IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2010 CORAM: THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.29794 of 2007 And M.P.No.1 of 2007 K.Geethakrishnan ... Petitioner Versus M.P.Dhakshinamoorthy ... Respondent Prayer: Petition filed under Section 482 of Cr.P.C to call for the records in C.C.No.60 of 2006 pending on the file of Judicial Magistrate No.III, Salem and quash the same. For Petitioner : Mrs.T.Ramadevi For Respondent : M/s.J.Ramakrishnan O R D E R
The petitioner is the accused in a case alleging commission of offence under section 138 of Negotiable Instruments Act and facing trial for C.C.No.60 of 2006 on the file of the Judicial Magistrate No.III seeks to quash the proceeding against him.
2.The ground taken in support of the quash petition is that the respondent had filed the complaint with a delay of 11 days. The respondent/complainant had towards having the delay condoned filed an affidavit in support of the petition before the Lower Court. The Lower Court had allowed such petition and taken the case on file. In so doing the Lower Court had failed to issue notice to this petitioner. The failure of the Lower Court to issue notice to this petitioner has resulted in grave injustice and prejudice to the accused. It has time and again being held that in allowing a petition for condonation of delay notice ought to be issued to the other side and an opportunity provided to oppose such condonation. Learned counsel places reliance on a decision of this Hon’ble Court in (2007) 2 MLJ (Crl.) 1687 (M.Ravikumar vs. A.Arul).
3.I have heard the learned counsel for the respondent on the above submissions. This Hon’ble Court by the decision above said, has after discussing the law on the subject and arriving at the finding that non-issue of notice to the accused would result in violation of principles of natural justice, held as follows:
“In view of the discussion made above following the decisions of the Hon’ble Apex Court, I direct the learned Judicial Magistrate No.II, Poonamallee, to call for petition and affidavit in proper form from the complainant, for the purpose of condonation of delay, and, decide the matter on its own merits, after due notice to the accused. Till such time, the complaint shall be kept in abeyance and no proceeding carried out, on the taking of cognizance of the complaint. The fate of the complaint will follow the result in the petition to condone the delay, irrespective of the cognizance taken.”
4.I am in respectful agreement with the decision arrived at by the learned Judge in the decision cited. This Court directs that further progress in the complaint case shall be kept in abeyance pending issue of notice to the petitioner/accused on the petition to condone delay filed by the respondent/complainant. After such notice both the parties shall be heard on the merits or otherwise of the condone delay petition. Should the lower Court after hearing both sides decide upon allowing the petition to condone delay, the proceedings in C.C.No.60 of 2006 shall proceed from the stage at which they now stand. Of-course, should the lower Court decide otherwise the proceedings in C.C.No.60 of 2006 shall come to an end.
5.The petition is ordered accordingly. Consequently, the connected miscellaneous petition is closed.
pri
To
1. The Judicial Magistrate No.III, Salem.
2. The Public Prosecutor, High Court,
Chennai