Madhya Pradesh High Court
Smt. Shashi Shrivastava vs Jagdishsingh Kushwah on 14 August, 2007
Equivalent citations: I(2008)BC659, 2007(4)MPHT480, AIR 2008 (NOC) 145 (M. P.) (GWALIOR BENCH), 2008 (2) AKAR (NOC) 207 (M. P.)
Author: Brij Mohan Gupta
Bench: Brij Mohan Gupta
ORDER Brij Mohan Gupta, J.
1. The facts, in brief, are that one complaint has been filed by the respondent against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and under Section 420 of IPC. Cognizance under Section 138 of the Act has only been taken against the petitioner vide order dated 25th February, 2002. On perusal of the complaint, it appears that the same has been filed by his advocate putting his initials only and without the signatures of the respondents/complainant. One application dated 17th October, 2003 has been filed on behalf of the petitioner under Section 245 of Cr.PC for quashing the complaint on the ground that the same has been filed without the signatures of the complainant. Vide reply dated 25th February, 2004, the respondent/complainant has mentioned his willingness to put his signatures on the complaint. Vide order dated 22nd August, 2005, the JMFC, Gwalior has observed that he has already taken cognizance, hence, he cannot go behind his own order. It is also observed that the objection will be considered at the time of final hearing. Feeling aggrieved, Criminal Revision No. 224/05 was preferred by the petitioner which has been dismissed vide impugned order dated 14-11-05 by the Additional, Sessions Judge, Gwalior with the observation that the learned Magistrate has not passed a final order on the dispute. However, the learned Judge has referred a judgment of Bombay High Court in Vijay v. Ramchandra 2003 (1) CRJ 144.
2. The only dispute, which requires to be decided by this Court is, that in these circumstance what will be the fate of such complaint which has been filed without signatures of the complainant and thereafter in Court, he offered to put his signatures and mentioned his willingness to cure the defect.
3. The relevant provision of Section 142(a) of the Act goes as under:
142. Cognizance of offences.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973,--
(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) *** *** *** *** *** (c) *** *** *** *** *** (Emphasis Supplied)
4. As provided there is no dispute that the complaint has been filed by a payee or holder of a cheque in due course. It is also not disputed that the complaint is in writing. The only dispute is that the complaint has been filed without signatures of the complainant. In this regard, it is to be understood that at the time specifying the complaint to be in writing, the legislature did not specify that the complaint will be signed also by the complainant. At the same time, it is also true that it does not mean that the complaint can be filed without signatures or there is no necessity of putting the signatures. But at the same time it is clear that no much stress is provided on signatures. It is also to be kept in mind the object behind introduction of Chapter 17 of the Act contending under Sections 132 to 142, this chapter was introduced in the Act by the Banking, Public Financial Institution and Negotiable Instruments Law (Amendment) Act, 1988 (Act 66 of 1998) with the object of inculcating faith in the efficacy of banking operations and giving credibility to Negotiable Instruments in business transactions and in order to promote efficacy of banking operations. At the same time Court's ought not to loose sight of the provisions of the Act, providing an iron curtain of period of limitations. That, after dishonour of cheque notice is to be given within a period of one month, if the amount is not paid within 15 days of the service of the notice then again within a further period of one month complaint is required to be filed. On perusal of the provisions, it does not appear that the time limit can be extended on sufficient reasons by the Courts. Keeping all these aspects in mind and particularly the phraseology used by the legislature expressing no much stress with regard to putting of signatures, once a complaint is filed without signatures of a complainant and if immediately after becoming aware of this defect just to cure the same, seeks permission, he ought to be permitted to cure the defect, instead of preventing him from availing his right of prosecuting the accused on account of his complaint becoming barred by time in curing that defect. Undisputedly it is a rule of procedure, the provision prescribing procedure are hand made of justice, which should not suffer merely on technicalities. Parties are not to be punished or prevented from availing their rights on account of shear mistake committed on their part. To think about mistake can it be said a mistake of complainant alone? The Advocate who filed it under his signatures, the officer of the Court, who received it in defective form have not added something in it? Whether for such mistake for which only complainant thus not be considered responsible alone can be penalized? Human being is prone to commit mistakes. Punishing a party on a mistake is nothing but denial of justice amounting to miscarriage of justice. If the mistake can be cured without causing any prejudice to the opposite party, or not otherwise prevented by any law for the time in force, that should be permitted to be cured to decide the real dispute on merits in order to administer the real justice. A reasonable time for removing defect ought to be given to the complainant.
5. During the course of arguments Shri Bhadoria, the learned Counsel for the petitioner has drawn attention on two cases one from Madras High Court in M.A. Abdul Khuthoos v. Ganesh & Coy Oil Mills 1999 Cr.LJ 2432. As per the facts of this case, the learned Magistrate returned the unsigned complaint back, to the complainant. The same was filed after 20 days. By the time it became barred by time. The complaint was quashed as the same barred by time. Another from Andhra Pradesh High Court in P. Preetha v. Panyam Cements Minerals Industries Ltd. and Anr. 2002 (6) Cr.J 668. As per the fact of this case not only the complaint but Vakalatnama was also not signed. It appears that while distinguishing the term complaint appearing in Section 2(d) of Cr.PC with the term complaint appearing in Section 142, the learned Judge has shown disagreement with an order passed earlier by another Single Bench of that Court. The learned Judge has observed that if the complaint is filed without signatures of the complainant, that cannot be treated as complaint in writing by a payee.
6. Shri Bhadoria, has also drawn attention at Para 9 of the judgment rendered by Hon'ble Apex Court in Sadanadan Bhadran v. Madhavan Sunil Kumar 1998 (2) MPLJ 422, on the point that the Court should always presume that the legislature inserted every part for a purpose. While explaining the provisions of Sections 138(c) and 142(b) of the Act with regard to the accrual of the cause of action and starting of the limitation, the Hon'ble Court has observed that since in the interpretation of statute the Court always presume that the legislature inserted every part thereof have a purpose and the legislative intention is that the every part should have been effected. As observed herein above the legislature has specifically emphasized that a complaint will always be in writing. As per this emphasis the instant complaint has been filed in writing, and if the complainant is permitted to put his signatures for curing the defect, that does not appear against the intention of the legislature. In my considered opinion, in the facts of this case that as soon as the mistake was brought into the notice of the complainant and he offered to cure the defect, he ought to have been permitted so that his remedy may not become barred by time, merely on this technical ground based on mistake.
7. Consequently the petition is dismissed. It is directed that the complainant will be permitted to put his signatures on complaint for curing the defect and for that purpose a reasonable time, not exceeding 15 days, will be allowed to him. If the complainant keeps himself present in Court and agrees, he will be permitted to put his signatures, else, the complaint will be returned for filing the same within a period of 15 days after curing this defect.