Madras High Court
S. Madan Kumar vs K. Arjunan on 1 February, 2006
ORDER M. Jeyapaul, J.
1. The petition is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in C.C. No. 1125 of 2003 on the file of the learned Judicial Magistrate, Tambaram.
2. The petitioner is the accused in a case under Section 138 of the Negotiable Instruments Act. He filed a petition on an earlier occasion under Section 482 of the Code of Criminal Procedure and the same was dismissed on the ground that the case was already taken up for trial by the learned Judicial Magistrate, Tambaram. The petitioner was given liberty to raise all the factual contentions before the learned Judicial Magistrate, Tambaram during the course of trial.
3. Now this petition is filed for quashing the proceedings on the ground that the complaint does not whisper about the non payment of the amount demanded by the complainant from the accused through his statutory notice.
4. Learned counsel for the petitioner would submit that the second petition under Section 482 of the Code of Criminal Procedure raising the legal plea is maintainable after the first petition under Section 482 of the Code of Criminal Procedure filed on factual foundation was dismissed.
5. It is his further submission that as the complaint lacks required pleadings as contemplated under proviso (c) to Section 138 of the Negotiable Instruments Act, the criminal proceedings as against the petitioner will have to be quashed.
6. In the authority in Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh and Ors. the Hon'ble Supreme Court has held as follows:-
Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. It was for this reason that, despite the earlier order dated 12th December, 1968, the High Court proceeded to consider the subsequent application of respondents Nos. 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against respondents Nos. 1 and 2.
7. In the aforesaid case, the accused invoked the inherent jurisdiction of the High Court to quash the criminal proceedings at the first instance and the High Court rejected it on the ground that the evidence was yet to be led and that it was not desirable to interfere with the proceedings at that stage. But it is seen that thereafter in the said case, the criminal proceedings dragged on for a period of about 1-1/2 years without any progress at all and it was in those circumstances the accused made a fresh petition for the second time invoking the inherent jurisdiction of the High Court. It was under those circumstances, the Hon'ble Supreme Court laid down that the second petition was maintainable under Section 451(A) (presently Section 482) of the Code of Criminal Procedure.
8. Further in the aforesaid case, the facts and circumstances that arose at the time of the subsequent petition moved by the accused were totally different from what they were at the time when the earlier petition was filed by the accused.
9. In this case, the accused was aware of the alleged lack of pleadings in the complaint even at the time of receiving the summons from the Court on taking the case on file. At least when the accused filed a petition earlier under Section 482 of the Code of Criminal Procedure, the alleged non observance of the legal requirement under Section 138 of the Negotiable Instruments Act in the complaint was known to him. He had conveniently omitted to take such a legal plea when he filed the petition earlier under Section 482 of the Code of Criminal Procedure.
10. Learned counsel for the petitioner submitted an authority of the Delhi High Court in A.M. Berry v. Ravi Arora 1992 CRI. L.J. 1327 wherein it has been observed as follows:-
Regarding the maintainability of the petition, it is an admitted fact that the earlier petitioner was dismissed in limine on 1.5.1987, even without calling for the record, by passing only one word order "dismissed". At that time notice under Section 251 mentioning the particulars of the offence of which he was accused was not even served upon him. It has been laid down by the Supreme Court in Superintendent and Remembrancer West Bengal v. Mohan Singh that Section 561-A Cr.P.C. (now Section 482) preserves inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court to secure the ends of justice and the High Court must, therefore, exercise its inherent power having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. Rejection of earlier application for quashing of criminal proceedings on the ground of absence of prima facie case is no bar for filing another application on the same ground as it does not amount to review or revision of the earlier order.
11. In the aforesaid case, it appears that the earlier petition filed under Section 482 of the Code of Criminal Procedure had been dismissed with one word order "Dismissed". Further, notice under Section 251 of the Code of Criminal Procedure giving details of the particulars of the offence was not even served on the accused. The judgment of the Hon'ble Supreme Court of India cited by this Court supra, has been referred to in the judgment of the Delhi High Court also.
12. The Delhi High Court considering the change of circumstances and the one word order passed in the earlier petition chose to entertain the subsequent petition, seeking quashment of the criminal proceedings.
13. A person, who invokes the provision under Section 482 of the Code of Criminal Procedure should honestly come before the Court submitting all the pleas available to him at that point of time. He is not supposed to approach the Court with instalment pleas seeking remedy from the Court. There may be change of circumstances during the course of criminal proceedings which would give scope for the person aggrieved to knock at the inherent jurisdiction of this Court, but when he is posted with all the facts and circumstances of a case, he cannot withhold part of it for the purpose of filing yet another petition seeking the very same relief.
14. In this case, the petitioner who had already entered on trial filed the second petition invoking the provision under Section 482 of the Code of Criminal Procedure without any change of circumstances. If such petitions are entertained, there will be no end for the litigations and the parties will definitely start misusing the process of law. In view of the above, it is held that the second petition filed under Section 482 of the Code of Criminal Procedure putting forth a legal plea, when the factual plea projected in the earlier petition under Section 482 of the Code of Criminal Procedure was rejected, is found not sustainable.
15. Coming to the merit of the case, it is found that the defacto complainant, though not stated in the complaint that the accused failed to make payment of the cheque amount to the defacto complainant, has stated in so many words in the complaint to carry the meaning that the accused failed to settle the amount after the dishonour of the cheque.
16. The relevant portion of the complaint avers as follows:-
The complainant further submits that the complainant has issued lawyer notice on 17.11.2003 through Registered Post informing the accused that the cheques issued by the accused are dishonoured and to settle the amount within 30 days, but the accused did not sent any reply notice and the acknowledgement card also returned.
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The complainant also submit that this Hon'ble Court may be pleased to recover the amount of Rs. 3,00,000/- under Section 357 Cr.P.C.
17. It has been conveyed by the complainant through his complaint that he issued a statutory notice immediately after the cheques were dishonoured, but the accused failed to give any reply. The complainant has prayed for recovery of the amount of Rs. 3 lakhs from the accused.
18. Learned counsel for the petitioner submitted an authority of this Court in K. Devaraj v. T.K. Koya 2003 (1) MWN (Cr.) DCC (Mad.) 7, wherein this Court has observed as follows:-
It is mandatory on the part of the complainant to say in clear terms whether the accused had paid the amount, or gave any other explanation withholding the payment or any other excuses. But in the present complaint there is absolutely no whisper at all in relation to that effect.
19. That was a case where there was no whisper about the response of the accused to the notice issued by the complainant. But here in this case, as already pointed out, the nil response from the accused to settle the amount within the stipulated period was clearly stated in the complaint. Further the complainant has prayed the Court to recover the amount of Rs. 3 lakhs under Section 357 of the Code of Criminal Procedure.
20. The text of the mere complaint alone cannot be taken into account to conclude whether the requirements under Section 138 of the Negotiable Instruments Act were complied with. The sworn statement also will have to be looked into by this Court to arrive at a conclusion whether there is compliance of the legal requirement under Section 138 of the Negotiable Instruments Act. It is therefore held that the second petition under Section 482 of the Code of Criminal Procedure for the aforesaid reasons is not maintainable and that the legal plea taken by the petitioner is also not sustainable.
21. In the result, the criminal original petition stands dismissed and the learned Judicial Magistrate, Tambaram is directed to dispose of the case in C.C. No. 1125 of 2003 within three months from the date of receipt of a copy of this order. Consequently, connected criminal miscellaneous petitions also stand dismissed.