Madras High Court
T. Vanamamalai vs T.D. Sundara Varadhan on 10 February, 1995
Equivalent citations: [1996]86COMPCAS188(MAD)
JUDGMENT Janarthanam, J.
1. The formal action had been resorted to, to quash the proceedings in C.C. No. 310 of 1992, an the file of the judicial Magistrate No. II. Poonamallee, initiated by the respondent-complainant against the petitioner-accused for the alleged offence under section 138 of the Negotiable Instruments Act, 1881 (Act No. XXVI of 1881 - as amended by Act 66 of 1988 - for short "the Act").
An alleged true copy of the complaint had been annexed in the typed set of papers and it revealed at the foot of it as below :
"Dated at Poonamallee this 23rd day of November, 1992."
An argument had been projected on the basis that if the said complaint had been filed on November 23, 1992, then in such case, the complaint must be construed to have been filed even before the cause of action arose.
(a) Under section 138 of the Act, a cheque has to be presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier.
(b) In case the cheque so presented to the bank is returned, anybody - the payee or the holder in due course of the, cheque, as the case may be has to make a demand for payment of the said amount of money, by giving a notice, in writing, to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
(c) If the, drawer of the said cheque fails to make the payment of the amount of the money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice, then the cause of action accrues for the initiation of proceedings against the drawer of such a cheque.
(d) The cause of action so accrued enures for a period of one month, pursuant to the salient provisions adumbrated under section 142(b) of the Act. Any application, filed into court beyond the said period shall not be taker cognizance of, as being barred by time. Therefore, the date of filing of the complaint, in prosecution under section 158 of the Act, assumed signal importance.
In the case on hand, apart from the alleged true copy of the complaint that had been annexed in the typed set of papers, Mr. V. Padmanaban, learned counsel appearing for the petitioner, also produced before this court a copy of the complaint served on the petitioner-accused before the court below. A perusal of the said complaint does not at all repeal any date seal of the writ being affixed on it. The only tangible material available, as relatable to the date of filing of the complaint is reflected as below "Dated at Poonamallee this November 23, 1992" as had been found mentioned in the true copy of the complaint annexed along with the typed set. This court entertaining the plausibility of the complaint not having been filed on the date of its draft and the same being subsequently filed cannot be ruled out of consideration, called for the remarks of the court below, by passing an order dated January 6, 1995, as below :
"In the case on hand, an argument that is projected is that the complaint had been filed even before the cause of action arose. A copy of complaint annexed in the typed set of papers reveals at the foot of it as below :
'Dated at Poonamallee this November 23, 1992'.
2. Copy of the complaint furnished to the accused had also been produced before this court and the same is also verbatim as the copy of the complaint as annexed in the typed set of papers.
3. The practice hitherto adopted and consistently followed in all criminal courts is that as and when any complaint with the requisite number of copies thereof is filed for service to the accused, in case the complaint is taken on file, the court affixes its seal on the original complaint as well as copies Intended for service on the accused and only such copies of the complaint are furnished to the accused on service of process to them. In following such a practice, there would be a clear indication about the date on which the complaint had been filed into court. The complaint may be drafted or written on a date different from the one filed in court and such a possibility cannot be ruled out of consideration.
4. In the case on hand, the draft of the complaint is dated November 23, 1992, and the question is whether the complaint so drafted had been filed into court on the same date, that is November 23, 1992. In the absence of the date seal on the copy of the complaint served upon the accused - now produced before the court, it is now not possible for this court to clinchingly state that the complaint had been filed before the court below on November 23, 1992, itself.
5. The notice in the instant case dated November 5, 1992, had been received by the accused on November 9, 1992. Fifteen days' time had been given to the accused to comply with the demand so made in the said notice from the date of receipt of the said notice. If the period of fifteen days is added to the date of receipt of the notice, namely, November 9, 1992, then the period would expire by November 24, 1992.
6. If the complaint, in the instant case, had been filed on November 23, 1992, it would tantamount to filing of the complaint even before the cause of action arose. In such a situation, the Registry is directed to call for remarks from the court below as to the procedure being adopted as respects the taking on file of the complaint with specific reference to the affixing of the seals on the original as well as copies to be furnished therefor. The Registry is further directed to verify from the court below as to the date on which the complaint, in the instant case, had been filed in court.
Post on 20-1-1995."
The court below submitted a report in its letter D. No. 242, dated January 12, 1995, as below :
"I submit that the procedure indicated in para. 3 of the order dated January 6, 1995 of the High Court in Crl. O.P. No. 7397 of 1994 is being adopted in respect of private complaints presented before this court.
2. I also submit that the perusal of the case records in C.C. NO. 310 of 1992, on the file of this court reveals that the private complaint of Thiru T. D. Sundaravarathan, dated November 23, 1992, was filed and received in this court on December 7, 1992, and that the original complaint and other enclosures available in the court bear the date seal of December 7, 1992. The sworn statement of the complaint was also recorded on December 7, 1992, and the complaint was taken on file as C.C. No. 310 of 1992, on December 7, 1992, itself. The case record also reveals that copy of the complaint was furnished to the accused on February 18, 1993.
