Andhra HC (Pre-Telangana)
G. Sri Hari vs Nandkishore Lahoti And Anr. on 8 October, 2002
Equivalent citations: 2002(2)ALD(CRI)646, 2002(2)ALT(CRI)556, 2003CRILJ643
ORDER C.Y. Somayajulu, J.
1. Petitioner is the Managing Director of M/s. Srihari Mills Private Limited, Coimbatore, which has business transactions with the 1st respondent in his capacity as the partner of Laxmi Venkatesh Industries, a partnership firm at Warangal. In connection with those business transactions, petitioner issued some cheques to the 1st respondent, which were dishonoured for want of funds. Thereafter 1st respondent, after issuing the statutory notice under Section 138 of Negotiable Instruments Act (the Act), filed a private complaint against the petitioner and another who is the Chairman of Srihari Mills Private Limited, for offences under Section 138 of the Act and Section 420 I.P.C. The learned Magistrate referred the said complaint to the police, Geesukonda P.S. under Section 156(3) Cr.P.C. for investigation and the same was registered as Crime No. 152 of 1995 under Section 420 I.P.C. and Section 138 of the Act. Prior to that, during the absence of 1st respondent, the Manager of Laxmi Venkatesh Industries gave a complaint to Geesukonda police, in connection with the dishonour of the very same cheques issued by the petitioner on behalf of Srihari Mills for offences under Section 420 I.P.C. and Section 138 of the Act, which was registered as Crime No. 127 of 1995. Basing on which the police, after investigation, filed a charge sheet in C.C. No. 326 of 1999.
2. Before the police filing charge sheet in C.C. No. 326 of 1999, petitioner filed W.P. No. 15427 of 1996 before this Court to quash the F.I.R. in Crime No. 127 of 1995 of Geesukonda P.S., on the ground that the police have no jurisdiction to investigate into an offence under Section 138 of the Act, impleading the 1st respondent as 2nd respondent thereto, which was disposed of by my learned brother B. Sudershan Reddy, J., on 2-9-1996 with the following observation:
"It is stated by the 2nd respondent in the counter affidavit that during his absence while he was away in Rajasthan, his Manager preferred a complaint on 2-12-1995 before the Assistant Superintendent of Police, Warangal and the same was forwarded to the S.H.O., which is resulted in registration of Crime No. 127 of 1995 of the said Police Station. The subject matter of investigation by the same S.H.O. in Crime No. 127 of 1995 and the private complaint forwarded by the III Additional Munsif Magistrate, Warangal is one and the same. In such a view of the matter, the complaint preferred by the Manager of the 2nd respondent on 2-12-1995 has really become superfluous. In such view of the matter, there shall be a direction to the 1st respondent to complete the investigation pursuant to the complaint preferred to him by the III Additional Munsif Magistrate, Warangal in S.R. No. 11421 of 1995, dated 7-12-1995 and submit a report to the said Court as expeditiously as possible and thereafter the proceedings on the file of the III Additional Munsif Magistrate, Warangal shall go on in accordance with law. The Writ Petition is disposed of accordingly. No costs."
Subsequent to the above order the S.H.O. Geesukonda P.S., sent a final report in Crime No. 152 of 1995 on 21-8-1999 referring the case as a mistake of fact on the ground that the subject matter of Crime No. 152 of 1995 and the subject matter of Crime No. 127 of 1995 is the same. Thereupon 1st respondent filed Crl.M.P. No. 2981 of 1999 under Section 191 Cr.P.C. to reject the final report and to take the complaint on file after recording his sworn statement. By the order dated 29-9-1999 the learned Magistrate recorded the sworn statement of the complainant and took the complaint on file as C.C. No. 803 of 1999 under Section 138 of the Act and issued summons to the petitioner. This petition is filed to quash the said complaint.
