Madras High Court
Jeyaprakash vs Arjunan on 19 September, 2018
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 19.09.2018
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD).No.256 of 2014
and
M.P.(MD) Nos.1 and 2 of 2014
Jeyaprakash ..Petitioner
Vs.
Arjunan ..Respondent
PRAYER: This Criminal Original Petition has been filed under Section 482 of
Criminal Procedure Code, to call for the records relating to the private
complaint in S.T.C.No.1870 of 2010 on the file of the Judicial Magistrate
Court No.1, Kuzhithurai and quash the same as illegal.
!For Petitioner : Mr.R.Gandhi
^For Respondent :Mr.C.K.M.Appaji
:ORDER
This quash petition is filed to quash the private complaint in S.T.C.No.1870 of 2010 on the file of the Judicial Magistrate Court No.1, Kuzhithurai having been taken cognizance for the offence under Section 138 of Negotiable Instrument Act read with Section 142 of Negotiable Instrument Act as against the petitioner herein.
2.The respondent filed a complaint to punish the petitioner for the offence under Section 138 of Negotiable Instrument Act read with Section 142 of Negotiable Instrument Act, alleging that the petitioner and the respondent are friends. On 10.09.2009, the petitioner approached the respondent/complainant and requested to lend a sum of Rs.2 lakhs for his family need. The petitioner also agreed to repay the same, within two months. The respondent lent a sum of Rs.2 lakhs to the petitioner and towards repayment of the said loan, the petitioner issued a cheque bearing No.029422 dated 30.11.2009 drawn on Tamil Nadu Mercantile Bank, Palliyadi. On instructions, the said cheque was presented through the respondent bank and the same was returned for the reason ?funds insufficient?. Thereafter, he also issued statutory notice to the petitioner and even after receipt of the same, the petitioner did not repay the amount. Therefore, he filed the complaint along with condone delay petition in Crl.M.P.No.4041 of 2010 on the file of the Judicial Magistrate No.1, Kuzhithurai. The learned Judicial Magistrate condoned the delay and had taken cognizance punishable under Section 138 of the Negotiable Instrument Act against the petitioner and issued the summons. The entire proceedings is under challenge in this quash petition.
3.The learned counsel appearing for the petitioner would submit that the respondent issued statutory legal notice as mandated under Section 138 of the Negotiable Instrument Act by addressing a wrong person instead of the petitioner. Therefore, the mandatory requirements under Section 138 of the Negotiable Instrument Act is not complied with and as such, the complaint is not maintainable as against the petitioner herein. He would further submit that the complaint has been filed with the condone delay petition in Crl.M.P.No.4041 of 2010, wherein, the learned Judicial Magistrate without even ordering notice and without giving any opportunity of hearing to the petitioner, mechanically allowed the same and had taken cognizance against the petitioner herein. Therefore, he prayed for quashing the entire proceedings.
4.The learned counsel appearing for the respondent would submit that the petitioner after borrowal of Rs.2 lakhs, he issued a cheque towards repayment of the said amount and the said cheque was presented through his bank. The said cheque was returned dishonoured with an endorsement of insufficient funds. Therefore, with the dishonest intention to cheat the respondent, he issued a cheque and as such, he is liable to be punished. He would further submit that the statutory notice has been sent to correct address and correct person and after knowing the statutory notice, the petitioner cleverly returned the same to the sender. Therefore, the respondent completed the mandatory requirements as required under Section 138 of the Negotiable Instrument Act. Further, he would submit that the delay in filing the complaint is between the Court and the complainant and as such, no need to issue any notice and no opportunity should be given to the respondent. Therefore, the learned Judicial Magistrate rightly had taken cognizance for the offence under Section 138 of the Negotiable Instrument as against the petitioner herein. Therefore, he sought for dismissal of the quash petition.
5.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and perused the materials available on record.
6.Admittedly, the complaint has been filed along with delay. It is also curious to note that there is no mentioning of number of days of delay caused to file the complaint under the Negotiable Instrument Act. The learned Judicial Magistrate also without even verifying the number of days of delay in filing the complaint and without ordering notice and without giving any opportunity of hearing to the petitioner, mechanically allowed the same and had taken cognizance for the offence punishable under Section 138 of the Negotiable Instrument Act as against the petitioner herein.
