Karnataka High Court
Sri T S Muralidhar vs Sri H Narayana Singh on 23 March, 2010
Equivalent citations: (2011) 1 NIJ 67, AIR 2010 (NOC) 1075 (KAR.), 2010 CRI. L. J. 3315, 2011 ACD 48 (KAR), 2010 (3) AIR KANT HCR 117, (2010) 92 ALLINDCAS 614 (KAR), 2010 (92)ALLINDCAS 614, (2010) 2 KCCR 1404, (2011) 3 BANKCAS 281, (2011) 1 BANKCAS 649, (2010) 3 CRIMES 863, (2011) 1 ALLCRILR 297, (2010) 5 KANT LJ 149, 2010 (3) CRIMES 863 SN
_, . V' j ; ?A'TiL, Ami}
IN THE HIGH COURT OF KARNXTAKA AT BANGALORE
DATED THIS THE 23*" DAY OF MAIEH 2010
BEFORE
THE HON'BLE MR. JUSTICE KN. KESHAVAN_A1?.AYAN11" ' V'
CRH\/IINALAPPEALNO.186 2007
BETWEEN:
SR1 T S MURALIDHAR
S/O SRIRAMAIAH
AGED ABOUT 35 YEARS = r
R/AT THIRUMA}I,.ASHE'I'I'Y HAILI _ '
VILLAGE, ANUGONDANA}i£LLIJ---HOBLI I
HOSAKOTE TQ _ _ _
BANGALORE -- 560 06?." ~
[BY SMTCLARE GE01;zc:{i«:,:}xm-.:1 * 'V
AND:
SR1 H NARAYANA SINGH ._
PROPRIEIUR ..
H N ENTERPRESESE.-."S'. ..
S/0 LATE HIRA SINGS-, _
AGED ABGUT 60
R;{'=AT NO.100/'23, " "
SANi3i¥.CLoNi;__RoAD " '
OPRHAMSA ' "
RJUDRAPPA GARDEN.
L3ANGAl.O.RE3 --, 560 'O47. RESPONDENT
recording the sworn statement of the complainant directed registration of the criminal case as perhhis Order dated 1 1.2.2004 and summons were or_de're--d_~ _ issued to the respondent ~ accused. Upe»n._':j's.erv.ic«e of w it summons, the accused appeared .befbrei_the'- Magistrate and pleaded not giiiltydhfor the'v:ac.cu.,satiOns made against him and ciaime_d'te be tried..d_:V._Du_iring the trial, the complainant as PW. 1 and was cr0ss--exainined. Exs.P.1 to 13.13. _ u .
4. 'i'hef.__ v:f:espt':1id'en_'t._ 'accused during his examiriationx .313 Cr.P.C., denied all the incriminating appearing against him. in defer.§ce,._ he himself as DW.1 and also 13.1 to 13.3. It was the contention of the _-- 'accused that the complaint was barred by . time" as': previded by Section 142 of the NJ. Act, xi'tééiitrietrefore, the court had no jurisdiction to take Vinerits, it appears, the complainant flied A'Ct__t'3~seeking Condonation of delay in filing the 5 cognizance of the said offence. It was also his contention that the statutory notice was not properly addressed to him, therefore, there was no notice on him. He also denied the .
complainant that he had bQrf,QWQ(i.O'f H"
Rs.1.00,000/-- and that the chiequ:e_"ih been issued for the discharg'e_V:of..the--' ,.1§ _ > his further defence that he ideiivjeredd' blank cheques to the fathe'r--i'rr+1aw'i~:«,Vgfu as security and one 'been misused in the though the C()I}'1p12v3;if1;'Efl1-"tiArthciiiftflt nor the cheque in questioi1ghad'hee:\fij discharge of debt or other liability toxthe cornpltagirnant. the----«Inatter was pending for hearing under proviso (b) to Section 142 of the J' .0 0. ''''A,ppeal/2000.'"V'i'he said appeal was made over to ._tl;1"3." of the Fast Track Court--II. The K."4"'-."}11dgIIient under appeal dated 23.11.2006 held that as
-complaint was barred by time, the learned complaint. Though the said application was opposed by the respondent -- accused, the learned Magistrate':b:ygh'is order dated 10.4.2006 allowed the said 0' condoned the delay and thereafter'---proceeded; further arguments. Ultimately 17.5.2006, the learned Magistfate, held."the"_.resV15o'ndent ' V
- accused guilty of the__ésa1aa"off¢§;;§¢..gndl'¢0,1Sgquent;y convicted the respondent' the offence punishable NJ. Act and sentenced . 000/ ~.
said judgment of conviction sentence, the respondent filed appeal, l:>efo'1'e._:'tlie.F learned Sessions Judge in Criminal Qfiicer of the Fast Track Court~II, by the kc...
