Court No. - 42
Case :- MATTERS UNDER ARTICLE 227 No. - 1236 of 2019 Petitioner :- Gyan Chand Makheeja Respondent :- State Of U.P. And Another Counsel for Petitioner :- Prateek Kumar Counsel for Respondent :- G.A.
Hon'ble Ram Krishna Gautam,J.
This petition under Article 227 of the Constitution of India has been filed by Gyan Chand Makheeja against State of U.P. and Pankaj Varshney with prayer to set aside the order dated 1.2.2019 passed by Additional District & Sessions Judge, Court No. 2, Aligarh, in Misc. Application No. 18 of 2017, Gyan Chand Makheeja Vs. State of U.P. and another, with a further prayer for staying further proceedings of Complaint Case No. 2877 of 2015, Pankaj Varshney Vs. Gyan Chand Makheeja, u/s 138 N.I. Act, P.S. Civil Lines, District Aligarh, pending in the court of A.C.J.M., Court No. 4, Aligarh.
Heard learned counsel for petitioner and learned AGA for the State.
Summoning order of the Magistrate was challenged in Criminal Revision before revisional court, which was reported to be beyond scheduled period prescribed for filing revision. An application u/s 5 of Limitation Act was filed and the same was rejected vide impugned order without issuing notice or providing opportunity of hearing to other side. Impugned order was assumptive presumption of the Presiding Judge. Hence this petition for setting aside the order dated 1.2.2019 and for issuing any other order or direction as may be deemed fit.
Learned counsel for petitioner argued that the application u/s 5 of Limitation Act was rejected without providing any opportunity of hearing. Hence this petition.
Learned AGA opposed the petition.
Perusal of impugned order reveals that application 6 Kha was moved before the revisional court with this mention that on the date 21.12.2015 when the revisionist was summoned he was in jail since 4.6.2015 to 21.9.2016. After release from jail he obtained certified copy of orders dated 7.11.2016 and 22.11.2016. He was not served with any notice before summoning order was passed. Hence this revision after delay of 370 days was filed with a request for condoning the above delay. This application has been rejected by impugned order with this finding that as per office report revision was barred by 298 days and application u/s 5 of Limitation Act was not with sufficient ground because the complainant and accused were resident of same Mohalla and it seems to be improbable that the petitioner was not aware of above summoning order. Hence the application was rejected. It is not apparent that notice was issued to the complainant or objection was filed by complainant or considered by court over application u/s 5 of Limitation Act. Rather presumption of Court has been made the basis of this order. Thus, it is apparently erroneous. Hence, this petition deserves its allowance.
This petition under Article 227 of the Constitution of India is allowed and the impugned order dated 1.2.2019 passed by Additional District & Sessions Judge, Court No. 2, Aligarh, in Misc. Application No. 18 of 2017, Gyan Chand Makheeja Vs. State of U.P. and another, is set aside. The Court below is directed to issue notice to complainant over application u/s 5 of Limitation Act, invite counter objection and rejoinder objection and after hearing both the parties decide the same in accordance with law at the earliest.
Order Date :- 26.2.2019 Pcl