Madras High Court
B. Kannan vs B.C. Santhanam on 3 February, 1999
Equivalent citations: 1999CRILJ2236
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Kakpagavinayagam, J.
1. The order rejecting the prayer made in the application filed by the petitioner/ accused before the trial Court to discharge him in the proceedings initiated for the offence under Section 138 of the Negotiable Instruments Act is being challenged in this Revision.
2. The point put in issue in this case is as to whether the complaint under Section 138 of the Negotiable Instruments Act is maintainable, when there is already insolvency proceedings pending before the Insolvency Court, in which at the instance of the petitioner/accused, the complainant is shown as one of the creditors.
3. The learned Counsel for the petitioner would submit that when the respondent/complainant filed a complaint dated 15-4-91, the petitioner/accused, much earlier to the initiation of the criminal proceedings, filed an Insolvency Petition in I.P. No. 3/90 before the Sub-Court, Kancheepuram on 5-11 -90 and that therefore, the proceedings under Section 138 of the Negotiable Instruments Act could not be allowed to go on.
4. I have carefully considered the submission and gone through the records.
5. This Revision is to be dismissed even at the admission stage. This case has got a chequered history. The petitioner/accused issued two cheques for a value of Rs. 12,500/- dated 1-10-90. The cheques were presented and the same were dishonoured on 25-2-91. Therefore, on 1-3-91, the respondent/complainant issued a statutory notice to the petitioner. However, the petitioner wantonly evaded to receive the registered notice and so, it was returned to the complainant's counsel on 20-3-91. Therefore, the respondent filed a complaint dated 15-4-91. This was taken on file in C.C. No. 185/91. Originally, the complaint was pending before the Judicial Magistrate No. 1, Kancheepuram. The petitioner, on the strength of some allegation against the Presiding Officer, filed an application for transfer before the Sessions Judge, Chengleput. The respondent, in order to avoid the delay, said no objection. Therefore, the said complaint was ordered to be transferred to the Judicial Magistrate, No. II, Kancheepuram. Even thereafter, without facing the proceedings, the petitioner filed an application for quashing in Crl. O. P. No. 4247/92 before this Court and obtained an order of stay. Ultimately, this Court, after hearing both the parties, dismissed the said petition on 24-2-95. Even after the dismissal, the petitioner never attended the Court nor informed about the dismissal order. The respondent then filed an application before the lower Court on 5-8-97 along with the dismissal order of this Court requesting to continue the trial. Only thereafter, the trial commenced on 17-6-98 and 29-7-98 and witnesses P. Ws. 1 to 3 were examined in chief and cross. After the questioning under Section 313, Cr.P.C. was over, the case was posted for defence. At that stage, on 9-9-98, the petitioner filed an application to discharge the accused on the ground that even prior to the filing of the said private complaint, the accused had filed an Insolvency Petition against all the creditors in which the complainant was shown as the 6th creditor and that when the subject-matter of the cheque amount was also included in the insolvency proceeding, the proceeding under Section 138 of the Negotiable Instruments Act has to be dropped and the accused may be discharged, on 5-10-98, the respondent/complainant filed a counter. After hearing both the parties, the learned Judicial Magistrate No. II, Kancheepuram passed an order dated 7-12-98 dismissing the said application. This is sought to be challenged in this revision.
6. At the outset, I shall mention that the very same ground was raised before this Court in the earlier quashing petition. The view expressed by this Court earlier is that any pendency of the insolvency proceeding or the order of interim protection under Section 10(1) of the Insolvency Act cannot absolve the petitioner from the criminal liability under Section 138 of the Negotiable Instruments Act. When this Court in the earlier petition rejected the very same ground, it is not proper on the part of the petitioner to come again before this Court by way of Revision under the garb of challenging the order of the trial Court dismissing the discharge petition by upholding the earlier view expressed by this Court.
7. Furthermore, after all the witnesses had been examined on the side of the prosecution, at the fag end of trial, the petition for discharge was filed before the lower Court probably to invite the order of dismissal which can be challenged before this Court in Revision in order to gain some more time. As expected by the petitioner, the said application was dismissed and thereafter, the petitioner through this Revision has approached this Court.
8. On consideration of the above background, it could be very well concluded that this is the second round of litigation taken by the petitioner virtually to protract the proceedings further. It is noticed that the proceedings were initiated in the year 1991. Even after 8 years, the proceedings are not allowed to be completed by adopting various tactics by the petitioner.
9. As indicated earlier, this Revision has to be dismissed even at the admission state on two I ground under:-
(1) There is no provision for the summon cases to file an application for discharge under Section 245, Cr.P.C. that too, after all the witnesses have been examined. Therefore, the order of the trial Court dismissing the application for discharge is perfectly valid.
(2) There is no prohibition either in the Insolvency Act or in the Negotiable Instruments Act for the complainant to approach the criminal Court to take penal action against the accused for the offence already committed under Section 138 of the Negotiable Instruments Act either because the insolvency proceedings are pending or even he was declared as an insolvent. The protection given under Sections 29 and 31 of the Provisional Insolvency Act is extended to the debtor in respect of civil detention and civil arrest alone. It would not cover the proceedings under Section 138 of the Negotiable Instruments Act. Therefore, on this ground also, this application has to be dismissed.
10. Accordingly, this Revision is dismissed. The trial Court is directed to continue and finish the further trial and dispose of the case in the light of the observation above made.