3. The contention of Sri C. Padmanabha Reddy, learned Senior Counsel for petitioner, is that since the police filed a charge sheet for the same offence earlier, question of the Magistrate taking cognizance of a second complaint for the same offence on a private complaint does not arise, and so the proceedings in C.C. No. 803 of 1999 are liable to be quashed, more so because the complainant is barred by time. The contention of Sri Mandhani, the learned counsel for the 1st respondent, is that in view of the order in W.P. No. 15427 of 1996, this petition is not maintainable and in any event in view of Section 210 Cr.P.C. both cases can be tried together as held in TELLA ZEDSON vs. CHAGANTI KISTA RAO AND OTHERS, 1990(2) A.L.T. 674. Relying on GANESH SUKHLAL JOSHI vs. M.A. BHARATI AND ANOTHER, 1996(3) Crimes 402, D. RAMAMOORTHY vs. K.J.DURAISAMY, 1996(1) A.L.T. (Crl) 152 (Madras) and also a Division Bench Judgment of this Court in APPU RAMANI AND ANOTHER vs. THE STATE, he contended that the relevant date for computing the period of limitation is the date on which the complaint is filed into Court, and not the date on which the cognizance of the offence is taken, the complaint cannot be said to be barred by time.
4. On a complaint given by the Manager of Laxmi Venkatesh Industries, the police, after investigation, laid a charge sheet in C.C. No. 326 of 1999. Obviously because offence under Section 138 of the Act is not a cognizable offence and since there is a special procedure for filing a complaint under Section 138 of the Act, 1st respondent seems to have filed a private complaint by including Section 420 I.P.C. also before the Magistrate. The learned Magistrate referred the same to police under Section 156(3) Cr.P.C. over which 1st respondent has no say. Significantly petitioner filed W.P. No. 15427 of 1996 in which a direction was given to the police to complete the investigation on the complaint referred to in S.R. No. 11421 of 1995 dated 7-12-1995, i.e., Crime No. 152 of 1995. But the police did not file a final report till 28-1-1999, terming it as a mistake of fact. Therefore 1st respondent filed a protest petition and the learned Magistrate, in the interest of justice, allowed the petition, and recorded the sworn statement and took the case on file under Section 138 of the Act. Thus, in respect of the same transaction there are two cases i.e., one in C.C. No. 326 of 1999 for offences under Section 420 I.P.C. and Section 138 of the Act on the report given to the police, and another case in C.C. No. 803 of 1999 registered under Section 138 of the Act on a private complaint filed by the 1st respondent after recording his sworn statement. A Full Bench of this Court in M/s. OPTS MARKETING PVT. LTD. AND OTHERS vs. THE STATE OF ANDHRA PRADESH, I.L.R. (2001) A.P. 87 (F.B.) held that bouncing of a cheque can also be an offence under Section 420 I.P.C. in spite of introduction of Section 138 in the Act. Since there are two cases in respect of the same transaction, one on the basis of a police report and another on the basis of the private complaint, as laid down in TELLA ZEDSON case (1 supra) the proper procedure would be to club both the cases, but not to quash the complaint. If the complaint is quashed, it would cause prejudice to the 1st respondent, for no fault of his, because the complaint filed by police earlier for an offence under Section 138 of the Act would not stand, and for reasons beyond the control of the 1st respondent the private complaint filed by him for offence under Section 138 of the Act and Section 420 I.P.C. was referred to police by the learned Magistrate under Section 156(3) Cr.P.C.
5. I feel it is not proper to give a finding on the question of limitation now, and so I refrain from giving a finding on the question of limitation. The parties are at liberty to raise all the contentions raised before me, in the trial Court.
6. In the result the petition is dismissed, with a direction to the trial Court to club two C.Cs., i.e., C.C. No. 326 of 1999 and C.C. No. 803 of 1999 and hold a common trial and dispose of the cases as expeditiously as possible, at any rate before the end of February, 2003. Parties are at liberty to raise the pleas raised before this Court in the trial Court.