Madras High Court
S.Savithri vs S.K.Babu on 1 August, 2008
Author: K.Mohan Ram
Bench: K.Mohan Ram
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2008
CORAM:
THE HONOURABLE MR. JUSTICE K.MOHAN RAM
CRL.O.P.No. 2689 and 2690 of 2008
1.S.Savithri
2.S.Vijayan
... Revision petitioners
in both Crl.O.Ps.
Versus
S.K.Babu
... Respondent in
Crl.O.P.No.2689 of 2008
T.A.Kuppusamy
... Respondent in
Crl.O.P.No.2690 of 2008
Petitions filed under Section 482 Cr.P.C. praying to call for the records praying to call for the records in C.C.Nos.15160 and 15161 of 2007 on the file of the VII Metropolitan Magistrate, George Town, Chennai and quash the proceedings therein pertaining to private complaints under Section 138 of Negotiable Instruments Act.
For revision petitioners : Mr.Kalyana Sundaram
in both petitions Sr. counsel for
Mr.G.Sethuraman
For respondent in : Mr.S.K.Babu
Crl.O.P.No. 2689 of 2008 party in person
For respondent in : Mr.T.A.Kuppuswamy
Crl.O.P.No. 2690 of 2008 party in person
COMMON ORDER
The above Criminal Original Petitions have been filed by the accused in C.C.Nos.15160 and 15161 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai respectively. The petitioners in both the above petitions are same. But, the respondent/complainant in the petitions are different. The petitioners are facing trial in both the cases for the alleged offence under Section 138 of N.I. Act. The second petitioner is the son of the first petitioner. The respective respondents have filed the private complaints under Section 138 of N.I. Act in respect of the alleged dishonour of cheques said to have been issued in their favour by the petitioners herein. Since the petitioners are same and common questions arise for consideration in both the Criminal Original Petitions, they are being disposed of by this common order.
2. Mr.Kalayanasundaram, learned senior counsel appearing for the counsel on record Mr.G.Sethuraman for the petitioners raised the following contentions:-
(i) The first petitioner viz., Smt.S.Savithri in both the petitions is admittedly not the signatory of the cheques in question, whereas the second respondent is the signatory of the cheques and as such the complaints filed as against the first petitioner are not maintainable and liable to be quashed.
(ii) As far as C.C.No.15160 of 2007 is concerned (Crl.O.P.No. 2689 of 2008), the legal notice of demand dated 18.10.2007 was received by the petitioners only on 25.10.2007 and the 15 days time expired on 09.11.2007, whereas even before the expiry of the 15 days of time, the complaint had been filed on 05.11.2007 itself. Though the cognizance had been taken by the learned Metropolitan Magistrate after the expiry of 15 days , since the complaint had been admittedly filed before the expiry of 15 days from the date of receipt of such notice, the complaint is liable to be quashed.
(iii) There is no legally enforceable liability on the part of the petitioners and as such, the complaints filed under Section 138 of N.I. Act ought not to have been entertained.
3. In support of the above said contentions, the learned senior counsel relied upon the following decisions:-
(i) (2004) 4 Supreme Court Cases 70 ( S.M.S.Pharamaceuticals Limited V. Neeta Bhalla and another)
(ii) AIR 2007 SUPREME COURT 912 (Saroj Kumar Poddar V. State (NCT of Delhi) and another
(iii) AIR 2007 SUPREME COURT 1454 (N.K.Wahi V.Shekhar Singh and others.
(iv) (2007) 6 Supreme Court Cases 555 (C.C.Alavi Haji Vs. Palapetty Muhammed and another)
(iv) (2007) 7 Supreme Court Cases 183 Narsingh Das Tapadia V. Goverdhan Das Partani and another
4. In all the aforesaid decisions, it has been laid down that in terms of Section 138 of N.I. Act, a complaint/petition alleging an offence thereto must demonstrate that the following ingredients exist that
(i) a cheque was issued;
(ii) the same was presented;
(iii) but, it was dishonoured;
(iv) a notice in terms of the said provisions was served on the person sought to be made liable; and
(v) despite service of notice, neither any payment nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.
