IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 496 of 2007()
1. LALITHA RAMACHANDRAN,
... Petitioner
Vs
1. M/S.SHAN FINANCIERS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.S.SANAL KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :29/03/2007
O R D E R
R. BASANT, J.
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CRL.M.C.NO. 496 OF 2007
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Dated this the 29th day of March, 2007
ORDER
The petitioner faces indictment in a prosecution under
Sec.138 of the N.I. Act. The petitioner has come before this
Court with the grievance that cognizance has been taken
without legal authority inasmuch as the petition is barred by
limitation. Cognizance was taken on the basis of a complaint
dated 14/4/04. Notice of demand was served on 9/2/04. The
petitioner contended that the payment must have been made
within 15 days of receipt of the notice i.e., 9/2/2004. The
cause of action arises after 15 days and the complaint must
have been within one month. In any view of the matter, the
complaint must have been filed by 24/3/04 (i.e., 9/2/04 + 15
days + one month).
2. Notice was given to the respondent/complainant.
The respondent/complainant has entered appearance through
counsel. Report of the learned Magistrate was also called for.
CRL.M.C.NO. 496 OF 2007 -: 2 :-
The report of the learned Magistrate shows that an order has
been passed condoning the delay of 26 days in filing the
complaint. A copy of the order has also been furnished. The
order dated 12/7/04 in C.M.P.No.1895/04 shows that the delay of
26 days in filing the complaint was condoned by the learned
Magistrate without notice to the accused/the petitioner herein.
The report of the learned Magistrate also shows that the delay
was condoned without and before giving notice to the accused to
raise his objections against the prayer for condonation of delay.
3. Obviously and transparently, the procedure adopted by
the learned Magistrate is not correct. The complaint is barred
by limitation. Of course, the delay can be condoned by the
learned Magistrate now. But before condonation of delay, the
accused is certainly entitled to be heard. There is no specific
provision under Sec.142(b) of the N.I. Act to order notice to the
accused before the delay is condoned. But, it is by now trite
that the right to be heard before the delay is condoned is an
incident of the principles of natural justice and even when the
CRL.M.C.NO. 496 OF 2007 -: 3 :-
Statute is silent, all interstitial spaces must be filled and rule of
natural justice must be read into all statutes. So reckoned, the
order dated 12/7/04 in C.M.P.No.1895/04 is obviously
unsustainable. The same deserves to be set aside.
4. In the result:
(a) This Crl.M.C. is allowed in part.
(b) The order dated 12/7/04 in C.M.P.No.1895/04 passed
by the learned Magistrate and the consequent cognizance taken
are set aside.
(c) But it is directed that the learned Magistrate must
dispose of C.M.P.No.1895/04 afresh after giving the petitioner
herein an opportunity to be heard.
(d) The parties shall appear before the learned Magistrate
without waiting for any further notice from the learned
Magistrate on 16/4/07 to continue the proceedings. The learned
Magistrate shall, after hearing both sides, pass appropriate
orders afresh in C.M.P.No.1895/04 and take appropriate decision
on the question of cognizance.
CRL.M.C.NO. 496 OF 2007 -: 4 :-
5. I may hasten to observe that I have not intended to
express any opinion on merits on the acceptability of the claim of
the complainant to get the delay condoned or on the question of
cognizance being taken. The learned Magistrate must take
appropriate decisions on merits.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge