LAWS(CAL)-2009-3-60

GAUTAM KUMAR DE Vs. PRIME MOVERS AUTO ASSOCIATES

Decided On March 25, 2009
GAUTAM KUMAR DE Appellant
V/S
PRIME MOVERS AUTO ASSOCIATES (P) LTD Respondents

JUDGEMENT

(1.) WHETHER before condoning delay in the matter of entertaining a petition of complaint in terms of the proviso to Section 142 of the Nl Act a proposed accused should be heard or not is the question that calls for consideration in this application.

(2.) THE petitioners issued certain cheques in favour of the opposite party Nos. 1 and 2 which got bounced. A demand notice followed. The petitioners received the notice but no payment was made. Hence, the complaint which was barred by time by 82 days. In the petition of complaint itself the cause of delay was advanced and prayer was made for condonation of delay. Learned Chief Metropolitan Magistrate by order dated 23rd August, 2007 condoned the delay of 82 days and took cognizance of offence on 25th september, 2007 and then issued process. The petitioners-accused entered appearance on 18th February, 2008, and then a petition was filed on 29th may, 2008 praying for recalling the order dated 23rd August, 2007 whereby delay was condoned without hearing the proposed accused persons. The said petition came to be rejected by the order dated 29th May, 2008 and hence this application under Section 482 of the Cr. P. C.

(3.) MR. Asraf AN, learned Advocate for the petitioner submitted that a time barred complaint, unless delay is condoned according to law, enures to the benefit of the accused in this that on a time barred complaint no punishment is warranted under the law. When a prayer is made for condonation of delay by the complainant, it is the duty of the Court to direct service of the notice upon the proposed accused persons because they have a right to say that factually the grounds for condonation of delay are untrue and evidence could be advanced to rebut the grounds, no matter whether the Court is impressed with the grounds or not. But here in the instant case, the learned Magistrate did not afford the petitioner any opportunity of being heard in the matter of condonation of delay : and even the order dated 23rd August, 2007 whereby delay was condoned is very cryptic and does not contain any reason for such condonation of delay. It is submitted that the grounds for con'donation of delay were false to the knowledge of the complainant and the proposed accused persons and if the proposed accused persons would have been given an opportunity of being heard they could have shown before the Magistrate how the grounds do not stand the test of truthfulness because the grounds factually were directed against the proposed accused person and in such circumstances, the proposed accused person demand a natural justice of being heard.