3. I therefore, submit that the private complaint in this case was filed only on December 7, 1992, though the complaint was dated November 23, 1992."
From what has been stated in the report of the court below, as above, the entertainment or filing of the complaint on a date later than Its draft had come true, in the sense that the complaint in the case on hand, though drafted on November 23, 1992, had actually been filed into court on December 7, 1992. Along with enclosures. In such a state of affairs, to say that the complaint had been taken on file on November 23, 1992, and consequently, the cause of action for filing of the complaint not arising then cannot at all be acceded to and in that view of the matter, the present former action his to face dismal failure.
Whether the procedure hitherto followed for quite long in criminal courts, as respects the affixing of the seal of the court on the complaint as well as the requisite number of copies filed therefor to be served on the accused on the date of receipt of the complaint was followed was the query raised in paragraph 3 of the order dated January 6, 1995, and to the query so posed, the court below submitted its remarks In paragraph I stating that the procedure indicated in paragraph 3 of the order of this court, as stated above, had been followed in respect of private complaints presented before it. Those remarks, I personally feel, are nothing but a lip service in answering the query and the reason for stating so is that in the copy of the complaint served upon the accused - petitioner now produced before the court, there is no seal of the court below being affixed upon it. Though the court below failed in its duty in affixing the seal of the court on the copy of the complaint intended to be served upon the accused from the date of receipt of the complaint and if such failure gets the attention of this court attracted in future, I am rather constrained to state that the court below (presided over by Mr. T. Radhakrishnan) has to face not only the wrath of this court, as well as any other action that may be conceivable of taking against him.
I have perused the Manual of Instructions for the Guidance of A Magistrate in Tamil Nadu, published in 1993, after revising the Manual of Instructions for the Guidance of Magistrates in the then Madras State, which had been issued due to the efforts of Mr. Justice P. Rajagopalan, ICS and Mr. Justice P. Ramakrishnan, ICS. It does not at all contain anything as respects fixing of the seal of the court on the complaint filed, along with the requisite copies thereof in detailing the procedure in paragraph 3 on receipt of a complaint. The period of limitation, as had been provided for under section 142 of the Act has to be reckoned from the date of filing of the complaint and not from the date on which the cognizance of the offence is taken by the court before which complaint had been filed as is the case in the case of limitation, as provided for certain offences under Chapter XXXVI of the Code of Criminal Procedure, 1973 (Act II of 1974), consisting of seven sections, starting from sections 467 to 473. Day-in and day-out, innumerable complaints, as respects dishonour of cheques had been filed into court and such being the case, the importance of the date of filing or receipt of the complaint in the court assumes signal importance and, therefore, it is, it behoves upon the court, before which such complaints are filed to affix the date seal of the court on the complaint as well as copies filed thereof intended to be served upon the accused.
(a) The Criminal Rules of Practice (Madras), however, contains certain sanguine provisions to the filing of the complaints before the criminal court, with requisite number of copies to be served upon the accused persons complained against and allied matters.
(b) Rule 28 thereof prescribes :
"When the complaint is in writing, the complainant shall present th the complaint as many copies on plain paper of the complaint number of the accused persons complained against."
(c) Rule 111 provides for the methodology of the presentation of complaint. It provides, "All complaints, applications, etc., shall be presented to the states by a party in person or by his pleader."
This rule further prescribes, as had been stated in rule 28, that complainant shall present along with the complaint as many copies on plain paper of the complaint as the number of accused persons complained against.
(d) Rule 338 prescribes grant of uncertified copies and it states that no copies of, or extracts from, the record of any proceeding of any criminal court subordinate to the High Court shall be issued unless certified to be true by the proper officer of the court. This rule further states that it shall not apply to copies or extracts granted to prisoner in confinement under any order passed in such proceedings for the purpose of appeal or application for revision.
A scrutiny of the Criminal Rules of Practice had been made by me, with the able assistance tendered by learned counsel appearing on either side and such a scrutiny does not at all reveal anything, as relatable to the affixing of the seal on the complaint presented before the court, with requisite copies thereof intended to be served upon the accused, in case, process happened to be issued on taking of the complaint on file. But, nonetheless, as had been stated in paragraph 3 of my order dated January 6, 1995, all the criminal courts in the State of Tamil Nadu perhaps daunted by native intelligence had been consistently following the procedure of affixing the seals on all the complaints and other copies thereof and why so ? Even in respect of any document received in court being filed in day-to-day administration of this justice system, somehow or other, such a consistent practice hitherto followed appears to be not being followed with all seriousness and serenity in some courts as of now and the court, below, being one such court it behoves upon this court to direct the registry to issue a circular to all the criminal courts on this aspect of the matter, of course, after getting the seal of approval of My Lord, the Hon'ble Chief justice in the changed circumstances of innumerable complaints being filed in criminal courts, as respects the dishonour of the cheques, where in the question of limitation is very often agitated before the courts.
With the above observations, the former action (criminal original petition) is dismissed. Consequently, the latter action for stay (Criminal M.P.) is also dismissed.