PRASANT GOEL Vs. STATE OF DELHI

JUDGEMENT

(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 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. 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 Others v. The State of Bihar and Others 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 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 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.