5. Placing reliance on the aforesaid decisions, the learned senior counsel submitted that only after the expiry of of 15 days from the date of receipt of legal notice, the cause of action for filing the complaint actually arises and hence, a complaint could be filed only after arising of such cause of action and no complaint could be filed before that and if any complaint is filed before arising of such cause of action, such complaint is liable to be quashed. According to the learned senior counsel, admittedly, complaint in C.C.No.15160 of 2007 had been filed on 05.11.2007 i.e., before the cause of action has actually arisen and the cause of action had actually arisen only after 09.11.2007 and therefore the said case is liable to be quashed.
6. On the aforesaid submission, Mr.S.K.Babu and Mr.T.A.Kupuswamy the respective respondents who appeared in person were heard. They fairly submit that the cheques in question have been issued only by the second petitioner/A2 in the above petitions and the first petitioner viz., Smt.S.Savithri is not a signatory of the cheques in question. Therefore, they did not dispute the legal contention put forth by the learned senior counsel as far as the first petitioner is concerned.
7. As far as the other contentions are concerned, the respective respondents submit that since both the complaints contained necessary allegations constituting an offence under Section 138 of N.I. Act, the learned Metropolitan Magistrate was right in taking cognizance of the complaints and the contention that there is no legally enforceable liability as against the second petitioner and therefore, the complaints are liable to be quashed cannot be countenanced, since such a disputed question of fact can be gone into only at the time of trial and not at this stage. The respective respondents further submitted that disputed questions of fact have to be adjudicated only on the basis of the evidence to be adduced in the trial and the same cannot be gone into, in a quash petition. As far as the second contention of the learned senior counsel viz., the complaint ought not to have been filed before the expiry of 15 days time from the date of receipt of the legal notice demanding the cheque amount is concerned, the respective respondents submitted that since the cognizance had admittedly been taken only after the date of arising of cause of action i.e., after the expiry of 15 days time, the complaint cannot be quashed.
8. I have carefully considered the submissions made on either side. Since, admittedly the first petitioner is not a signatory of the cheques in question and the cheques have been issued only by the second petitioner in his individual capacity, the learned Metropolitan Magistrate ought not to have taken cognizance of the complaints as against the first petitioner herein. Therefore, the complaints are liable to be quashed as against the first petitioner. Accordingly all further proceedings in C.C.No. 15160 and 15161 of 2007 respectively on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, insofar as the first petitioner is concerned are quashed.
9. As far as the other contention of the learned senior counsel viz., that there is no legally enforceable debt on the part of the second petitioner and hence the complaints under Section 138 of N.I. Act are not maintainable as against the second petitioner is concerned, it has to be pointed out that whether there is a legally enforceable debt on the part of the second petitioner or not, is a disputed question of fact, which cannot be gone into in a quash petition. But, the same can only be appreciated only on the basis of the evidence to be adduced in the course trial. Therefore, the said contention of the learned senior counsel cannot be countenanced.
10. As far as the contention of the learned senior counsel that the complaint in C.C.No. 15160 of 2007 is liable to be quashed as the same had been filed before the expiry of the 15 days time i.e., before arising of the cause of action is concerned, it has to be pointed out that though the complaint had been filed prior to the arising of cause of action, i.e., on 05.11.2007, when the cause of action had actually arisen only on 10.11.2007, the cognizance had admittedly been taken by the trial Court only after 10.11.2007 and not before arising of cause of action and as such the above contention of the learned senior counsel also cannot be countenanced. In this context, it will be useful to refer to a decision of the Hon'ble Apex Court reported in (2007) 7 Supreme Court Cases 183 Narsingh Das Tapadia V. Goverdhan Das Partani and another . In the said decision , the Hon'ble Apex Court, while considering a similar question , in paragraphs 6, 7, 10, 11 and 12 has observed as under:-
"6. Clause (c) of proviso to Section 138 which makes the dishonour of a cheque an offence provides that nothing contained in the Section shall apply unless:
"(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder indue course of the cheque within fifteen days of the receipt of the said notice."
"Explanation.- For the purpose of this section, 'debt or other liability' means a legally enforceable debt or other liability."
7. The compliance of clause (c) of proviso to Section 138 enables the Court to entertain a complaint. Clause (c) of Section 142 prescribes a period within which the complaint can be filed from the date of cause of action arising under clause (c) of the proviso to Section 138. No period is prescribed before which the complaint cannot be filed, and if filed not disclosing the cause of action in terms of clause (c) of the proviso to Section 138, the Court may not take cognizance till the time the cause of action arises to the complaint.
