Page No.# 1/6 GAHC010108142023 2026:GAU-AS:13681 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./491/2023 DILDAR HOQUE S/OLATE HAYAT ALI SARKAR VILL- KUMRIPARA (KHUTAMARI) P.O. DARIDURI, P.S. GOALPARA DIST. GOALPARA, ASSAM VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM 2:MOSTAFA AL-MAMUN S/O ABDUL BARIK VILL - HEDAYATPUR DURGAMANDIR WARD NO. 17 PO. BALADMARI P.S. AND DIST. GOALPARA ASSA Advocate for the Petitioner : MR. A K JAIN, Advocate for the Respondent : PP, ASSAM, MR. Z RAHMAN (R-2),MR. A M KHAN (R-2),MD. R ALI (R-2) BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 15-09-2026 Page No.# 2/6 Heard Mr. A K Jain, the learned counsel for the petitioner. Also heard Mr. A M Khan, the learned counsel for respondent no. 2 and Ms. S H Bora, the learned Addl. PP appearing on behalf of State respondent no. 1. 2. This is an application u/s 482 CrPC praying for quashing of the proceeding of the complaint case registered as N.I. Case No. 41/2022 u/s 138 of the N.I. Act which is pending before the Court of learned Additional CJM, Goalpara, Assam. 3. It is submitted by Mr. Jain, the learned counsel for the petitioner that the cognizance of the present case is taken by condoning the delay of 107 days by the learned Additional CJM, vide its order dated 16.02.2023 passed in N.I. Case No. 41/2022 without being assigning any reason or satisfaction to the Court as to why the delay of 107 days was condoned and the cognizance was accordingly taken. He further submitted that the entire order speaks about the earlier complaint filed in a premature stage. But, that cannot be the ground for condoning the delay in instituting the complaint. He further submitted that it is seen from the complaint case that he made a statement that the case is filed well within the period of limitation and that apart one affidavit is also sworn to that regard stating that the case is filed within a period of limitation. However, subsequently one petition was filed for condoning the delay of 45 days before the Court. But, surprisingly the number of delay as per the order of the Court is of 107 and not 45 days. Thus, there is also some contradictory statement made by the respondent while instituting the complaint as well as while filing a petition for condonation of delay. 4. Mr. Jain further submitted that while condoning the delay the learned Page No.# 3/6 Magistrate did not find any necessity to hear the accused and without notice being issued to the accused the petition was heard and delay is condoned without giving any opportunity to the respondent to be present and to hear the petition for condonation of delay. In that context Mr. Jain also relied on a decision of the Apex Court reported in 1994 Legal Eagle 945 [State of Maharashtra v. Sharadchandravinyak Dongre] wherein it has expressed the view by the Apex Court that for condoning of delay in launching a prosecution, cannot be allowed without notice to the accused. Accordingly, Mr. Jain submitted that the ground of filing of the case at a premature stage only cannot be the satisfactory ground for condoning delay of 107 days and to take cognizance. Mr. Jain accordingly submitted that it is a fit case to set aside and quash the proceedings of the Complaint Case registered as N.I. Case No. 41/2022 dated 16.02.2023 passed by the learned Additional CJM, Goalpara. 5. Mr. Khan, the learned counsel for the respondent no. 2 submitted that there is no need of any hearing of the accused at the pre-cognizance stage and the delay was condoned by the learned Trial Court below on being satisfied the grounds/reasons for delay. He further submitted that initially a complaint was lodged before the learned Trial Court below at a premature stage and vide its order dated 29.09.2022 the same was dismissed and liberty was given to the respondent to institute the suit subsequently. Thus, it is not a case that the respondent had instituted a suit with a delay, rather it is the case of the respondent that the N.I. case was instituted at a premature stage, which was accordingly dismissed and liberty was given to the respondent to institute the subsequent case. 6. Mr. Khan further submitted that the Court has the power and authority to condone the delay in N.I. case u/s 142(1)(b), even after the expiry of the Page No.# 4/6 period, provided that the Magistrate is satisfied that there is sufficient cause for making the complaint after the expiry of the period of limitation. In the instant case also it is seen that after dismissal of the earlier complaint filed by the respondent at the premature stage, the subsequent complaint was instituted as liberty was given to the respondent to institute the subsequent complaint. So, considering this ground and on being satisfied, the learned Magistrate had taken cognizance of this case by condoning the delay and hence there cannot be any reason to make any interference in the order of cognizance passed by the learned Trial Court below. Accordingly, he submitted that the present petition may be dismissed. 