Punjab-Haryana High Court
Brij Mohan Batra vs Ludhiana Beverages Pvt. Ltd on 23 August, 2013
Author: Sabina
Bench: Sabina
CRM No.M-12021 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(243)
CRM No.M-12021 of 2013 (O&M)
Date of decision: 23.08.2013.
Brij Mohan Batra
......Petitioner
Versus
Ludhiana Beverages Pvt. Ltd.
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. P.S. Ahluwalia, Advocate for the petitioner.
Mr. A.P. Kaushal, Advocate for the respondent.
****
SABINA, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 04.12.2012, whereby, delay in filing the complaint by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short 'Act') was condoned without giving an opportunity of hearing to the petitioner. Consequently, order whereby petitioner was summoned in the complaint vide order dated 25.01.2013 has also been challenged.
Learned counsel for the petitioner has submitted that the impugned order (Annexure P-4) whereby, delay in filing the complaint in question was condoned was passed without affording an opportunity of hearing to the petitioner. Hence, the said order was liable to be set aside.
Sandeep Sethi 2013.08.30 10:38 I attest to the accuracy and integrity of this document CRM No.M-12021 of 2013 (O&M) -2-
In support of his arguments, learned counsel has placed reliance on Riga Sugr Co. Ltd. Vs. Kessels Engg. Works Pvt. Ltd. 2008(4) AD (Delhi) 519 wherein it was held as under:-
"Learned senior counsel for the petitioner contends that the application filed by the petitioner for condonation of delay could not have been allowed without notice to the petitioner and in that behalf has referred to the judgment of the learned single Judge of this Court in Prashant Goel V. State and Another, 134 (2006) DLT 221 wherein it has been held that the principles of audi alteram partem applied to even administrative proceedings, leave aside judicial proceedings. The rules of natural justice was held to be important parameters of fairness of procedure and, thus, when a complaint was time-barred, the other side got valuable rights inasmuch as time-barred complaint could not be considered on merits unless that delay is condoned. Thus, the accused had a right to argue that in given circumstances delay be not condoned. The accused thus, could not be deprived of such a valuable right and it was held that this principle would be applicable whether the case originates on the lodging of the FIR as a State case or it is on the basis of the complaint filed by the complainant. These observations were also made in view of the pronouncement of the Sandeep Sethi 2013.08.30 10:38 I attest to the accuracy and integrity of this document CRM No.M-12021 of 2013 (O&M) -3- Apex Court in State of Maharashtra V. Sharadchandra Vinayak Dongre,(1995) 1 SCC 42.
A reading of the aforesaid judgment makes the issue no more res integra and , thus, the order of the trial court condoning the delay in issuing summoning and passing the summoning order cannot be sustained. The petitioner ought to have been granted an opportunity first while issuing the notice on the application for condonation of delay before proceeding to the next stage, which did not happen."
Learned counsel has further placed reliance on D. Shyam Sunder Vs. Nella Prabhu Lingamurthy and another 2011 (7) R.C.R. (Criminal) 480 wherein it was held as under:-
"Having regard to the fact that vested right of the accused of not being prosecuted after expiry of period of limitation is being deprived by passing the impugned order under Section 142 of the Negotiable Instruments Act, this Court is of the view that notice to the accused/respondent is mandatory as per principles of natural justice before passing any order by the criminal Court condoning the delay in filing the private complaint. In that view of the matter, order passed by the lower Court on 10.11.2005 is liable to be set aside with a direction to the lower Court to consider the petition Crl.M.P. No. 3639/2005 afresh after giving notice to the Sandeep Sethi 2013.08.30 10:38 I attest to the accuracy and integrity of this document CRM No.M-12021 of 2013 (O&M) -4- petitioner/accused and after receiving his objections if any for that petition."
Learned counsel has further placed reliance on Sajjan Kumar Jhunjhunwala and others Vs. M/s Eastern Roadways Pvt. Ltd. wherein it was held as under:-
"Lord denning has said:
If the right to be heard is to be a real right which is width anything, it must carry with it a right in the accused man to know the Case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given an opportunity to correct or contradict them.