Magistrate had no jurisdiction to take cognizance of the offence alleged in the complaint and since:h:"'»ino application had been filed seeking condonation"of'_~tlel§»;$} as per proviso (b) to Section l-42 of the of filing the complaint, and since:,=__vthe-..learnetl.Magistrate a had not exercised the discretion togcondo;-.1e' 'thendellaye, the trial is vitiated assuch conviction recorded by the perverse and illegal. The Appellate:.Cour't that, from the d0Cum€ntE¥"3s'§".:'?Vl§:§;nCi;_: accused it is established"'th'at<.; residing in the address mentionedv therefore there was no proper service.,of' that view of the matter, the learrted__XJudge"'of,___the Fast Track Court allowed the the judgment of conviction recorded by the "learned Magistrate and consequently acquitted the accuseclg As against this judgment of the learned Judge A 51' Fast Track Court, the complainant has presented 1') . V.°the"=cornplai.nant to know about the service of on 18.12.2003 and therefore, the :"'limitatio"zi as such the Lower Appellate Court is not justified in acquitting the accused on the ground of 8 this appeal. Upon service of notice of this appeal, the respondent has appeared through his counsel. '7. I have heard Smt.Clare George, appearing for the appellant and counsel appearing for the respondent. judgments under appeal.
8. It is the submissions"of'e.t}iefi'1earnecl"counsel for the appellant that the knowledge of service of as he did not even after expiry of issue of notice and it is only!'thro1igl'iA,_i:g.3figildorsement received from the postal .,anthori_ties .vdated'":12.2.2004, marked as Ex.P.13, cornplaiin on 9.2.2004 was within the period of /1 cognizance ofllltltevvoffence alleged unless the complaint 11Vad.beeAn'.fi1edwithin 30 days from the date of accrual of '._the and unless the learned Magistrate chose to 9 delay. It is also her submission that though learned Magistrate did not condone the delay at the tirne of taking cognizance, subsequently by order..:'*.Vdfate--d' 10.4.2006, delay in lodging the complaint condoned and the said order was it respondent -- accused and in challenge to the said order,Vltl1fge~~.learned' :E'~es:sio:i{is"'Ju;dge 0' ought not to have heldrlihat the kévas barred by time, therefore, the Sessions Judge is perVerse,"_'illeg_al to he set aside.
9. On. _._ot~her , tlltiw learned counsel appearirrggv contended that condonation fag end of the trial is not justified ' the no jurisdiction to take the under clause (c) of Section 138 of 10 exercise his discretion to condone the deiay as per proviso to clause (b) of 142 of the N.I. Act. Therefore, it is his submission that theflorder of taking cogni?,_'anfce"oVf the offence without condoning the delay was ' in law, hence, the entire proceedings'was V\Vfitiated..'andv.V 0 therefore, the learned Sessions."1'J1,idg'e acquitting the accused. It .further"v_stihinission 0' that as per clause (c}:~* of pro'V'iso_:'to'"'S'ectitjn-..1{;%é of the N.I.Act, cause of action' cheque to file a of 15 days from the by the drawer and not fro"rnmthe'of the complainant of such drawer and therefore, in the case ori'..'since'"even as per the specific case of ~._thei:icE)Irip1a'inant'Van'd as per the contents of Ex.P. 13, the .no.1tic'e on the accused on 18.12.2003, the cause of for the compiainant to file the complaint "'Started*{i') run from 2.1.2004 i.e., after expiry of 15 days ,0'from..éi'i18.12.2003 and therefore, the complaint filed on 4 _ sides-it "Perused judgments under appeal. '°"'-__VV"'same the cheque was presented for encashment A thrmligh the Banker of the complainant. According to 11 9.2.2004 was clearly barred by time and unless the Magistrate had exercised the discretionary jurisdiction as per proviso to clause (13) to Section 142 of he had no jurisdiction to take cognizance . alleged in the complaint and ll' condone the said delay at the falgerildl also his submission that thle::'defentc'el:__putV"the " it accused has been 'the..llearned Sessions Judge and iudgment of the learned Sessiiong; any illegality or irregularitylllpcaliirig by this Court. I have,bestoWe'd--._rny serious considerations to the su¥3rn'is_sions"nialdeyhbythe learned counsel on both per the case of the complainant, the the cheque on 15.11.2003 and on the /1 12 the case of the complainant he received the information from his banker about the return of the cheque unpaid on 25.11.2003 and thereafter he issued the statutory period of one month H 10.12.2003. As could be eeen:;'tt?e:tt"thepy I*eco:rds,_Tthevi' complaint was prosecuted to the learned Magjsdtrate} on 9.12.2003. Therefore the for' consideration is as to whether the corn:p}aini;VAdwa.s" by as on that day.
