Himachal Pradesh High Court
Dr. Ranjit Mal Kastia And Anr. vs Registrar Of Companies on 6 March, 2002
Equivalent citations: 2002CRILJ3394
Author: M.R. Verma
Bench: M.R. Verma
ORDER M.R. Verma, J.
1. This petition is directed against the order dated 18-9-2001 passed by the learned Chief Judicial Magistrate, Solan whereby the delay in filing a complaint under Section 207 of the Companies Act, 1956 by the respondent/complainant (hereafter referred to as the 'respondent') against the petitioners/accused (hereinafter referred to as the 'petitioners') has been condoned and the petitioners have been ordered to be summoned on the basis of the complaint.
2. The brief and undisputed facts leading to the presentation of this petition are that the respondent instituted a complaint against the petitioners under Section 207 of the Companies Act, 1956 in the Court of the learned Chief Judicial Magistrate. Solan and an application for condonation of delay of two years four months in filing the said complaint was also filed. The learned Chief Judicial Magistrate by the impugned order condoned the delay in filing the complaint but without notice to the petitioners.
3. I have heard the learned' counsel for the parties and have also gone through the material placed on record.
4. On the basis of the arguments addressed by the learned counsel for the parties, the only question which arises for determination in this petition at this stage is whether the delay in filing the complaint could be condoned by the learned Chief Judicial Magistrate without notice to the petitioners?
5. In view of the provisions of Section 468 of the Code of Criminal Procedure (hereafter referred to as the 'Code'), Court is debarred from taking cognizance of an offence after expiry of the period of limitation as provided therein. However, the Court has power to condone the delay under Section 473 of the Code and to take cognizance of an offence after the expiry of period of limitation if it is specified, on the facts and in the circumstances of the case, that the delay has been properly explained or that it is necessary so to do in the interest of justice. However, it cannot be disputed that the bar to take cognizance of an offence after expiry of the period of limitation prescribed under Section 468 of the Code creates a valuable right in favour of the accused, therefore, the accused is entitled to a notice of the application for extension of time for filing a complaint/submitting a charge-sheet against him after the prescribed period of limitation. Extension of the period of limitation without affording an opportunity of being heard to the accused is bound to affect the valuable right of the accused which accrues to him by virtue of the provisions of Section 468 of the Code. Therefore, an order extending the time for filing a complaint or submitting a charge-sheet beyond the period of limitation without notice to the accused is illegal and unsustainable.
6. In the case in hand, there is no dispute that the learned Chief Judicial Magistrate had condoned the delay of 2 years 4 months in filing the complaint against the petitioners without giving them a notice of the application for condonation of delay and thus without affording them an opportunity of being heard, therefore, the impugned order is not only illegal but has resulted in gross injustice to the petitioners. Therefore, the impugned order cannot be sustained.
7. As a result, this petition is allowed and the impugned order is set aside and the proceedings taken in consequence of the impugned order by the learned trial Magistrate, are quashed. The case is remanded to the trial Court with the direction to afford an opportunity to the petitioners to make their submissions in opposition of the application of the respondent for condonation of delay/extension of time in filing the complaint and then proceed with the case in accordance with law.
8. The parties, through their learned counsel, are directed to appear before the trial Court on 8-4-2002.