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1996 DIGILAW 1196 (MAD)

V. Appa Rao v. Rajasekahar and Another

1996-11-29

N.ARUMUGHAM

body1996
Judgment : This revision is directed against the order passed by the learned XVIII Metropolitan Magistrate, Saidapet, Madras in Crl.M.P.No.2938 of 1996 in C.C.No.4869 of 1995, dated 28. 1996 declining to discharge the petitioner/ accused from the proceedings initiated under Sec.138 of the Negotiable Instruments Act by the respondent. 2. Basing upon the failure to pay the amount demanded in legal notice dated 8. 1995, given by the learned counsel for the respondent, since the cheque given by the petitioner in favour of the respondent for a sum of Rs.10,00,000 was bounded by his banker after banking negotiations, for insufficiency of funds, proceedings under Sec.138 of the Negotiable Instruments Act have not been initiated under Sub-sec.(C) of Sec.142(b) of the Negotiable Instruments Act, according to the petitioner before the trial Court and therefore, the complaint lodged by him is but of time and thereby, it has become incompetent to be sustained in law. On being resisted the same, learned trial Magistrate rejected the contentions of the petitioner on the ground that the proceedings under Sec.138 of the Negotiable Instruments Act, by the petitioner, were filed first before the XVII Metropolitan Magistrate, Madras and as he had refused to entertain the same for want of jurisdiction, it was represented before the XVIII Metropolitan Magistrate, Madras, who again declined to accept it and returned and on representation, again before the XVII Metropolitan Magistrate, it was returned for presentation before proper court, with the result, the Chief Metropolitan Magistrate was approached and directions were obtained for the presentation of the complaint before the XVIII Metropolitan Magistrate, and accordingly, the complaint was lodged on 29. 1995 and having accepted the said facts, the learned trial Magistrate rejected the petition for discharge by passing the impugned order. Aggrieved at this, the accused has filed this revision challenging the property and legality of the said order. 3. 1995 and having accepted the said facts, the learned trial Magistrate rejected the petition for discharge by passing the impugned order. Aggrieved at this, the accused has filed this revision challenging the property and legality of the said order. 3. It was the strenuous contention of Mr.Asokan, learned counsel for the petitioner that to say that the proceedings originally initiated before XVII Metropolitan Magistrate were returned by the XVII Metropolitan Magistrate on 20.9.1995, there is no support at all by any scrap of paper, and even so, the return made by the learned XVIII Metropolitan Magistrate on 20.9.1995 has not been affixed with Court seal and therefore, the petitioner never approached 18th Metropolitan Magistrate, but however, to get over the time of limitation, approached the learned Chief Metropolitan Magistrate on 29. 1995 and got an endorsement and thus made the complaint to appear as though filed within the time and therefore, the impugned order passed by the learned trial Magistrate is wholly incompetent and it lacks every legal sanctity. 4. Mr.C. Rajagopalan, learned counsel for the complaint/respondent, on the other hand, would submit that the return made by the learned XVIII Metropolitan Magistrate in his own handwriting with signature, though not supported by the court seal of that Court on 20.9.1995, the petition filed by the complainant subsequently before the learned Chief Metropolitan Magistrate on 29. 4. Mr.C. Rajagopalan, learned counsel for the complaint/respondent, on the other hand, would submit that the return made by the learned XVIII Metropolitan Magistrate in his own handwriting with signature, though not supported by the court seal of that Court on 20.9.1995, the petition filed by the complainant subsequently before the learned Chief Metropolitan Magistrate on 29. 1995 and the consequent order, would in all purview, go to show the fact that, the complaint was originally filed before the XVII Metropolitan Magistrate on 20.9.1995 itself and followed by its return, represented before the XVIII Metropolitan Magistrate and when returned by the XVIII Metropolitan Magistrate, it was again represented before the XVII Metropolitan Magistrate who returned it and finally, taking the matter to the learned Chief Metropolitan Magistrate by filing the petition to get the remedy of relief provided under Sec. 138 of the Negotiable Instruments Act, and rightly, at the behest of the order passed by the learned Chief Metropolitan Magistrate the proceedings were initiated before the XVIII Metropolitan Magistrate and after issuing process to the accused, charges were framed and the trial commenced and consequently, the witnesses on the side of the prosecution were almost over as examined and it was at this stage, a petition for discharge of the accused for want of jurisdiction was filed, but however, it was rejected by the learned trial Magistrate and therefore, everything was done within the time and the complaint has not been filed out of time as provided under Sec.142 of the Act the therefore, the learned counsel has justified the impugned order. 5. In this context, I have called for the original case records and perused the same. The original complaint, though claimed to have been filed before the XVII Metropolitan Magistrate for the reasons said to have been made in paragraph-6 of the complaint, there was nothing on record to show that the learned Magistrate has declined to accept it, nor returned it with any return endorsement or seal. The original complaint, though claimed to have been filed before the XVII Metropolitan Magistrate for the reasons said to have been made in paragraph-6 of the complaint, there was nothing on record to show that the learned Magistrate has declined to accept it, nor returned it with any return endorsement or seal. The absence of any endorsement, signature or the date seal by the learned XVII Metropolitan Magistrate was conceded by the Bar, but however, as stated by him, it appears that the said complaint had been represented before the XVIII Metropolitan Magistrate on the same day i.e., on 20.9.1995 which was also returned with the following endorsement: “As per para 6 of the complaint itself the cause of action is at T.Nagar. The complaint may be presented at proper Court having jurisdiction Time two weeks.” The original complaint thus bears the endorsement made by the XVIII Metropolitan Magistrate in his own handwriting with signature and date as 20.9.1995. It was represented that the following submissions, as evidenced from the endorsement, were made in the petition itself: “Submitted. Since the accused’s bank is located within the jurisdiction of this Hon’ble Court, the jurisdiction also pleaded specifically in paragraph 6. Hence, the complaint is presented before this Hon’ble Court.” 