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Prashant Goel v. State And Another
Factual and Procedural Background
The respondent No. 2 filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner due to dishonour of a cheque. At the time of filing, the complaint was admittedly time-barred, prompting the complainant to seek condonation of delay. The learned Magistrate (MM) granted condonation of delay and issued summons to the petitioner. The petitioner challenged this order.
Legal Issues Presented
- Whether the delay in filing a time-barred complaint under Section 138 of the Negotiable Instruments Act can be condoned without issuing notice to the accused petitioner?
- Whether the principles of natural justice, specifically the audi alteram partem rule, apply to the condonation of delay in such complaint proceedings?
- Whether the petitioner can raise the issue of limitation after the delay has been condoned and summons issued?
- Whether a complaint filed by a third party rather than the partnership firm itself is maintainable when the accused is a partner in the firm?
Arguments of the Parties
Petitioner's Arguments
- The delay in filing the complaint could not have been condoned without notice to the petitioner.
- Relied on the Supreme Court judgment in State of Maharashtra v. Sharadchandra Vinayak Dongre (1995) 1 SCC 42, which requires notice before condonation of delay.
- Argued that the complaint is not maintainable because the petitioner was a partner and the partnership firm itself should have filed the complaint.
Respondent's Arguments
- The Supreme Court judgment relied upon pertains to FIR-based State cases, whereas this is a complaint case.
- In complaint cases, summons cannot be issued without first condoning the delay and taking cognizance; thus, delay can be condoned without notice to the accused.
- Relied on the Patna High Court Full Bench judgment in Ram Kripal Prasad v. The State of Bihar, 1985 Cr. LJ 1048, to contend the petitioner can still raise limitation issues after summons are served.
- Submitted that limitation cannot be raised under Section 482 Cr.P.C. proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Maharashtra v. Sharadchandra Vinayak Dongre, (1995) 1 SCC 42 | Notice must be given before condoning delay affecting accused's rights in State FIR cases. | Court held the principle applies equally to complaint cases under Section 138; delay cannot be condoned without notice. |
| Ram Kripal Prasad v. The State of Bihar, 1985 Cr. LJ 1048 | Limitation issue can be raised before trial court even after summons issued; limitation not to be raised in Section 482 Cr.P.C. proceedings. | Court distinguished present case and held petitioner cannot raise limitation after delay condoned without hearing. |
| Saheb Singh v. Haryana, (1990) 2 SCC 385 | Principle of natural justice requires notice and hearing before enhancing sentence in suo moto revision. | Applied principle of audi alteram partem to require hearing before condoning delay affecting accused's rights. |
| A.R Antulay v. R.S Nayak, (1988) 2 SCC 602 | Even Supreme Court decisions can be challenged if taken without affording opportunity of hearing. | Emphasized importance of natural justice principles in judicial proceedings. |
Court's Reasoning and Analysis
The Court emphasized the fundamental principle of natural justice, specifically the audi alteram partem rule, which mandates that no order adversely affecting a party’s rights can be passed without notice and hearing. The Court rejected the argument that procedural silence in the Criminal Procedure Code exempts the Magistrate from this duty. It relied on Supreme Court precedents to affirm that natural justice principles are integral to judicial proceedings, including condonation of delay in complaint cases.
The Court noted that the power to condone delay under Section 138 was conferred by a 2002 amendment, and proper procedure requires issuing notice on the condonation application before taking cognizance of the complaint. The Court found that condoning delay without notice to the petitioner violated natural justice and was impermissible, regardless of whether the case originated from an FIR or a complaint.
The Court also differentiated the Patna High Court precedent cited by the respondent, holding that since the delay was already condoned without hearing, the petitioner cannot now challenge limitation. The Court further observed that issues relating to maintainability of the complaint based on the petitioner’s status as a partner should be considered by the Magistrate before issuing summons.
Holding and Implications
The impugned summoning order is set aside. The learned Trial Court is directed to first decide the issue of limitation after giving the petitioner an opportunity of hearing.
This decision directly affects the parties by mandating adherence to natural justice before condoning delay and issuing summons in time-barred complaints under Section 138. No new precedent beyond the application of established principles of natural justice and procedural fairness is created.
A.K Sikri, J.— 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 condonation 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, (1995) 1 SCC 42. 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 v. The State of Bihar, 1985 Cr. LJ 1048, to contend that the petitioner is not remediless even now inasmuch as he can raise the issue of condonation 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 Alterant 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, (1990) 2 SCC 385. It was held that although a High Court was competent to enhance the sentence of the accused while exercising the power of suo moto revisional jurisdiction under Section 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, (1988) 2 SCC 602 which is an authority for the proposition that even a decision of the Supreme Court could be impugned on the ground that decision has been taken by the Court without 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 any 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 condonation 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 Negotiable Instrument (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 condonation 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 and after hearing the parties, if the Court comes to the conclusion that there is no ground to condone the delay then application for condonation of delay is to be dismissed which will entail in dismissing 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 then deal with the complaint in accordance with procedure contained in Section 200, Cr.P.C In any case on an application for condonation of delay, it is necessary to issue notice to other side before condoning the delay.
5. The judgment of Ram Kripal Prasad v. The State of Bihar (supra) as cited by learned Counsel for the 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 summons 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 condonation 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).
8. With these observations, this petition stands disposed of.
Petition disposed of.
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