being heard to the accused. Then we have much celebrated judgment of Supreme Court in the case of A.R. Antulay v. R.S. Nayak which is an authority for the proposition that ever1 a decision of the Supreme Court could be impugned on the ground that decision has been taken by the Court with out affording to the accused an opportunity of being heard. The rules of natural justice are, therefore, important parameters of the fairness of the procedure. Obviously when the complaint is time barred, other side gets a valuable right inasmuch as time barred complaint cannot be considered on merits unless the delay is condoned. Therefore, accused shall have right to argue that in given circumstances delay be not condoned. Depriving the accused with such a valuable right and condoning the delay, would clearly be in violation of Principle of Natural Justice. It, therefore, would not make an difference whether the case originates on the lodging of the FIR as a State case and it is on the basis of complaint filed by the complainant. The principles on which judgment is given by the Supreme Court in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre (supra) will thus clearly be applicable.1
Delhi High Court
Prashant Goel vs State And Anr. on 2 August, 2006
Equivalent citations: 2008 (1) KLJ 904
1. The respondent No. 2 herein had filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner on the basis of dishonour of the cheque issued by him. As on the date of filing of the said complaint it was admittedly time-barred. Because of this reason, complainant had also prayed for condensation of delay. Vide order dated 8-10-2004 the learned MM condoned the delay and issued summons to the petitioner. This order is challenged in the present proceedings.2. Apart from other contentions, one of the pleas raised is that delay could not have been condoned without notice to the petitioner herein. In support of this plea, the petitioner has relied upon judgment of the Supreme Court in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre. Learned Counsel for the respondent on the other hand argues that the aforesaid judgment was rendered by the Supreme Court in the case where FIR was lodged with the Police and it was a State case. Whereas in the present case, complaint was filed by the complainant. His submission is that in a complaint case unless the Court takes cognizance, summons cannot be issued to the other side and the Court could not have taken cognizance without condoning the delay first. Therefore, his submission is that the delay could have condoned without notice to the petitioner herein (accused in the said case). He has also relied upon Full Bench judgment of the Patna High Court in the case of Ram Kripal Prasad and Ors. v. The State of Bihar and Ors. to contend that the petitioner is not remediless even now inasmuch as he can raise the issue of condensation of delay after he is served with the summons on the basis of this very judgment. He further submits that question of limitation cannot be raised in proceedings under Section 482 of the Code of Criminal Procedure.
3. I have considered the submissions of both Counsel. Irrespective of the provisions of Code of Criminal Procedure or any procedural law by which a particular proceedings are governed, it is fundamental principle that no orders can be passed against a party which affects his rights prejudicially, without notice to that party and giving him a hearing. This principle of Audi Alteram Partem which is one of the Principles of Natural Justice is applicable in all proceedings including those where administrative action is taken against a person. Such a principle is applicable with much more force when the proceedings are judicial in nature, as in the instant case. Fair hearing is the most fundamental principle of administration of justice. Although the law of evidence and the procedural laws ensure it and statutes also provide for it, the principles of natural justice, which include the essentials of a fair hearing are invoked wherever there are gaps in the statutory law. Therefore, it would be no answer to say that Criminal Procedure Code is silent on this aspect. The Supreme Court has read these principles of natural justice into the provisions of the Criminal Procedure Code in the case of Saheb Singh v. Haryana. It was held that although a High Court was competent to enhance the sentence of the accused while exercising the power of suo motu revisional jurisdiction under Sections 397 and 401 of Cr.P.C. even without an appeal having been preferred by the state, it could do so only after giving a notice and an opportunity of being heard to the accused. Then we have much celebrated judgment of Supreme Court in the case of A.R. Antulay v. R.S. Nayak which is an authority for the proposition that ever1 a decision of the Supreme Court could be impugned on the ground that decision has been taken by the Court with out affording to the accused an opportunity of being heard. The rules of natural justice are, therefore, important parameters of the fairness of the procedure. Obviously when the complaint is time barred, other side gets a valuable right inasmuch as time barred complaint cannot be considered on merits unless the delay is condoned. Therefore, accused shall have right to argue that in given circumstances delay be not condoned. Depriving the accused with such a valuable right and condoning the delay, would clearly be in violation of Principle of Natural Justice. It, therefore, would not make an difference whether the case originates on the lodging of the FIR as a State case and it is on the basis of complaint filed by the complainant. The principles on which judgment is given by the Supreme Court in the case of State of Maharashtra v. Sharadchandra Vinayak Dongre (supra) will thus clearly be applicable.
4. It may be noted that when Section 138 was added, there was no provision for condensation of delay in filing the complaint under the said provisions. This power to the MM to condone the delay has been conferred by amendment made vide Negotial's Instruments (Amendment and Miscellaneous Provisions) Act, 2002. Thus the Magistrate is now entrusted with the power to condone the delay. Therefore, when the complaint is filed, which is time-barred and along with the complaint an application for condensation of delay is preferred, appropriate procedure would be to first issue notice only in the application to the other side without taking cognizance of the complaint. On notice being issued art J after hearing the parties, if the Court comes to the conclusion that there is no ground to condone the delay is to be dismissed which will entail in demising of complaint as well as barred by limitation. On the other hand if the Court is of the opinion that there are sufficient grounds to condone the delay and delay is condoned then the MM can condone the delay which will have the effect of the complaint as initially filed and the learned MM can the deal with the complaint in accordance with procedure contained in Section 200, Cr.P.C. In any case on an application for condensation of delay, it is necessary to issue notice to other side before condoning the delay.
5. The judgment of Ram Kripal Prasad and Ors. v. The State of Bihar and Ors. (supra) as cited by learned Counsel for respondent would be of no avail to him. That was a case in Employees Provident Funds and Miscellaneous Provisions Act. In the first instance the Court held that failure on the part of the employer to deposit contribution under the said Act in contravention of Paras 38 and 76 of the Employees Provident Fund Scheme was a continuing offence. In any case the Court opined that the issue of limitation could still be raised by the petitioner (accused in the said case). These observations were given as the Trial Court had not decided as to whether the complaint was time-barred or not and only sum none were issued. At that stage the petitioner had approached the High Court for quashing of the summons on the ground that complaint was time-barred. In these circumstances, the Court held that it was such a issue to be raised before the Trial Court in the first instance and could not be raised in proceedings under Section 482 of the Code of Criminal Procedure and it was still open to the petitioner to raise this issue. In the present case, on the other hand, there is no dispute that the complaint was time barred. That is the reason that application for condensation of delay was filed. However, as mentioned above, Trial Court has condoned the delay without hearing the petitioner. After the order is passed condoning the delay, the petitioner cannot now raise the issue of limitation as this issue already stands decided, albeit in the absence of petitioner which is not permissible.
6. Learned Counsel for the petitioner has also argued that complaint itself is not maintainable as the petitioner was a partner in the partnership firm and partnership firm would file such a case against the partner. It would be for the learned MM to bestow his consideration on this aspect before issuing the process.
7. The impugned summoning order is set aside. The learned Trial Court is directed to first decide the issue of limitation after giving an opportunity of hearing to the petitioner (accused in the said case). With these observations, this petition stands disposed of.
Petition disposed of.
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