6. This endorsement shows that the complaint has been resubmitted before XVII Metropolitan Magistrate and according to the Bar, it was returned by the XVII Metropolitan Magistrate. The original complaint is having the cause title, "in the court of the XVII Metropolitan Magistrate, Saidapet." It is the common knowledge that when a private complaint is preferred before a particular Court with specific cause title, presenting the same before a different court without any correction is not at all possible. The original cause title of the complaint shall made available is XVII Metropolitan Magistrate’s Court. The original cause title made in the complaint in original and the endorsement made by the Bar on 29. 1995 would render all support to the plea made by the learned counsel appearing on behalf of the respondent. Of course, it is true that the endorsement made by the learned XVIII Metropolitan Magistrate in his own handwriting and signature does not appear to have been supported by any stamp seal of the Court. 1995 would render all support to the plea made by the learned counsel appearing on behalf of the respondent. Of course, it is true that the endorsement made by the learned XVIII Metropolitan Magistrate in his own handwriting and signature does not appear to have been supported by any stamp seal of the Court. It is merely a total irregularity which the Magistracy shall hereinafter avoid for any reason and scrupulously follow the procedure and rules which accepting or returning a complaint by affixing date seal or stamp seal. Because of the two bankers of the petitioner and the respondent situate in two different localities of two different courts having their own jurisdiction, the play made by the two courts, namely, 17th and 18th Metropolitan Magistrate’s courts had the occasion to drive the respondent to approach the learned Chief Metropolitan Magistrate by filing a petition under Sec. 19(3) of the Code of Criminal Procedure on 29. 1995 with the following contents: "The petitioner abovenamed begs to submit that a complaint under Sec.138 of the Negotiable Instruments Act was filed before learned XVII Metropolitan Magistrate on 20.9.1995. The learned Magistrate returned the same without making any endorsement. The same was presented before the learned XVIII Metropolitan Magistrate. The learned Magistrate returned it with an endorsement to present before the proper court. The same was represented before the learned XVII Metropolitan Magistrate on 9. 95. The learned Magistrate also returned it with an endorsement to present it before the proper forum. "The Banker of the complaint bank is within the jurisdiction of XVIII Metropolitan Magistrate (Bank of Trivangore, Mylapore branch). The accused Banker, Andhra Bank, T.Nagar, branch is within the jurisdiction of the XVII Metropolitan Magistrate. Both the courts have jurisdiction. But, both the courts refused to entertain the complaint. Hence, it is prayed that this Hon’ble Court may direct either one of the Courts to entertain the complaint and thus render justice. The accused Banker, Andhra Bank, T.Nagar, branch is within the jurisdiction of the XVII Metropolitan Magistrate. Both the courts have jurisdiction. But, both the courts refused to entertain the complaint. Hence, it is prayed that this Hon’ble Court may direct either one of the Courts to entertain the complaint and thus render justice. Dated at Madras this the 26th day of September, 1995." This petition, by its narration, would speak to the consequence of facts that happened, namely, the complaint, as it appears in original, was filed before XVII Metropolitan Magistrate, Madras and the same was returned which necessitated the same to be represented before the XVIII Metropolitan Magistrate, Madras and on return, again it was represented before the XVII Metropolitan Magistrate as evidenced from the endorsement made by the learned counsel for the complainant on the petition itself and the complaint was again returned which necessitated the respondent to approach the Chief Metropolitan Magistrate on 29. 1995. Consequently, the learned Chief Metropolitan Magistrate directed the complaint to be presented before the XVIII Metropolitan Magistrate, Madras on 29. 1995 and accordingly, it was done and the case was taken on file. 7. Having thus considered and perused the original case records, I find and am fully convinced to hold that there are enough materials and indications, that too in handwriting to show that originally complaint was filed before the XVII Metropolitan Magistrate on 20.9.1995, and on return, it was represented on 20.9.1995 before the XVIII Metropolitan Magistrate. Both the courts have jurisdiction concurrently in the instant case. But, for the reasoning of declining to take the complaint, which was filed within the time, on file by both the Courts on both the days the subsequent approach made by the respondent to get his remedy before the learned Chief Metropolitan Magistrate on 29. 1995 does not in any way oust him from taking the remedy of jurisdiction from proper Court before whom the case was presented already as contemplated under Sec. 142(b) of the Negotiable Instruments Act. It is thus seen that 15 days time was given in the legal notice of demand given by the respondent through his counsel on 8. 1995 and the complaint being filed originally on 20 or 29. It is thus seen that 15 days time was given in the legal notice of demand given by the respondent through his counsel on 8. 1995 and the complaint being filed originally on 20 or 29. 1995 before two proper courts having concurrent jurisdiction is clearly clothed with the limitation, even as confirmed by the learned Chief Metropolitan Magistrate by his specific order in the original complaint. 8. For the said reasonings and materials available with specific dates irrespective of the defence and the onus of proof with regard to the specific overt act of the respondent and the petitioner, in the facts of the case, I do not find any laches or defects or error or irregularity committed by the learned trial Magistrate and as such I am unable to accept the very contention made by the learned counsel appearing for the revision petitioner, with the result, the impugned order has to be confirmed and the trial has to be proceeded in accordance with law. 9. In the result, the revision fails and accordingly, it is dismissed. Consequently, the order passed by the learned XVIII Metropolitan Magistrate in Crl.M.P. No.2938 of 1996 in C.C. No.4869 of 1995 dated 28. 1995 is hereby confirmed Registry is directed to send the copy of this order with the entire case records immediately to the trial court under proper acknowledgment for proceeding with the trial further.