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1999 DIGILAW 920 (MAD)

Abdul Khutoos v. Ganesh and Coy Oil Mills

1999-09-04

KARPAGAVINAYAGAM

body1999
Judgment : 1. This is an application for quashing the complaint under S.138 of the Negotiable Instruments Act, 1881, against the petitioner by the complainant/respondent herein. 2. According to the complainant, the petitioner/accused in discharge of the liability, issued two cheques one dated September 29, 1995, for Rs. 25,703 and another dated October 4, 1995, for a sum of Rs. 26,078 in favour of the complainant and the same were dishonoured on presentation on March 13, 1996. 3. After issue of statutory notice, since no payment of the cheque amount was made, the complainant/respondent filed a complaint against the petitioner on April 25, 1996, for the offence under S.138 of the Negotiable Instruments Act. 4. When the complaint was presented, the learned Judicial Magistrate, Gudiyatham, found that there was no signature by the complainant in the said complaint. So on the same date, it was returned with an endorsement that the petitioners signature is not obtained in the complaint. 5. The complaint which was returned on April 25, 1996, was represented on May 15, 1996. On the same date a sworn statement was taken by the learned Judicial Magistrate from the complainant. On the basis of the statement, the case was taken on file for the offence under S.138 of the Negotiable Instruments Act in C. C. No. 110 of 1984. 6. On service of summons issued by the court, the petitioner/accused appeared before the learned Judicial Magistrate and received the copies. On coming to know that the complaint was presented without the signature of the complainant on April 25, 1996, and thereafter, it was represented with the signature of the complainant on May 15, 1996, the petitioner has filed this application to quash the proceedings mainly on the ground that cognizance taken in this case is an invalid one, in view of the fact that the complaint was entertained beyond the period of limitation as contemplated under S.142 of the Negotiable Instruments Act. 7. Mr. K. A. Md. 7. Mr. K. A. Md. Mustafa, counsel for the petitioner, to substantiate the ground for quashing, would elaborately submit by producing the copy of the complaint in which the signature of the complainant was not put and the copy of endorsement made by the magistrate for returning the same and the copy of the sworn statement recorded from the complainant on May 15, 1996, on the representation, that the complaint ought to have been presented within one month from the date of commencement of the cause of action, viz.,the receipt of notice, whereas, in the instant case, instead of filing the complaint on or before May 6, 1996. the signature of the complainant was obtained only on May 15, 1996, and then the complaint was filed and that, therefore, the proceedings initiated in pursuance of the invalid complaint are liable to be quashed. .8. On the other hand, Mr. Amizhoho would contend that though this complaint was originally presented without the signature of the complainant on April 25, 1996, the mistake had been pointed out by the learned Judicial Magistrate and complaint was represented on May 15, 1996, and only thereafter, cognizance was taken after recording the sworn statement on the basis of the valid representation and as such, the cognizance must be construed to be a valid one and the proceedings must be allowed to be proceeded with against the petitioner. In support of his contention, he would rely upon the decision in Mazumdar (G. K.) v. Mohmad Kasatu Mirza [1967] AIR 1967 Guj 15 , wherein it has been held, while dealing with a case under the Prevention of Food Adulteration Act, that the complaint by the Food Inspector even without the signature of the Food Inspector can be taken cognizance of. 9. I have heard and I have given my anxious consideration to the respective contentions urged on either side. 10. At the outset, I shall mention that the observation made by the Gujarat High Court in Mazumdar (G. K.) v. Mohmad Kasam Mirza (1967 AIR 1967 Guj 15 ) would not apply to this case since the question of period of limitation is not the issue in that case. The incidental reference made in that case would not be of any use for the respondent/complainant to establish that the complaint need not be filed with the signature of the complainant to make a valid presentation. 11. The incidental reference made in that case would not be of any use for the respondent/complainant to establish that the complaint need not be filed with the signature of the complainant to make a valid presentation. 11. In the instant case, admittedly, when it was returned on the ground that the signature of the complainant was not obtained, counsel for the respondent received the papers, rectified the mistake by obtaining the signature of the complaint and represented on May 15, 1996. 12. It is not the case of the respondent, at that point of time, that the presentation of the complaint, even without the signature of the complainant was a valid presentation and that, therefore, the learned magistrate should have entertained the complaint and asked the complainant to make a sworn statement. So, the citation relied upon by the respondent would not, in anyway, help him in establishing the fact that the complaint under S.138 of the Negotiable Instruments Act need not contain the signature of the complainant. .13. In this context, the definition of "complaint" provided under S.2(d) of the Criminal Procedure Code, 1973, is quite relevant. S.2(d) states : "Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report". 14. The reading of the above section would make it clear that the complaint could be presented by the complainant before the court either through oral statement or written statement. For making an oral statement there is no difficulty in coming to the conclusion that the complainant must be present before the magistrate. Similarly, for making a written statement that should be signed by the complainant and it should satisfy the requirements in S.2(d) of the Criminal Procedure Code. 115. Moreover, S.142 of the Negotiable Instruments Act, defines cognizance of an offence. Similarly, for making a written statement that should be signed by the complainant and it should satisfy the requirements in S.2(d) of the Criminal Procedure Code. 115. Moreover, S.142 of the Negotiable Instruments Act, defines cognizance of an offence. S.142 of the Negotiable Instruments Act states : "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -- .(a) 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 ; .(b) such complaint is made within one month of the date on which the cause of action arises under clause.(c) of the proviso to S.138 ;" 16. A reading of S.142 would clearly reveal that the complaint must be in writing made by the payee. That means, the complainant has to put his signature in his written complaint being made before the court. 17. Moreover, S.142(b) would provide such complaint must be made within one month of the date on which the cause of action arises under Clause.(c) of the proviso to S.138. 18. As admitted by counsel for both the parties, the cause of action arose on April 6, 1996. So, the complaint signed by the complainant must have been made within one month from the date of commencement of the cause of action, namely, April 6, 1996. In the instant case, the complaint with the signature of the complainant was presented only on May 15, 1996. Therefore, the requirements in S.2(d) of the Criminal Procedure Code and S.142 of the Negotiable Instruments Act have not been satisfied. 19. I am, therefore, of the view that the complaint which was earlier presented on April 25, 1996, cannot be taken to have been properly presented and, therefore, it shall be taken that the complaint was not presented within time. Of course, there is no difficulty in coming to the conclusion that the complaint represented on May 15, 1996, would satisfy the requirements of the complaint. It may be a proper complaint validly presented, since it contains signature, but the same was not filed within the period of limitation. Therefore, the complaint in question which has not been made, in time is liable to be set aside. 20. It may be a proper complaint validly presented, since it contains signature, but the same was not filed within the period of limitation. Therefore, the complaint in question which has not been made, in time is liable to be set aside. 20. With the above observations, the proceedings are liable to be quashed and accordingly, the same are quashed and the petition is allowed.