12. secit¢iif.:;....?d0.142. directs that in the Code of Criminai' take cognizance of any offeric.e4'punishha'b1ded Section 138 except upon a confipiaint, flirt znade by the payee or the holder the cheque as the case may be and s;-..t_e'h_ made within one month of the date _ on vifhich the cause of action arises under clause (c) of , ., .proViso to Section 138.
preseintetd condories :the delay in exercise of the dis«cretionary*~--power vested in him as per proviso to
-V cognizance"; 0' Therefore, before taking cognizance. it is of the learned Magistrate to find out as to 13
13. Of course, the proviso to clause (b) introduced by Act 55 of 2002 brought into effect from 6.2.2003 states that the cognizance of a complaint may by the court after the prescribed ~ complainant satisfies the court it cause for not making the complaint 70f.
14. Thus from the the N.I.Act, it is clear for the court from taking i.','-offence under Section i¢.:.i¢: is filed in the date of accrual of cause delay in filing the complaint unless the Magistrate whom the complaint is Section 142, he has no jurisdiction to take &/ it "awa're{'oi'~7.'t<hel' facts out as to whether a prirna facie 'lease. for taking note of the offence alleged Section 138 of the Act would start to run from the
--."é3JCV'1V:V)ii"_'fu"'Of 15 days of the date of the receipt of the notice the drawer of the cheque, upon the failure on the 14 whether the complaint filed is within the period of limitation provided under clause (b) of Section with clause (C) of 138 of the Act and if the not within the period of 1in1itatiorr--.prc'siridedV.'i»it whether the complainant has made for condoning the delay. the condoned, he has no j11ri_sdiction*. cognizance. By catena of decisions, that the expression has not been defined eitl?ier'i:::'ir_i."' Procedure or under only connotes that notice of the fact stated in the CO-mplaiént._:o1*».the"-Police report. and make himself therein. _'f'11e' feause of action as per clause [c] of proviso /I
18. that day, the accused had 15 days t'i,I:I'I€?:VtV'.OE':l.II1O1.iITlt. The period of 15 days expired jpcomhpiaint ought to have been filed as provided under Ijjt~1;aust; (5) to Section 142 of the Act. Admittedly, the part of the drawer of the 1dheque to pay the amount demanded in the notice, within 15 days of the receipt of such notice. Reading of clause (c) of Section 1381.'a.nd clause (13) of Section 142 of the Act togethierdj indicates that the cause of action for" b complaint commences from the of the date on which the drawer or deemed to have received 'notice. tpsaidvfiprdoviso does not speak of the cornplainant about the date on Whic.h--.t_he cheque had received even as per the contents complainant placed strong__said to have been issued by the compiainiant"*h'as' bee.n served on the accused on on 30 days from that date 2 the 7 llonlxy' sent b3I'p_registered post acknowledgement due but .through certificate of posting to the same J'co1fn_plain't that the notice sent through certificate of posting is deemed to have been served on the accused
-*Within a reasonable time from the date of dispatch. 16 complaint was filed on 92.2004 and therefore, it was not filed within the period allowed under the there Was delay in filing the complaint. dispute that the complainant did not file " 2 before the learned Magistrate the complaint seeking condonationrof out the reasons for not the period allowed uriderlthle' laiv. the complaint indicates that no on what date the statutory accused so that the as to whether the complaint: not. Even according to the complainaint,the"-notice dated 10.12.2003 was not address__;'' is the plea of the complainant in the /,1 , fig/_...
ioei-"ore the learned Sessions Judge. The learned Magistrate proceeded to pass the judgment on merits on S 5.2006 within about five weeks from the date of 18 commenced. Since the taking of cognizance by the learned Magistrate in this case was without any jurisdiction. the entire trial held against the vitiated and therefore. the learned . rightly held that the learned Magi_stra_te Wasnotjg " "
in convicting the accused and therefore the learned Sessions Judge'la_c'qnittingVthe in = 0' accordance with law. .Slorl""_irregu1arity is pointed out §..j1'1:fit'he As the order condoning on 10.4.2006 on an of the bar Created under Section 397 Cr.P.C., the respcndentlllconnld»not"-haire questioned the correctness of avllreirision. Therefore. the respondent -- within his right in raising the validity oflthe sva'id.VlAorder dated 10.4.2006, as a ground of appeal fl