8....
9....
10. Mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. Again this Court in Devarapalli Lakshminarayanan Reddy v. V.Narayana Reddy dealt with the issue and observed (SCC p.257, para 14) "What is meant by 'taking cognizance of an offence' by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But, from the scheme of the Code, the content and marginal heading of section 190 and the caption of chapter XIV under which Section 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clause (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action , if any, complaint, the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.
11. In the instant case mere presentation of the complaint on 08.11.1994 when it was returned to the appellant-complaint on the ground that the verification was not signed by the counsel, could not be termed to be an action of the Magistrate taking cognizance within the meaning of Section 142 of the Act. The High Court appears to have committed not only a mistake of law but a mistake of fact as well. No cognizance was taken on 08.11.1994, but the Magistrate is shown to have applied his mind and taken cognizance only on 17.11.1994. The learned Judge of the High Court without reference to various provisions of the Act and the Code of Criminal Procedure, wrongly held thus:
"The date of filing i.e. 08.11.1994 in this case is crucial. The return of the complaint filed by the respondent to comply with some objections and subsequent filing on 17.11.1994 in this case does not have any effect therefore, the complaint is premature and is liable to be dismissed."
12. As the impugned judgment is based upon wrong assumptions of law and facts, the same is liable to be set aside."
11. The said decision squarely covers the issue that arises for consideration in the above case. When the above said decision was brought to the notice of the learned senior counsel , he sought to submit that in the light of the Full Bench decision of the Apex Court reported in (2007) 6 Supreme Court Cases 555 (C.C.Alavi Haji Vs. Palapetty Muhammed and another) , the above decision could not be said to be good law. I am unable to accept the said contention of the learned senior counsel. A perusal of the decision reported in 2007(6) SCC 555 (C.C.Alavi Haji Vs. Palapetty Muhammed and another) shows that the issue that came up for consideration in the decision reported in (2007) 7 Supreme Court Cases 183 Narsingh Das Tapadia V. Goverdhan Das Partani and another had not arisen for consideration in that case. In Alavi Haji's case 2007 (6) Supreme Court Cases 555 , the three Judges Bench of the Hon'ble Apex Court restated the well settled legal principles enunciated in the other earlier decision of the Hon'ble Apex Court on the point as to when the cause of action arises under Section 138 of N.I. Act for filing a complaint. While restating the law, the Full Bench has held that the cause of action to file a complaint arises only on the expiry of the period prescribed in clause (c) of the proviso to Sec.138 of N.I. Act for payment by the drawer of the cheque. There cannot be any dispute over the said legal principle, but the question is whether a complaint filed prior to the arising of such cause of action is liable to be dismissed or the proceedings in such a complaint should be quashed was not the question that came up for consideration before the Full Bench of the Hon'ble Apex Court. But, such a question came up for consideration before the Hon'ble Apex Court in the case reported in (2007) 7 Supreme Court Cases 183 Narsingh Das Tapadia V. Goverdhan Das Partani and another. Therefore, there is no conflict between the decision reported in (2007) 7 Supreme Court Cases 183 Narsingh Das Tapadia V. Goverdhan Das Partani and another and (2007) 6 Supreme Court Cases 555 (C.C.Alavi Haji Vs. Palapetty Muhammed and another) as has been contended by the learned senior counsel. The decision in Narsingh Das Tapadia's case reported in (2007) 7 Supreme Court Cases 183 squarely covers the issue that arises for consideration in the present case. The law laid down therein applies to the facts of the case on hand and hence, if the law laid down is applied to the facts of this case, the contention of the learned senior counsel cannot be countenanced. Therefore, both the criminal original petitions insofar as the second petitioner is concerned, fail and the same are liable to be dismissed.
12. For the aforesaid reasons, both the Crl.O.P.Nos.2689 and 2690 of 2008 are allowed insofar as the first petitioner is concerned. Accordingly the complaints as against the first petitioner are quashed and all further proceedings in C.C.Nos. 15160 and 15161 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai respectively insofar as the first petitioner is concerned are quashed. In so far as the second petitioner is concerned both the criminal original petitions are dismissed.
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