Andhra HC (Pre-Telangana)
K. Mahadevan vs Y. Venkatesh And Anr. on 30 October, 1992
Equivalent citations: [1994]79COMPCAS202(AP), 1993CRILJ2659
JUDGMENT G. Radhakrishna Rao, J.
1. This criminal revision case is filed by the petitioner-de facto-complainant challenging the judgment of the II Metropolitan Magistrate, Visakhapatnam, dated May 3, 1991, passed in C.C. No. 353 of 1990, on his file, acquitting respondent No. 1 herein (accused) of the offence under section 138 of the Negotiable Instruments Act, 1881.
2. The gravamen of the charge against the accused is that the accused gave two cheques dated June 25, 1989, and July 20, 1989, for Rs. 3,600 and Rs. 9,500, respectively, drawn on the Vysya Bank Limited, Visakhapatnam, in favour of the petitioner herein in connection with the credit transactions between them, that the petitioner presented both the cheques in the Karnataka Bank on July 19, 1989, respectively, and July 20, 1989, respectively, and the manager of the Karnataka Bank, in turn, sent the cheques to the Vysya Bank Limited for collection, that the Vysya Bank Limited returned those two cheques to the Karnataka Bank on July 20, 1989, and July 21, 1989, respectively, with an endorsement "Exceeds arrangements as there is no cash balance in the account of the accused", that the petitioner thereupon gave a statutory notice to the accused, who, having received it on August 4, 1989, did not pay the amounts covered by the two cheques even after lapse of 15 days and that, therefore, he filed a private complaint in the lower court for an offence under section 138 of the Negotiable Instruments Act which was forwarded by the Magistrate to the police for investigation under section 156(3) of the Code of Criminal Procedure, 1973. After completing investigation into the case, the police filed the chargesheet. Thereafter, the learned Magistrate took the case on file, under section 138 of the Negotiable Instruments Act, examined the accused under section 251, Criminal Procedure Code, and, thereafter, examined P.Ws-1 to 4, marked exhibits P-1 to P-11. Ultimately, after trial, the learned Magistrate acquitted the accused of the offence under section 138 of the Negotiable Instruments Act. Aggrieved thereby the present revision is filed by the de facto-complainant (P.W-1).
3. The main contention advanced by learned counsel for the petitioner, Mr. T. Bali Reddi, is that under section 142 of the Negotiable Instruments Act cognizance should have been taken on the private complaint filed by the petitioner itself but the private complaint filed by the petitioner should not have been forwarded to the police under section 156(3) of the Code of Criminal Procedure for investigation and that the procedure adopted by the trial court is illegal.
4. Under section 142 of the Negotiable Instruments Act, 1881, 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. That means, section 142(1) contemplates the filing of a private complaint only. This section does not give any indication to refer such a private complaint filed by the payee or the holder in due course to the police for investigation under section 156(3) of the Code of Criminal Procedure by the Magistrate before whom such a complaint is filed. In the case on hand the complaint filed by the petitioner was forwarded by the Magistrate to the police for investigation under section 156(3) of the Code of Criminal Procedure and after conducting investigation the police filed the charge-sheet filed by the police. It is a glaring defect in the procedure adopted by the Magistrate. In identical circumstances, in Y. Venkateswara Rao v. Mahee Handlooms (p.) Ltd. [1994] 79 Comp Cas 206 (AP) (infra) this court held as follows (at page 207) :
"As evidenced by section 142(a) of the Negotiable Instruments Act 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. In the present case, the case was taken cognizance of on a police complaint and, consequently, as rightly submitted by learned counsel for the petitioner, the complaint is not taken on file properly. In view of the provisions of section 142(a) of the Negotiable Instruments Act, the proceedings in C.C. No. 184 of 1991 on the file of VI Metropolitan Magistrate are quashed on and from referring the case by the learned Magistrate under section 156(3) of the Code and thereafter."
5. The complaint filed by the petitioner having been forwarded by the Magistrate to the police for investigation under section 156(3) and the police having filed the charge-sheet after investigation and the Magistrate taking cognizance on the police charge-sheet, it is a glaring defect in the procedure adopted by the learned Magistrate. When there is some glaring defect in the procedure or there is a manifest error on a point of law, the Supreme Court held in K. Chinnaswamy Reddy v. State of A.P., , as follows :
"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have though fit to appeal but this jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of section 439 (of the Code of the Criminal Procedure, 1898) forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding a conviction."
6. It was further held by the Supreme Court in the said decision as follows (at page 1794) :
"Two contingencies arise in such a case as to the nature of the order to be passed. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court for retrial ..........."
7. Following the above judgment of the Supreme Court I hereby set aside the impugned order of acquittal recorded by the learned Magistrate and remit the matter back to the trial court for re-trial afresh with a direction to treat the complaint filed by the petitioner herein as a private complaint and proceed further with the case in accordance with the provisions of Chapter XV of the Code of Criminal Procedure and dispose of the same on merits, afresh in accordance with law.
8. The criminal revision case is, therefore, allowed and remand is accordingly ordered.