7.In this regard, the learned counsel appearing for the petitioner relied upon the judgment reported in 2006(1) T.N.L.R. 140 (Mad) - Agalya Jitendra and others Vs. Arivalagi, wherein, this Court has held as follows:
?6.A bare reading of the provision would clearly indicate that if there is sufficient cause to condone the delay in lodging the complaint, the Court can well condone the delay and take cognizance of the matter. In the instant case, this Court is of the considered opinion that in proceedings under Sec.138 of the Negotiable Instruments Act, the issuance of notice from the time of dishonour of cheque and lodging of complaint from the time of service of notice are all very essential, since the time has got an important role to play. In the instant case, admittedly, there was 12 days delay in lodging the complaints. The petitions were filed to condone the said delay. As rightly pointed out by the learned Counsel for the petitioners, whenever there is a delay in lodging a complaint, an opportunity should be given to the accused to raise his objections, whether such delay could be condoned or not, since, in the opinion of the Court, a right is vested in the accused. At this juncture, the Court has to rely on a decision of the Apex Court reported in AIR 1978 SC 986 (SURINDER MOHAN V. ASCHRAJ LAL CHOPRA), wherein it has been held thus: "The appellant was entitled to the benefit of S.468 which prohibits every Court from taking cognizance of an offence of the category specified in sub-sec. (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind it. For instance they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated a bar to the taking of cognizance has been prescribed u/S.468 of Cr.P.C. and there is no reason why the appellant should not be entitled to it in the facts and circumstances of the case.
7.In the instant case, this Court is of the considered opinion that the accused is rightly interested in the question of extension of the period of limitation and he cannot be denied a hearing on that question. Under the circumstances, in the instant case, the lower Court before considering the petitions, should have issued notice to the petitioners/accused, should have given an opportunity and then, proceeded in the matter. Thus, this Court has to necessarily set aside the impugned orders passed by the Court below and also the taking of cognizance of the cases. Accordingly, they are set aside with a direction to the lower Court to give an opportunity to the accused to put forth their counter in those three petitions and then consider the petitions and pass necessary orders on merits and in accordance with law. The petitioner/accused in C.C.No.113 of 2005 is directed to appear before the lower Court on 15.12.2005 and file his counter. As regards the accused in C.C.Nos.112 and 114 of 2003, on request, they are permitted to file an application under Sec.317 of Cr.P.C., and the lower Court is directed to consider the application; but, they are directed to file their counter on the very day.?
The above said decision cited by the learned counsel for the petitioner is squarely applicable to the case on hand. The cognizance of offence on the complaint to be filed within one month from the date of which the cause of action arises under clause (c) of the provision to Section 138 of N.I.Act. It is relevant to mention the provision to Sec.142(b) of the Negotiable Instruments Act, which reads as follows:
?142.Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) -
(a)
(b)such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138.
Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.?
8.As rightly pointed by the learned counsel appearing for the petitioner, whenever, there is a delay in lodging the complaint, an opportunity should be given to the accused to raise his objections, where such delay would be condoned or not, since in the opinion of the Court, a right is vested with the accused. In the said circumstances, the learned Judicial Magistrate, before allowing the petition for condoning the delay, should have issued notice to the petitioner/accused and should have given an opportunity of hearing. Thus, this Court is of the considered view that the order passed in the condoning delay in Crl.M.P.No.4041 of 2010 in S.T.C.No.1870 of 2010 on the file of the learned Judicial Magistrate No.1, Kuzhithurai is liable to be set aside.
9.Accordingly, the order dated 07.05.2010 made in Cr.M.P.No.4041 of 2010 on the file of the learned Judicial Magistrate No.1, Kuzhithurai is set aside and the matter is remanded to the learned Judicial Magistrate for fresh disposal. The learned Judicial Magistrate is directed to issue notice on the condone delay petition and give sufficient opportunity of hearing to the petitioner/accused to put forth his counter in the condone delay petition and consider the same and pass necessary on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order.
10.With the above direction, this criminal original petition is disposed of. Consequently, connected miscellaneous petitions are closed.
To
1.The Judicial Magistrate No.1, Kuzhithurai.
.