The Magistrate cannot take cognizance of an offence under section 138 of the Negotiable Instruments Act, 1881 without first condoning the delay in filing the complaint, if any, and that the proposed accused persons have a right of audience in the matter of condonation of delay.

1. Heard Mr. Kaushik Gupta, learned Advocate for the petitioner. Affidavit-of-service has been filed showing service as per AD card upon the opposite party No.2 on 24.6.2009. None appears for the opposite party No.2. Affidavit of service filed be kept with the record.

2. Heard Mr. Gupta, learned Advocate for the petitioner. Proviso to clause (b) to section 142 of the N.I. Act reads as follows :

"Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies till. Court that he had sufficient cause for not making a complaint within such period."

This proviso has been brought in the statute by amendment with effect from 6.2.2003.

3. The opposite party No.2 lodged a petition of complaint with the learned Chief Metropolitan Magistrate, Calcutta on 29.12.2008 under section 138 of NI Act against the petitioner alleging non-payment of the amount covered under the bounced cheque despite service of statutory notice. A petition was filed praying for condonation of delay of 44 days in filing the petition of compliant and grounds of delay were advanced in that application. Learned Magistrate, instead of treating the application for condonation, of delay kept the application pending observing that the matter of delay is a matter of evidence and instead of condoning the delay or not condoning the delay, he admitted the, petition of complaint provisionally and took cognizance of offence.

4. The approach of the learned Magistrate is wholly erroneous and unsustainable in law and reference in this connection may be had to the decision of this Court in Gautam Kumar De & Anr. vs. M/s. Prime Movers Auto Associates (P) Ltd. & Anr. reported in 2009 (1) C Cr LR (Cal) 580 wherein this Court dealt with the situation extensively and it is profitable to reproduce the reasonings of the Court as follows :

Now the question is whether the proposed accused persons have right of audience in the matter of condonation of delay in making the complaint under section 138 of the NI Act. The proviso to clause (b) to section 142 of the Act giving power to the Magistrate to condone the delay if sufficient causes are shown was not originally there in the said section 142 but has been introduced by amendment of the Act with effect from 6th February. 2003. However, when the petition of complaint was filed the amendment has come into force as such the prayer for condonation of delay was entertainable. Now a Division Bench of this Court way back in 1981 in Asiatic Oxygen & Acetylene Co. Ltd vs. Registrar of Companies, West Bengal reported in 1981(2) CHN 412 held at paragraph 7 as follows:

"From the, discussion of the rulings of the different High Court it appears to us that the proper and legitimate course for taking cognisance of an offence after extension of the paned of limitation as contemplated under section 473 Cr.P.C. is to give prior notice to the proposed accused of the petition of complaint and the reasons put forward in a petition under section 473 Cr.PC for extending the period of limitation so that the accused can be heard before the offence is taken cognizance of and the Court taking cognizance of the offence can avoid the necessity of reviewing its own tentative decision. That procedure was not followed in the case before us while the learned Chief Metropolitan Magistrate recorded orders dated 18.8.78 and 6.3.80. The aforesaid orders were passed in violation of rules of' natural justice. We, therefore, set aside the orders dated 18.8.78 and 6.3.80 passed by the Chief Metropolitan Magistrate in case No. C/ 1147 of 1978. The learned Chief Metropolitan Magistrate will, however, be at liberty to give notice to the accused named in the petition of complaint of the petition for condonation of delay filed by the complainant under section 473 Cr.PC and hear the proposed accused and thereafter to pass appropriate orders on the said petition", This decision has surveyed a decision of the Privy Counc