Subhash Kashyap vs State of Uttaranchal and Another

Sudhanshu Dhulia, J.—Heard Ms. Prabha Naithani, Advocate for the applicant, Mr. Nandan Arya, AGA for the State of Uttarakhand/respondent No. 1 and Mr. I.P. Kohli, Advocate for respondent No. 2.

This application u/s 482 of Cr.P.C. was dismissed in default on 11.8.2010 and the interim order dated 15.2.2007 was also vacated. Now a restoration application (MCRC No. 743 of 2010) has been filed by the applicant. The reasons assigned for recalling the order dated 11.8.2010 appear to be just and bonafide. In view of the judgment of the Apex Court in Madhumilan Syntex Ltd. and Ors. v. Union of India and Anr. reported in AIR 2007 SCW 1971 and in order to secure the ends of justice, present restoration application is allowed. The order dated 11.8.2010 is recalled and the case is restored to its original number.

Heard parties.

The only ground raised in the present application u/s 482 of Cr.P.C. is that the complaint u/s 138 of the Negotiable Instruments Act, 1881 (from hereinafter referred to as the Act) was admittedly time barred by 13 days, and as such, before the delay could be condoned in the powers vested u/s 142 of the Act, a notice was liable to be given to the applicant / accused.

Impugned order dated 3.9.2005 passed by the Judicial Magistrate, Dehradun has been perused. It is clear that the delay condonation application has been allowed without issuing notice to the applicant / accused. The order dated 3.9.2005 is hereby set aside. This C-482 application is partly allowed with a direction that both the applicant as well as respondent No. 2 will be present before the Court of the Judicial Magistrate, Dehradun on 30.9.2010, where the Court will pass appropriate orders after hearing the parties on the delay condonation application. Both the counsels Ms. Prabha Naithani, learned Counsel for the applicant and Mr. I.P. Kohli, learned Counsel for respondent No. 2 have given an undertaking to this Court that their clients shall be present before the Court on 30.9.2010.

With the aforesaid directions, the instant C-482 application is disposed of. No order as to costs.

The Registry is directed to send a copy of this order to the Court concerned for necessary compliance.

It is clarified that this Court has not made any observations on the merits of the case. The matter has been disposed of on a mere technicality that the accused has not been heard on the delay condonation application. The case has to proceed and to be decided on merits by the learned Judicial Magistrate, Dehradun.