Condonation of delay in section 138 complaints must be decided first after hearing the accused before charge is framed.

In a prosecution under section 138 of the Negotiable Instruments Act, a delayed complaint cannot be carried forward unless the court first decides the condonation application by a speaking order after notice and hearing to the accused. The accused must be given an opportunity to oppose condonation because limitation is a substantive defence, and proceeding to register the complaint and frame charge without that adjudication violates natural justice. The complaint registration and charge were therefore unsustainable, and the matter was remitted for fresh consideration of the delay application.

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Issues: Whether, in a prosecution under section 138 of the Negotiable Instruments Act, 1881, the complaint could be registered and the charge framed without first deciding the application for condonation of delay after hearing the accused.

Analysis: Section 142(1)(b) requires a complaint under section 138 to be filed within the prescribed period, and the proviso enables the Court to entertain a delayed complaint if sufficient cause is shown. Where a condonation application is filed, the accused must be afforded an opportunity to oppose it before the application is decided. Registering the complaint and proceeding further without adjudicating the condonation application deprives the accused of a valuable defence based on limitation and is contrary to the principles of natural justice.

Conclusion: The complaint registration and framing of charge were unsustainable. The proceedings were quashed and the matter was remitted for fresh adjudication of the condonation application after hearing both sides.

Ratio Decidendi: A delayed complaint under section 138 of the Negotiable Instruments Act, 1881 cannot be proceeded with unless the condonation application is first decided by a speaking order after notice and hearing to the accused.

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