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1993 DIGILAW 283 (KER)

Iqbal v. Uthaman

1993-06-18

K.T.THOMAS

body1993
Judgment :- The petitioner is the Managing Director of a public limited company. He is being prosecuted for the offence under S.138 of the Negotiable Instruments Act, 1881 (for short the 'Act') on the allegations, inter alia, that he issued a cheque in favour of the complainant (first respondent herein) which was dishonoured by the drawee bank as the drawer did not have necessary amount in his account, and that a notice was issued to the petitioner to which no reply was even sent. 2. As the magistrate before whom the complaint was filed cognizance of the offence and issued process against the petitioner, he filed this petition under S.482 of the Code of Criminal Procedure (for short the 'Code') for quashing the complaint. 3. Three valid points have been raised by the learned counsel for the petitioner in support of his contention that the complaint is liable to be quashed. They are: (1) the offence was committed by the company and not the petitioner; (2) prosecution of the petitioner without the company being made an accused is not sustainable; and (3) even if prosecution can be launched against the petitioner the present complaint is devoid of necessary averments to constitute the offence under S. I38 of the Act. 4. Regarding the first contention, it has to be pointed out that the complaint proceeds on the premises that the cheque was issued by the petitioner. Hence it is not proper to quash the complaint at the initial stage by accepting the contention that petitioner has not drawn the cheque. The second contention cannot be upheld in view of the decisions of the court in Crl.M.C.I29/93 dated 9-6-93 which repelled a similar contention holding that when the offence 'was committed by a company, cither the company alone or the person in charge of the business of the company alone, or both of them together, can be prosecuted for the offence under S. I38 of the Act. In support of the said view this Court relied on the Supreme Court decision in Sheonuan Agarwal v. State of M.P. (AIR (1984) 4 SCC 352). It was the third contention which was argued in detail before me. It was raised on the assumption that the complaint docs not reveal that the petitioner failed to make payment within fifteen days of receipt of the notice. It was the third contention which was argued in detail before me. It was raised on the assumption that the complaint docs not reveal that the petitioner failed to make payment within fifteen days of receipt of the notice. No doubt, offence under S.138 of the A ct is completed only when there is failure to make payment of the amount of money to the payee within fifteen days of the receipt of notice. What is stated in para.7 of the complaint is the following: "Complainant has issued notice on 4-6-1991 to the accused through his Advocate intimating that the cheque has been dishonoured and for return of the amount with interest. The accused had received the notice on 7-6-91 but he has not cared to sent any reply also". 6. It is true that the complaint docs not contain in so m any words that the petitioner did not make payment of the amount of money after receipt of notice. Even so, one can reasonably make out from the complaint that the complaint was filed as the petitioner did not make any payment or sent any reply to the notice. But, according to the learned counsel, the Court cannot read anything like that into the complaint, so long as the complaint did not expressly contain such an averment. 7. Learned counsel laid emphasis to S.142(a) of the Act which says that "notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974) no court shall take cognizance of any offence punishable under S.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". The argument is that since the legislature imposed a prohibition against taking cognizance unless certain conditions arc satisfied and one such condition being that there must be "a complaint in writing"-it means that the complaint should contain all the necessary fact to make out the offence,. The argument appears to be that all the elements of the offence must be categorised in express terms in the com plaint. The argument appears to be that all the elements of the offence must be categorised in express terms in the com plaint. For further support of the contention learned counsel invited my attention to a recent decision rendered by Manoharan, J. in Ashok v. Vasudevan Moosad (1993 (1) KLT 671) in which the complaint was dismissed for want of allegation that the cheque was bounced for want of sufficient funds in the account of the drawer. 8. I have no doubt that when there is no case for the complainant that dishonour of the cheque was cither because of insufficiency of amount in his account or that the amount covered by the cheque exceeded the amount arranged to be paid from that account, then no offence is made out and the complaint which is bereft of such basic allegation is liable to be dismissed. But the question here is different. Is it imperative that all the ingredients of the offence as such should be specifically and expressly slated in the complaint? Is it not sufficient that the court could make out such ingredients from the body of the complaint and the papers accompanying it? 9. In Delhi Muinicipality v. Ram Krishan (AIR 1983 SC 67) Fazal All, J. has observed that "It is therefore manifestly clear that proceedings against an accused in the initial stage can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constitu cd. In other words, the test is that taking the allegations and the complaint as they arc without adding or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise Of its powers under S.1482 of the present Code. In Madhavrao v. Sambhajirao (AIR 1988 SC 709) the Supreme Court observed that "legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations made would prima facie establish the offence". Shri P. Vijaya Bhanu, learned counsel for the petitioner cited the above decisions to bolster up his contention that in the absence of averment in the complaint that petitioner failed to make payment of the amount of money the court cannot read anything into it. 10. Shri P. Vijaya Bhanu, learned counsel for the petitioner cited the above decisions to bolster up his contention that in the absence of averment in the complaint that petitioner failed to make payment of the amount of money the court cannot read anything into it. 10. Section 2(d) of the Code defines complaint as "an allegation made orally or in writing to a magistrate with a view to his taking action under this Code some person, whether known or unknown has committed an offence but docs not include a police report". Of course, an oral complaint is not useful as for the offence under S.138 of the Act, since S.142 of the Act forbids the court from taking cognizance of the offence except upon a written complaint. S.190 of the Code empowers a magistrate to take cognizance of an offence upon receiving a complaint of facts which constitute such offence. 11. A combined reading of relevant provisions would amplify the position that if the facts set out in a complaint would constitute the offence alleged to have been committed by some person, the magistrate has power to take cognizance of the offence under S.138 of the Act. It must be borne in mind that no form is prescribed for drafting a complaint. A meticulous scrutiny of the complaint may not be warranted at the initial stage to ascertain whether all the elements of the offence have been expressly categorised therein. It is enough that a pragmatic assessment is made after perusing the complaint to decide whether the complaint discloses the offence under S.138 of the Act. If the complaint is prepared by a layman one cannot expect skilful draftsmanship being reflected therein. It may be inartistically worded or clumsily prepared. Yet it may cointain the allegations from which a magistrate can see the offence disclosed. Dismissing such complaint on the premise that elements of the offence have not been expressly categorised in the complaint may result in miscarriage of justice. Hence the court has a duty to peruse the complaint with a pragmatic perception. 12. Speaking for a division bench of this court Varadaraja lycngar, J. in Kunju Moideen v. Kandan (AIR 1959 Kcr.16) has pointed out that "it is nowhere insisted that the complainant must categorize the elements of the offence sought to be charged against the accused". Hidayattullah, CJ. 12. Speaking for a division bench of this court Varadaraja lycngar, J. in Kunju Moideen v. Kandan (AIR 1959 Kcr.16) has pointed out that "it is nowhere insisted that the complainant must categorize the elements of the offence sought to be charged against the accused". Hidayattullah, CJ. in Bhimappa v. Laxman (AIR 1970 SC 1153) has observed that no form is prescribed which the complaint must take. "It may only be said that there must be an allegation which prima facie discloses the commission of an offence from the necessary facts for the magistrate to take action". 13. When the complaint in the present case is read and understood from the above angle, one can discern therefrom with reasonable accuracy that the complaint was filed as the petitioner failed to make payment of the money even after receipt of notice. For the aforesaid reasons I am not inclined to quash the complaint. Crl. M.C is accordingly dismissed.