AMITAVA ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this application under Article 227 of the Constitution the petitioner has challenged a proceeding instituted on a complaint relating to the offence punishable under Section 138 of the Negotiable Instruments Act on the ground the complaint was filed beyond the period of limitation as prescribed under the Negotiable Instruments Act and after condoning the delay the Court below took cognizance but without giving any opportunity of hearing to the petitioner, who happened to be the accused in the said case.

(2.) Heard the learned advocate appearing on behalf of the petitioner as well as the learned advocate appearing on behalf of the State. In spite of repeated calls none appeared on behalf of the complainant/opposite party.

(3.) It appears from the petition of complaint annexed with this application and the averment made in Paragraph 9 thereof, according to the complainant's own case the said complaint was to be filed on or before December 22, 2006. It further appears that the said application for condonation of delay under Section 142(b) of the Negotiable Instruments Act was taken up for hearing on January 8, 2007 by the Learned Chief Metropolitan Magistrate, Calcutta. It appears from the finding of the Learned Court below that there has been a delay of 15 days in filing the complaint. The Learned Magistrate allowed the said application for condonation of delay being satisfied with explanation of the complainant, and took cognizance, but before condoning the delay the Learned Magistrate has not given any opportunity of hearing to the present petitioner, who has been arraigned as accused therein. It further appears there was no order of issuance of any notice as regards to the application for condonation of delay. When any application is barred by limitation as because such an application, here in this case the petition of complaint, has been filed beyond the prescribed period of limitation, before condonation of delay and taking of cognizance on such complaint, the party whose rights and interests are likely to be affected adversely by such order, if delay is condoned, must be given reasonable opportunity of hearing before such an order is passed, in other words notice of hearing must be sent to such a party. This is what principle of natural justice demands. However, in this case delay being condoned without hearing the present petitioner the accused persons and even without making any order of issuance of notice, there has been a complete violation of principle of natural justice and the order impugned cannot be sustained and is set aside.