Sajid Husain v. State Of U.P. Thru. Its Addl. Chief Secy. Home Lko. And Another

What happened

The opposite party 2 filed a complaint under section 138 of the Negotiable Instruments Act on 4 June 2025 before the Civil Judge (Senior Division), F.T.C./Additional Judicial Magistrate, Ambedkar Nagar, with an application under section 5 of the Limitation Act read with section 142 for condonation of delay. The Magistrate ordered registration and took cognizance on 4 June 2025 without disposing of the condonation application, and allowed it by order of 26 November 2025; the applicant was summoned on 1 June 2026 in Complaint Case No. 2495 of 2024. The applicant sought to set aside both orders under section 528 of the BNSS, arguing that the Limitation Act is not applicable, that the delay was not properly explained, and that no notice was issued to him before the condonation order, which was passed without opportunity of hearing. The State argued that the proviso to section 142(1)(b) is a special provision which cannot be read with the procedural features of section 5 of the Limitation Act, particularly any right of the proposed accused to participate before cognizance. The applicant relied on decisions including Ratanlal Jain (Orissa High Court) and Sankar Choudhary (Tripura High Court).

Questions before the court

• Must the accused be heard before a Magistrate condones delay in filing a section 138 complaint?

Why the court ruled this way

The main ground was that without hearing the applicant, the delay in filing the complaint could not have been condoned, and the applicant had a right to file objections and be heard (paragraph 6). The Orissa High Court in Ratanlal Jain observed that audi alteram partem is the cardinal principle conferring on the aggrieved person the right to be heard (paragraph 16). In P.K. Choudhury, as cited in that decision, the order taking cognizance was set aside for not giving the petitioner an opportunity in the matter of condoning delay and the matter was remitted to decide the application afresh after hearing both sides (paragraph 16). The Tripura High Court in Sankar Choudhary held that the application should be provided to the accused and decided after hearing him (paragraph 20). The proviso to section 142(1)(b) allows cognizance after the prescribed period if the Court is satisfied there was sufficient cause (paragraph 31). Section 142(1)(a) has overriding effect, and the sub-clauses of section 142(1) are interlinked; the accused and the complainant both have a right to be heard before the decision on condonation (paragraph 32). The accused has a right to be heard in view of section 142A read with section 142(1)(b), and the principle cannot be taken away (paragraph 33). Admittedly the applicant was not given an opportunity to file objections (paragraph 34).

Controlling point

The condonation order was passed in breach of natural justice and could not stand.

Order and next steps

The application was allowed and the impugned orders set aside. The matter was remanded to the Magistrate, who must give the parties an opportunity of hearing on the condonation application and decide it independently, uninfluenced by the Court's observations.

Practical implications

An accused served with a summons in a cheque case after a belated complaint should check whether the delay application was decided without notice, and seek to have the condonation order set aside on that ground.

Limits of this ruling

• The Court only required a hearing and did not decide whether sufficient cause for delay exists or whether the Limitation Act applies.