LALITHA RAMACHANDRAN Vs. SHAN FINANCIERS

JUDGEMENT

(1.) The petitioner faces indictment in a prosecution under Sec.138 of the N.I. Act. The petitioner has come before this Court with the grievance that cognizance has been taken without legal authority inasmuch as the petition is barred by limitation. Cognizance was taken on the basis of a complaint dated 14/4/04. Notice of demand was served on 9/2/04. The petitioner contended that the payment must have been made within 15 days of receipt of the notice i.e., 9/2/2004. The cause of action arises after 15 days and the complaint must have been within one month. In any view of the matter, the complaint must have been filed by 24/3/04 (i.e., 9/2/04 + 15 days + one month).

(2.) Notice was given to the respondent/complainant. The respondent/complainant has entered appearance through counsel. Report of the learned Magistrate was also called for. The report of the learned Magistrate shows that an order has been passed condoning the delay of 26 days in filing the complaint. A copy of the order has also been furnished. The order dated 12/7/04 in C.M.P.No.1895/04 shows that the delay of 26 days in filing the complaint was condoned by the learned Magistrate without notice to the accused/the petitioner herein. The report of the learned Magistrate also shows that the delay was condoned without and before giving notice to the accused to raise his objections against the prayer for condonation of delay.

(3.) Obviously and transparently, the procedure adopted by the learned Magistrate is not correct. The complaint is barred by limitation. Of course, the delay can be condoned by the learned Magistrate now. But before condonation of delay, the accused is certainly entitled to be heard. There is no specific provision under Sec.142(b) of the N.I. Act to order notice to the accused before the delay is condoned. But, it is by now trite that the right to be heard before the delay is condoned is an incident of the principles of natural justice and even when the Statute is silent, all interstitial spaces must be filled and rule of natural justice must be read into all statutes. So reckoned, the order dated 12/7/04 in C.M.P.No.1895/04 is obviously unsustainable. The same deserves to be set aside.