Accused must be heard before delay is condoned in cheque-bounce complaints, Allahabad High Court rules

Opposite party no. 2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) on 4 June 2025, accompanied by an application seeking condonation of delay.

The Magistrate registered the case and took cognizance that day, before deciding the delay application. On 26 November 2025, the Magistrate allowed the application without giving the applicant, the proposed accused, notice or an opportunity to object; the applicant was subsequently summoned on 1 June 2026. He challenged both orders under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, arguing, among other things, that he was entitled to be heard before delay was condoned.

Whether an accused must be given notice and an opportunity to be heard before a court condones delay in filing a complaint under Section 138 of the NI Act under the proviso to Section 142(1)(b).

Whether the Magistrate’s failure to provide that opportunity required the orders condoning delay and summoning the applicant to be set aside.

Section 142(1)(a) of the NI Act restricts cognizance of a Section 138 offence to a written complaint by the payee or holder in due course; Section 142(1)(b) requires the complaint to be made within the prescribed period, subject to the proviso permitting cognizance after that period where the complainant shows sufficient cause.

The Court held that these provisions must be read together and, referring also to Section 142A, applied the principle of audi alteram partem to conclude that both the complainant and the accused are entitled to be heard on an application to condone delay.

The Court rejected the view that delay condonation under Section 142(1)(b) is solely a matter between the complainant and the court. It reasoned that Section 142(1)(a) and (b) are interlinked and that the accused’s right to a hearing follows from reading them together with Section 142A and the principle of audi alteram partem.

Since the applicant had not been afforded an opportunity to object to the delay application, the Magistrate’s order could not stand. The Court expressly confined its decision to the hearing issue and did not determine whether sufficient cause for delay existed or whether the complaint was otherwise maintainable.

The Court clarified that it had decided only the issue of condonation procedure.