Rajesh Chandra Verma vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

Though opposite party No.2 has put his appearance through the counsel but no one turns up on behalf of the opposite party No.2 in spite of repeated calls.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 24.01.2020 passed by the learned Additional Chief Judicial Magistrate, Hazaribagh in connection with Complaint Case No.2245 of 2019 whereby and where under cognizance has been taken against the petitioner for having committed the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

Learned counsel for the petitioner submits that though the complaint was filed after a delay and a petition to condone the delay was filed by the complainant but the learned Additional Chief Judicial Magistrate, Hazaribagh has taken cognizance of the said offence without passing any express order of condoning the delay nor giving any opportunity of being heard to the petitioner who is the accused-person of the said case.

In support of his contention, the learned counsel for the petitioner relies upon the judgment of the High Court of Tripura in the case of Sri Sumit Deb vs. Sri Joy Deb & Another passed in Crl. Appeal No.09 of 2020 dated 30.05.2022 wherein the High Court of Tripura relied upon the judgment of the Hon’ble Supreme Court of India in the case of State of Maharashtra vs. Sharadchandra Vinayak Dongre reported in (1995) 1 SCC 42 in which case the Hon’ble Supreme Court of India approbated the view taken by the High Court in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. Hence, it is submitted that the impugned order, being not sustainable in law, be set aside.

Learned Addl.P.P. appearing for the State on the other hand submits that the trial is at an advance stage and the witnesses have been examined. Hence, at this belated stage, the prayer of the petitioner ought to not be allowed. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that this Court considered the proposition of law in this respect in the case of Jawed Alam vs. The State of Jharkhand & Another passed in Cr.M.P. No.4611 of 2022 dated 22.01.2024 wherein this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of P.K. Choudhary vs. Commander, 48 BRTF (GREF) reported in 2008 AIR SC 1937 wherein, in a case relating to the offences punishable under Sections 166 and 167 of Indian Penal Code, when a complaint petition was filed belatedly, the Hon’ble Supreme Court of India observed that the delay in launching the prosecution could not have been condoned without notices to the accused person of the case and this court in that case held that even in a complaint relating to the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, if the complaint is filed belatedly with a prayer to condone the delay in filing the complaint, opportunity of being heard is to be provided to the accused-person of the case before passing any order of such condonation of delay.

Now coming to the facts of the case, since undisputedly the learned Additional Chief Judicial Magistrate, Hazaribagh has neither provided any opportunity of being heard to the petitioner in respect of the petition for condoning the delay filed along with the complaint by the complainant, nor expressly condoned the delay, in the order dated 24.01.2020 by which the learned Additional Chief Judicial Magistrate, Hazaribagh has taken cognizance in connection with Complaint Case No.2245 of 2019; hence in the considered opinion of this Court, the order dated 24.01.2020 passed by the learned Additional Chief Judicial Magistrate, Hazaribagh in connection with Complaint Case No.2245 of 2019 is not sustainable in law. Hence, the same be quashed and set aside.

Accordingly, the order dated 24.01.2020 passed by the learned Additional Chief Judicial Magistrate, Hazaribagh in connection with Complaint Case No.2245 of 2019, is quashed and set aside.

The matter is remitted back to the learned Additional Chief Judicial Magistrate, Hazaribagh to pass a fresh order in accordance with law after giving an opportunity of being heard to the petitioner of this criminal miscellaneous petition, in connection with the said Complaint Case No.2245 of 2019.

In the result, this Criminal Miscellaneous Petition is allowed.