7. Hearing the submissions made by learned counsels for both sides, I have also perused the case record and the order passed by the learned Trial Court below. 8. It is a case of the petitioner that delay of 107 days was condoned by the learned Trial Court below vide its order dated 16.02.2023 without assigning any reason to the satisfaction of the Court and without issuing any notice to the accused before condoning the delay. In that regard he also cited a decision of the Apex Court wherein it has expressed the view that a notice is to go to the accused before condoning delay. 9. On the other hand it is the case of the respondent that initially a complaint was made u/s 138 of the N.I. Act but, that was in a premature stage and hence the complaint was dismissed with a liberty to file afresh. In pursuant to the said order the subsequent complaint case has been filed with some delay. 10. On perusal of the orders passed by the learned Trial Court below it is seen that initially the case was filed at premature stage and hence vide order dated Page No.# 5/6 29.09.2022 the case was dismissed with a liberty to file/institute a case u/s 138 of the N.I. Act. In pursuant to the said order, the subsequent complaint was filed by the respondent, which is accordingly registered as N.I. Case No. 41/2022 in reference to N.I. Case No. 17/2022. On perusal of the record it is seen that the present complaint is instituted on 14.10.2022 after the return of the complaint along with the documents by the learned Trial Court below vide its order dated 29.09.2022 in connection with earlier N.I. Case No. 17/2022. Thus, it is seen that after receiving back the complaint on 29.09.2022 the present complaint is instituted on 14.10.2022. The learned counsel for the petitioner basically stressed on the point that in the present complaint the statement was made by the complainant that the case is well within the prescribed period of limitation. But, it is seen that after the date of filing of the impugned complaint on 28.06.2022 and after return of the complaint on 29.09.2022, the second complaint was filed/instituted on 14.10.2022. It is also seen from the record that before condoning the delay, the learned Trial Court below had asked for certified copy of order dated 29.09.2022 and by which the earlier complaint was returned giving a liberty to file afresh. The learned Trial Court below by passing the order on 16.02.2023 had calculated the number of delay from 16.07.2022 instead of calculating the same after return of the complaint to the respondent while dismissing the earlier complaint which was filed at the premature stage. So there may be differences in calculating the number of delay while passing the order dated 16.02.2023 but, the fact remain same that after dismissal of the earlier complaint the order was passed only on 29.09.2022 giving liberty to the complainant to file afresh. By returning the earlier complaint along with the relevant documents. The records speak that after return of the earlier complaint on 29.09.2022, the present complaint is Page No.# 6/6 instituted on 14.10.2022. 11. In a case of N.I. Act, the period of institution of case as well as the time limit of issuing notice, etc. are to be considered at the time of institution of a complaint u/s 138 of the N.I. Act. But, Section 142(1)(b) of N.I. Act empowers the Court to take cognizance after the period of limitation if Court is satisfied that there is sufficient cause for not making the complaint within such period of Limitation. 12. In the instant case also it is seen that the cause which is shown is quite reasonable as it is seen that the respondent had filed the earlier complaint at the premature stage and after dismissal of the earlier complaint only a fresh complaint had to be instituted on 14.10.2022 after the order of dismissal dated 29.09.2022. Thus, it is not a case that the complaint was filed after expiry of the statutory limit, rather it is seen that the complaint was earlier instituted at a premature stage. But, due to the dismissal of the earlier complaint, the subsequent complaint had to be instituted, after return of the complaint and document vide order dated 29.09.2022. 13. Considering the detailed discussion made above, this Court is of the opinion that no such irregularity or illegality is committed by the learned Trial Court below, while condoning the delay in instituting the present complaint and taking cognizance of the same. 14. With the above observations, the criminal petition stands dismissed and disposed of. JUDGE Comparing Assistant