Partha Sakha Datta, J. - (1.) C.R.R, 3408 of 2009 and C.R.R. 3409 of 2009 are being disposed of by this common order without calling upon the O.P. No.1 because wrong committed by the learned Magistrate cannot be justified by any amount of reasoning.
(2.) The O.P. No.1 filed two cases being C-1718 of 2006 and C-1717 of 2006 both under Section 138 of the N.I. Act against the present petitioner. Two petitions of complaint themselves reveal that they were barred by limitation. Under the proviso to clause b) of Section 142 of the N.I. Act if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period which is permissible under the law then the Court may condone the delay. The learned Magistrate on receipt of the two complaints took cognisance of offence and recorded in his order dated 23.4.09 in both the cases that at the time of taking cognizance of offence delay was condoned. Accordingly, the prayer of the petitioner for giving him an opportunity of hearing with regard to the prayer for condonation of delay was rejected by the impugned orders. Law has been well settled in this respect by this Court in Gautam Kumar De & Anr. v. M/s. Prime Movers Auto Associates (P) Ltd. & Anr.
(3.) This Court observed as follows : "Now the question is whether the proposed accused persons have right of audience in the matter of condonation of delay in making the complaint under Section 138 of the NI Act. The proviso to Clause (b) to Section 142 of the Act giving power to the Magistrate to condone the delay if sufficient causes are shown was not originally there in the said Section 142 but has been introduced by amendment of the Act with effect from 6th February, 2003. However, when the petition of complaint was filed, the amendment has come into force, as such the prayer for condonation of delay was entertainable. Now a Division Bench of this Court way back in 1981 in The Asiatic Oxygen and Acetylene Co. Ltd. v. The Registrar of Companies, West Bengal reported in (1981)2 Cal HN 412 held at paragraph 7 as follows:- "From the discussion of the rulings of the different High Courts it appears to us that the proper and legitimate course for taking cognizance of an offence after extension of the period of limitation as contemplated under Section 473, Cr.P.C is to give prior notice to the proposed accused of the petition of complaint and the reasons put forward in a petition under Section 473, Cr.P.C for extending the period of limitation so that the accused can be heard before the offence is taken cognizance of and the Court taking cognizance of the offence can avoid the necessity of reviewing its own tentative decision. That procedure was not followed in the case before us while the learned Chief Metropolitan Magistrate recorded orders dated 18.8.78 and 6.3.80. The aforesaid orders were passed in violation of rules of natural justice. We, therefore, set aside the orders dated 18.8.78 and 6.3.80 passed by the Chief Metropolitan Magistrate in Case No. C/1147 of 1978. The learned Chief Metropolitan Magistrate will, however, be at liberty to give notice to the accused named in the petition of complaint of the petition for condonation of delay filed by the complainant under Section 473, Cr.P. C and hear the proposed accused and thereafter to pass appropriate orders on the said petition;