Crl. M.A. No. 6249/2007

Sanjay Kishan Kaul, J.—Allowed subject to just exceptions.

Crl. R.P. No. 377/2007

The petitioner placed an offer on the respondent vide its letter dated 23.3.2005, for supply of Back Pressure Turbo Generating Sets. There is stated to be a subsequent amendment dated 17.5.2005, whereby it was agreed that the erection and commissioning of the equipment was to be completed latest by first week of November, 2005. The petitioner had given two post-dated cheques to the respondent in May, 2005, dated 8.11.2005 for Rs. 5,75,000 and dated 26.12.2005 for Rs.11,50,000. There are disputes which have arisen in respect of implementation of the purchase order. It is not necessary to go into that issue. Suffice to say that the petitioner did not want the respondent to present the cheques. However, the respondent presented the cheque for Rs.11,50,000, which was not honoured in view of the stop payment instructions of the petitioner.

2. The respondent sent a letter dated 1.3.2006 to the petitioner in the following terms:

“We regret to inform you that your cheque No.000510 dated 26.12.2005 for Rs. 11,50,000 towards commissioning of the T.G. Set when presented to our bankers has returned unpaid due to your stop payment instructions (copy enclosed).

We have been requesting you to release the above payment though various letters including our last letter to you dated 21.2.2006. But, it is regretted that you have not done so. Under these circumstances we will be compelled to refer the matter to our legal department for suitable steps if the above payment of Rs.11,50,000 is not received by us within 72 hours of receipt of this letter at your end by D.D. payable at Delhi. We still hope that you will make arrangements to release the above payment without recourse to other steps.”

3. In response to the said letter, the petitioner sent a reply dated 10.3.2006 disputing the liability and raising issues about performance by the respondent. The petitioner addressed another letter dated 20.3.2006 through Advocate to the respondent whereafter a complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act).

4. It may be relevant to note that the legal notice was also replied to by the petitioner and the petitioner has filed a suit for recovery of Rs.1.77 crores at Kolkata on account of breach of the obligation of the respondent and both these instances happened in April, 2006. The complaint filed was on 3.6.2006 along with an application for condonation of delay in filing the complaint of 28 days. This 28 days delay has been reckoned on the basis of the legal notice dated 20.3.2006.

5. The Trial Court in terms of the Order dated 13.9.2006 condoned the delay in filing the complaint without issuing any notice to the petitioner and thereafter summoning order was passed against the petitioner with notice returnable on 20.3.2007. The petitioner entered appearance on 20.3.2007 whereafter the impugned notice under Section 251, Cr. P.C. has been framed.

6. Learned Senior Counsel for the petitioner contends that the application filed by the petitioner for condonation of delay could not have been allowed without notice to the petitioner and in that behalf has referred to the judgment of the learned Single Judge of this Court in Prashant Goel v. State and Another1 wherein it has been held that the principles of audi alteram partem applied to even administrative proceedings, leave aside judicial proceedings. The rules of natural justice was held to be important parameters of fairness of procedure and, thus, when a complaint was time-barred, the other side got valuable rights inasmuch as time-barred complaint could not be considered on merits unless the delay is condoned. Thus, the accused had a right to argue that in given circumstances delay be not condoned. The accused, thus, could not be deprived of such a valuable right and it was held that this principle would be applicable whe