The Trial Court cannot condone the delay in preference of a complaint under Section 138 of the Negotiable Instruments Act without issuing notice to the accused.

1. This Revision is preferred against two concurrent judgments of the Courts below convicting the Petitioner for offence under Section 138 of the Negotiable Instruments Act. The Petitioner faced prosecution for such offence in C.C. No.292 of 2004 and was convicted under judgment dated 5.6.2006. There against he moved an Appeal which came to be dismissed on 15.11.2006. Against such dismissal, the present Revision is filed.

2. This Court considers it not necessary to discuss the facts of the case as on being informed that the Petition to condone delay moved whilst preferring the Complaint before the Trial Court came to be allowed without notice to the Petitioner/Accused, this Court has called for the records from the concerned Trial Court. The Trial Court has forwarded the petition to condone delay moved before it in C,M,P,No.1703 of 2004.

3. We find that the correct position stands informed by learned Counsel for the Petitioner. No notice has been issued to the Petitioner/Accused, before the Trial Court entered upon a decision of condoning the delay in preference of the Complaint under Section 138 of Negotiable Instruments Act. As held by the Apex Court in P.K. Choudry v. Commander 48 BRTF (GREF), 2008 (13) SCC 229, the Trial Court could not have condoned the delay in preference of Complaint without having issued notice to the Accused.

4. For the aforesaid reason, this Revision succeeds and the judgment of the Courts below convicting the Accused under Section 138 of Negotiable Instruments Act shall stand set aside. The fine amount if any paid shall be refunded to the petitioner.

Criminal Revision Petition is allowed. No costs.