Andhra HC (Pre-Telangana)
Chittoor District Co-Operative ... vs Sri Jyothi Trading Co. And Anr. on 25 July, 1997
Equivalent citations: 1997(2)ALD(CRI)282, [1999]96COMPCAS609(AP)
Author: T. Ranga Rao
Bench: T. Ranga Rao
JUDGMENT T. Ranga Rao, J.
1. This petition is filed under section 482 of the Criminal Procedure Code, 1973, to quash the orders dated January 4, 1997, in Criminal Revision Petition No. 5 of 1995, on the file of the Sessions Judge, Chittoor.
2. The facts giving rise to the filing of this petition are, briefly, as follows :
The first respondent filed a complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act, 1881, alleging that the complainant is doing business in the name and style of Sri Jyothi Trading Company, dealing in pesticides and chemicals fertilisers and the accused has been carrying on dealings with the complainant firm by purchasing chemical fertilisers on credit system and has been found due a sum of Rs. 2,28,600 and then the accused issued ten cheques for Rs. 20,000 each and one cheque for Rs. 200 on June 7, 1993, to be drawn on Central Bank Limited, Chittoor, and also issued two more cheques on June 12, 1993, one for Rs. 20,000 and another for Rs. 8,600. The cheques were presented in Canara Bank, Chittoor, finally on November 20, 1993, for collection and the cheques were returned except the cheque for Rs. 200, with an endorsement "no funds in the accounts".
3. Then the complainant-first respondent got issued notice on November 30, 1993, and filed the complaint on November 30, 1993.
4. The petitioner filed, a petition under section 258 of the Criminal Procedure Code, 1973, before the trial court requesting to discharge him and the said petition was allowed on December 30, 1994.
5. Aggrieved by the said'order, the first respondent filed a revision in Criminal Revision Petition No. 5 of 1995, before the Sessions judge and the learned Sessions judge, allowed the revision on January 4, 1997, setting aside the order of the, learned magistrate. Aggrieved by the said order, the petitioner filed this petition.
6. Learned counsel for the petitioner submitted that the notice was issued on November 30, 1993, and the complaint was filed on the same day, i.e., on November 30, 1993, without giving fifteen days time to pay the amount as contemplated under section 138 of the Negotiable Instruments Act and hence, the complaint is premature and liable to be dismissed as not maintainable and the learned magistrate has rightly discharged the petitioner-accused, but the learned Sessions Judge without appreciating the material on record erroneously allowed the revision setting aside the order of the learned magistrate. But learned counsel for the respondent submitted that the petitioner filed a petition under section 482 of the Criminal Procedure Code, to quash the orders of the learned Sessions Judge in Criminal Revision Petition No. 5 of 1995, and in fact, he ought to have filed a revision against the orders of the learned Sessions-Judge and hence, the petition is not maintainable under section 482 of the Criminal Procedure Code . He further submitted that the petitioner is not entitled to seek discharge under section 258 of the Criminal Procedure Code and the learned Sessions judge has rightly held the same and hence, the petitioner is not entitled to any relief in this petition.
7. It is true that the petitioner is not entitled to seek discharge under section 258 of the Criminal Procedure Code in this case and the learned Sessions Judge has rightly held the same. It is relevant to mention that if the petition is filed seeking to discharge quoting a wrong section of law, if the material on record discloses that the complaint is not maintainable, the court is perfectly justified in discharging the accused and the petition cannot be dismissed on the ground that a wrong provision of law is mentioned. The Supreme Court in a decision K. M. Mathew v. State of Kerala, , has held that even in the absence of any specific provision to drop the proceedings or rescind the process, the magistrate is entitled to consider the objections raised by the accused after their appearance and drop the proceedings if there is no sufficient material on record to proceed against the said accused persons. In the above decision, their Lordships observed as under (headnote) :
"When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.
It is open to the accused to plead before the magistrate that the process against him ought not to have been issued. The magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be, tried. It is his judicial discretion. No specific provision is required for the magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused ..."
8. Therefore, it cannot be said that the petitioner is not entitled to the relief by quoting a wrong provision of law, if he is otherwise entitled.
9. The petitioner issued cheques in favour of the complainant on June 7, 1993, and they were presented for realisation in Canara Bank, Chittoor, and they were returned back with an endorsement "no funds in the accounts" and notice was issued on November 30, 1993, and the complaint was also filed on November 30, 1993. The averments of the complaint filed by the respondent clearly show that the notice was issued on November 30, 1993, to the petitioner informing the dishonour of the cheque and demanding him to pay the amount and the complaint was filed on November 30, 1993. The petitioner filed a petition in Crl. M.P. No. 586 of 1994, under section 258 of the Criminal Procedure Code to discharge him and the learned Magistrate has rightly allowed the petition observing that the respondent failed to comply with the mandatory provision of section 138 of the Act and the learned Sessions Judge set aside the said orders in Criminal Revision Petition No. 5 of 1995, and further observed in para. 14 of the judgment "that the trial court erred in demanding the complainant to produce evidence of issue of notice within 15 days from the date of dishonouring of cheques. There is enough evidence to show the conduct of the accused that he had the notice of the dishonour of cheques. If really the complainant has failed to show evidence, the accused can be acquitted after recording the evidence". It is clear from the above observation of the learned Sessions Judge that he failed to notice that the drawer is entitled to pay the cheque amount within 15 days from the date of receipt of the notice of dishonour of the cheque and this is a condition precedent for filing the complaint and the said observation of the learned Sessions judge is unsustainable. Thus, it is clear that the petitioner is entitled to pay the amount within fifteen days from the date of receipt of notice as provided under clause (e) of section 138 of the Act. The cause of action for filing the complaint arises only if the petitioner failed to pay the said amount within fifteen days from the date of receipt of notice and in this case, the complaint was filed without giving fifteen days time, as provided under section 138 of the Act and hence, no cause of action arose for filing the complaint and the complaint is premature and not maintainable. My view in this aspect is fortified by the judgment of the Division Bench of this court in H. Venkata Sivaram Prasad v. Rajeswari Constructions [1996] 3 ALD 1; [1998] 94 Comp Cas 296. Therefore, in the light of the foregoing discussion, I have no hesitation to hold that the complaint is premature and not maintainable.
10. The other contention raised by learned counsel for the respondent is that the petitioner filed, a petition under section 482 of the Criminal Procedure Code without filing a revision as provided under section 397(2) of the Criminal Procedure Code .
11. But learned counsel for the petitioner submitted that a second revision is not maintainable under section 397(3) of the Criminal Procedure Code, and, therefore, he filed a petition under section 482 of the Criminal Procedure Code .
12. It is a settled principle of law that inherent powers under section 482 of the Criminal Procedure Code can be invoked to prevent abuse of the process of the court or to secure ends of justice. In this case, admittedly, no cause of action arose for filing the complaint against the petitioner for an offence under section 138 of the Act on November 30, 1993, and in order to secure the ends of justice, I am of the view that this court can exercise inherent powers under section 482 of the Criminal Procedure Code to quash the impugned order as well as the proceedings in C.C. No. 408 of 1993, on the file of the Vth Addl. Munsif Magistrate, Chittoor, and I am unable to accept the contention of learned counsel for the respondent.
13. In the light of the foregoing discussion, it emerges that the complaint is premature and is not maintainable and the proceedings in C.C. No. 408 of 1993, on the file of Vth Addl. Munsif Magistrate, Chittoor, are liable to be quashed and are accordingly quashed.
14. In the result, the petition is allowed and the proceedings in C.C. No. 408 of 1993, on the file of the Vth Addl. Munsif Magistrate, Chittoor, are quashed.