Sec 138 NI Act | Magistrate Must Afford Opportunity Of Hearing To Accused Before Condoning Delay In Filing Complaint: Allahabad High Court

"The principle therefore, emerges that no one should be condemned unheard and there would be hardly any harm, if the accused in this case is being heard in the matter of condoning the delay in filing the complaint before taking cognizance of offence. “Allahabad High Court, in a significant ruling dated 7 October 2026, held that a Magistrate is legally obligated to afford an opportunity of hearing to the accused before condoning the delay in filing a complaint under Section 138 of the Negotiable Instruments Act (NI Act).

A bench of Justice Brij Raj Singh observed that the principles of natural justice, specifically audi alteram partem, cannot be bypassed at the pre-cognizance stage of proceedings under the NI Act.

The applicant, Sajid Husain, approached the High Court challenging an order passed by the Magistrate in a case under Section 138 of the NI Act. The Magistrate had allowed an application filed by the complainant (opposite party no. 2) under Section 5 of the Limitation Act, condoning the delay in filing the complaint, and subsequently issued a summoning order against the applicant without issuing notice or hearing his objections regarding the delay.

The primary question before the court was whether the proviso to Section 142(1)(b) of the NI Act, which empowers a court to condone delay in filing a complaint, implicitly excludes the accused from being heard at the pre-cognizance stage. The court was also called upon to determine whether the failure to provide an opportunity of hearing to the accused renders the order of condonation and the subsequent summoning order legally unsustainable.

The court analyzed the statutory scheme of the Negotiable Instruments Act, particularly Section 142(1)(b), which governs the taking of cognizance for dishonored cheques. While the complainant argued that the condonation of delay is a matter solely between the court and the complainant, the court rejected this narrow interpretation, emphasizing that the accused holds a vital interest in the proceeding.

Right To Be Heard As A Fundamental Principle

The court underscored that the cardinal principle of audi alteram partem mandates that a party likely to be affected by a judicial order must be heard. The bench reasoned that once the prescribed period of limitation for filing a complaint under the NI Act expires, a valuable right accrues in favor of the accused, and therefore, an ex-parte condonation of delay without notice causes prejudice to the defense.

"The accused has a right to be heard in view of the provisions of Section 142A read with Section 142(1)(b) of the Negotiable Instruments Act. Audi alteram partem is a cardinal principle which provides a right of hearing to a party in the proceedings of a case. This cardinal principle cannot be taken away from the applicant."

Rejection Of Procedural Shortcuts

The court explicitly disagreed with the view that because the NI Act contemplates summary proceedings, the requirement of notice at the pre-cognizance stage should be dispensed with. The court held that while the statute seeks to ensure the sanctity of commercial transactions, it does not permit the circumvention of fundamental judicial fairness. The court cited precedents from various High Courts, including Orissa, Tripura, and Karnataka, which have consistently held that the accused must be allowed to contest the application for condonation of delay.

Matter Remanded For Fresh Adjudication

Finding merit in the applicant's contention that he was denied an opportunity to file objections, the court allowed the application under Section 528 of the BNSS. The court set aside the impugned orders and remanded the matter to the Magistrate with a clear mandate to hear both parties on the condonation application before proceeding further. The court clarified that the decision was strictly limited to the procedural necessity of hearing the accused on the issue of limitation.

Date of Decision: 07 October 2026