Another classic example is the statement of Willes, J in a case which in essentials was the same as Cooper V. Wands Worth Board of Works:
In condemning a man to have his house pulled down, a judicial act is as much implied as in fining him 5 and as the local board is the only Tribunal that can made such an order, its act must be a judicial act, and the party to be affected should have a notice given to him In the present case, there is nothing in the Act of Parliament to limit the natural inference as to the nature of the Act.
Taking into consideration the fact that the Sandeep Sethi 2013.08.30 10:38 I attest to the accuracy and integrity of this document CRM No.M-12021 of 2013 (O&M) -5- delay of 3 days was condoned without notice to the petitioners, I am of the view that the proceedings commencing from taking cognizance and issuing process to the petitioners requires to be set aside as it is opposed to principles of natural justice."
Learned counsel has further placed reliance on Sanjay Raghuram and another Vs. Telengana Investments and Finances Limited 2006(2) DCR 74 : 2006 wherein it was held as under:-
"It is true that the Court has been given discretion to condone the delay in preferring the complaint beyond the period prescribed under Section 142(b) of the Negotiable Instruments Act, but that discretion will have to be exercised judiciously. The judicial discretion cannot be exercised arbitrarily and capriciously. The principles of natural justice also will have to be followed in exercising the discretion by the Court.
A mere petition explaining the delay will not be sufficient. The petition should be accompanied by an affidavit sworn to by the complainant or the power of attorney holder explaining the reason for the delay. Only then can the accused effectively contest the reason adumbrated in the affidavit filed by the complainant or his authorised power of attorney holder.
Sandeep Sethi 2013.08.30 10:38 I attest to the accuracy and integrity of this document CRM No.M-12021 of 2013 (O&M) -6-
Though the accused is out of picture till the complaint is taken cognizance of by the Court, an indefeasible right of the accused is found incorporated under Section 142(b) of the Negotiable Instruments Act. The Court, exercising its discretion under the proviso to the aforesaid provision of law, is empowered to make a dent in such a right of the accused by extending the period of limitation, on satisfying itself of the reasons assigned by the complainant.
The complainant cannot file an applicant seeming condonation of delay of thousand days and submit that the accused has no say in the matter, as he has not been summoned on taking cognizance of the case.
The order passed by the Court condoning the delay will definitely affect the interest of the accused. No order can be passed unless the party who is going to be affected by such an order is afforded sufficient to air his views on the reasons assigned by the complainant."
Learned counsel for the respondent, on the other hand has opposed the petition and has submitted that the Court has the power to condone the delay in filing the complaint by virtue of proviso to Section 142 (b) of the Act. It was not necessary to issue notice to the accused before deciding the application for condonation of delay in filing the complaint.
Sandeep Sethi 2013.08.30 10:38 I attest to the accuracy and integrity of this document CRM No.M-12021 of 2013 (O&M) -7-
In the present case, respondent has filed the complaint under Section 138 of the Act with regard to dishonour of cheques dated 28.09.2012. Along with the complaint, an application was filed for condonation of delay in filing the complaint. Vide impugned order dated 04.12.2012 (Annexure P-4), delay in filing the complaint was condoned without affording an opportunity of hearing to the respondent. The said order had thus, been passed in violation of principles of natural justice. Since the complaint in question had not been filed within the period of limitation, a valuable right had accrued in favour of the petitioner. Hence, before condoning the delay in filing the complaint, it was necessary for the Trial Court to have issued notice to the petitioner and thereafter, proceeded to decide the application.
Accordingly, this petition is allowed. Impugned order dated 04.12.2012 (Anexure P-4) is set aside. Learned Magistrate is directed to pass a fresh order in accordance with law after affording an opportunity to the petitioner/accused to present his case. Consequently, the order dated 25.012013 (Annexure P-5) is also set aside. Parties are directed to appear before the Trial Court on the date already fixed. i.e. 26.08.2013.
(SABINA) JUDGE August 23, 2013.
sandeep sethi Sandeep Sethi 2013.08.30 10:38 I attest to the accuracy and integrity of this document