IMPORTANT POINT
Accused is not entitled to hearing before Court may consider taking cognizance of time barred complaint.

J.P. Singh, J.—To discharge the existing liability arising out of a Contract for Fabrication of a Pandal at Jammu, the petitioner Sushant Bakshi delivered cheque dated 1.1.2004 for Rs.50,000 to the respondent Manju Ghosh. When presented for payment it was dishonoured. Notice dated 23.3.2004 served by the respondent on the petitioner requiring him to pay the amount of the dishonoured cheque, remained unheeded. The respondent thereafter filed a Complaint against the petitioner seeking his conviction and punishment for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. Seeking condonation of delay, which had occasioned in filing the Complaint beyond the period prescribed under Section 142 of the Negotiable Instruments Act, it was stated in the Complaint that the Complainants husband had met with an accident and her infant daughter taken seriously ill at Gurgoan, which had disabled the filing of the Complaint within the time prescribed therefor .

3. Taking cognizance of the Complaint, the learned Chief Judicial Magistrate, Jammu, issued process against the petitioner.

4. Aggrieved by Order dated May 20, 2004 of the learned Chief Judicial Magistrate and Order dated December 26, 2005 of the learned 1st Additional Sessions Judge, Jammu, dismissing the petitioners Revision against the learned Chief Judicial Magistrates Order, the petitioner has approached this Court seeking quashing of the Orders of the two Courts urging that having entertained the Complaint, without providing opportunity of hearing to the petitioner while considering respondents request for condonation of delay in filing the Complaint, the learned Chief Judicial Magistrate had acted without jurisdiction and his order was, therefore, illegal and void.

5. Appearing for the petitioner, his counsel Sri K.S. Pathania, submitted that the respondents Complaint being barred by time, delay in its filing could be condoned, only after hearing the petitioner, who was arrayed as accused in the Complaint and that the process issued by the learned Chief Judicial Magistrate, without hearing the petitioner on the issue as to whether the delay deserved condonation, was illegal and violative of the principles of Natural Justice flowing from the maxim audi alteram partem.

6. Learned counsel placed reliance on State of Maharashtra v. Sharad Chandra Vinayak Dongre and others1; P.K.Choudhury v. Commander2; M/s Pepsi Foods Limited and another v. Special Judicial Magistrate and others3; Prashant Goel v. State and another4; Gautam Saikia v. Diganta Sarmah5; Sajjan Kumar Jhunjhunwala and others v. M/s Eastern Roadways Private Limited6; M/s Keciyo Coconut Oils Private Limited and others v. State of Kerala7; Parkash Chandra Sharma v. Kaushal Kishore8, to support his submissions.

7. Supporting the process issued on the respondents Complaint, the respondents learned counsel Sri Navneet Dubey would say that there being no provision in the Negotiable Instruments Act, 1881 contemplating opportunity of hearing to an accused before considering the issuance of process, the petitioner was not required to be heard by the Court while considering the complainants plea for condonation of delay in filing the Complaint and issuance of process thereon, and in this view of the matter, the cognizance taken by the learned Magistrate, on being satisfied that the delay in filing the Complaint, was sufficiently explained by the complainant, cannot be faulted.

8. I have considered the submissions of learned counsel for the parties and gone through the case law cited at the Bar.

9. The question that falls for determination in this Criminal Revision is:

Whether a Court empowered to take cognizance of offence punishable under Section 138 of the Negotiable Instruments Act, is, in law, required to hear the accused when the Complaint was made after the time prescribed for its filing under Section 142(b) of the Negotiable Instruments Act, 1881 explaining the delay in its filing before ta