Mrs. Sabina, J.: - Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 04.12.2012, whereby, delay in filing the complaint by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘Act’) was condoned without giving an opportunity of hearing to the petitioner. Consequently, order whereby petitioner was summoned in the complaint vide order dated 25.01.2013 has also been challenged.

2. Learned counsel for the petitioner has submitted that the impugned order (Annexure P-4) whereby, delay in filing the complaint in question was condoned was passed without affording an opportunity of hearing to the petitioner. Hence, the said order was liable to be set aside.

3. In support of his arguments, learned counsel has placed reliance on Riga Sugr Co. Ltd. Vs. Kessels Engg. Works Pvt. Ltd., 2008(4) AD (Delhi) 519 wherein it was held as under:-

“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 Another, 134 (2006) DLT 221 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 that 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 whether the case originates on the lodging of the FIR as a State case or it is on the basis of the complaint filed by the complainant. These observations were also made in view of the pronouncement of the Apex Court in State of Maharashtra V. Sharadchandra Vinayak Dongre,(1995) 1 SCC 42.

A reading of the aforesaid judgment makes the issue no more res integra and , thus, the order of the trial court condoning the delay in issuing summoning and passing the summoning order cannot be sustained. The petitioner ought to have been granted an opportunity first while issuing the notice on the application for condonation of delay before proceeding to the next stage, which did not happen.”

4. Learned counsel has further placed reliance on D. Shyam Sunder Vs. Nella Prabhu Lingamurthy and another, 2011 (7) R.C.R. (Criminal) 480 wherein it was held as under:-

“Having regard to the fact that vested right of the accused of not being prosecuted after expiry of period of limitation is being deprived by passing the impugned order under Section 142 of the Negotiable Instruments Act, this Court is of the view that notice to the accused/respondent is mandatory as per principles of natural justice before passing any order by the criminal Court condoning the delay in filing the private complaint. In that view of the matter, order passed by the lower Court on 10.11.2005 is liable to be set aside with a direction to the lower Court to consider the petition Crl.M.P. No. 3639/2005 afresh after giving notice to the petitioner/accused and after receiving his objections if any for that petition.”

5. Learned counsel has further placed reliance on Sajjan Kumar Jhunjhunwala and others Vs. M/s Eastern Roadways Pvt. Ltd. wherein it was held as under:-

“Lord denning has said:

If the right to be heard is to be a real right which is width anything, it must carry with it a right in the accused man to know the Case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given an opportunity to correct or contradict them