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2006 DIGILAW 641 (MAD)

B. N. Ravi v. M. Hari Om

2006-03-07

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- (Criminal Revision Case No.572 of 2003 filed under Sections 397 and 401 of Criminal Procedure Code against the Order dated 27.3.2003 and made in Crl.M.P.No.4882 of 2002 in C.C.No.280 of 2002 on the file of the Judicial Magistrate No.IV Court, and now Judicial Magistrate No.II Court, Vellore, C.C.No.65 of 2003.) (Criminal Revision Case No.573 of 2002 filed under Sections 397 and 401 of Criminal Procedure Code against the Order dated 27.3.2003 and made in Crl.M.P.No.4883 of 2002 in C.C.No.281 of 2002 on the file of the Judicial Magistrate No.IV Court, and now Judicial Magistrate No.II Court, Vellore, C.C.No.64 of 2003.) (Criminal Revision Case No.574 of 2002 filed under Sections 397 and 401 of Criminal Procedure Code against the Order dated 27.3.2003 and made in Crl.M.P.No.4884 of 2002 in C.C.No.282 of 2002 on the file of the Judicial Magistrate No.IV Court, and now Judicial Magistrate No.II Court, Vellore, C.C.No.66 of 2003.) (Criminal Revision Case No.575 of 2002 filed under Sections 397 and 401 of Criminal Procedure Code against the Order dated 27.3.2003 and made in Crl.M.P.No.4885 of 2002 in C.C.No.283 of 2002 on the file of the Judicial Magistrate No.IV Court, and now Judicial Magistrate No.II Court, Vellore, C.C.No.67 of 2003.) The Criminal Revision Case No.572 of 2003 is filed by the sole accused in C.C.Nos.65, 64, 66 and 67 of 2003 on the file of the Judicial Magistrate No.II Court, Vellore against the dismissal of Crl.M.P.Nos.4882 to 4885 of 2002 filed under Section 204 Cr.P.C. to recall the process issued against the accused in the said Calendar Cases. 2. The respondent/complainant in all the revisions, has filed private complaints, which were taken on file under Section 138 of Negotiable Instruments Act in C.C.Nos.280 to 283 of 2002 on the file of the Judicial Magistrate No.IV Court, Vellore and now renumbered as C.C.Nos.65, 64, 66 and 67 of 2003 on the file of the Judicial Magistrate No.II Court, Vellore, stating that the revision petitioner/accused borrowed a sum of Rs.2 lakhs from the respondent/complainant at Vellore on 9.2.2000 and executed promissory note in favour of the respondent/complainant agreeing to pay interest at 24% per annum. 3. 3. It is also stated in the complaint in C.C.No.280 of 2002 that the revision petitioner/accused issued two cheques bearing Nos.305485 and 305483 of Vijaya Bank, Vellore-4, for Rs.28,000/- and Rs.35,000/- on 14.2.2002 and 1.8.2002 respectively totalling Rs.63,000/- representing the part amount due to the complainant and when they were presented in the Bank of Andhra, Vellore-4, the same were returned with a memo stating “Account Closed”. 4. It is also stated in the complaint in C.C.No.281 of 2002 that the accused issued a cheque bearing No.305484 of Vijaya Bank, Vellore-4, for Rs.35,000/- on 1.8.2002 representing the part amount due to the complainant and when it was presented in the Bank of Andhra, Vellore-4, the same was returned with a memo stating “Account Closed”. 5. It is also stated in the complaint in C.C.No.282 of 2002 that the accused issued two cheques bearing Nos.0117166 and 0117193 of Vijaya Bank, Vellore-4, for Rs.35,000/- and Rs.35,000/- on 25.2.2002 and 7.3.2002 respectively totalling Rs.70,000/- representing the part amount due to the complainant and when they were presented in the Bank of Baroda, Vellore-4, the same were returned with a memo stating “Exceeds Arrangement”. 6. It is also stated in the complaint in C.C.No.283 of 2002 that the accused issued two cheques bearing Nos.0117164 and 0117163 of Vijaya Bank, Vellore-4, for Rs.35,000/- each on 4.4.2002 totalling Rs.70,000/- representing the part amount due to the complainant and when they were presented in the Bank of Baroda, Vellore-4, the same were returned with a memo stating “Exceeds Arrangement”. 7. Hence after causing statutory notice on 13.8.2002 and 9.8.2002, the complaints were filed immediately on 12.9.2002 before the Judicial Magistrate No.IV at Vellore against the accused and the same were taken on file in C.C.Nos.280 to 283 of 2002. 8. The revision petitioner/accused filed petitions under Section 204 of Criminal Procedure Code in Crl.M.P.Nos.4882 to 4885 of 2002 to recall the process issued in C.C.Nos.280 to 283 of 2002, in that already in April, 2000 the accused filed I.P.No.5 of 2000 under Sections 4, 6 and 10 of the Provisional Insolvency Act, 1920 to adjudge him as insolvent. 9. The petitions Crl.M.P.Nos.4882 to 4885 of 2002 were contested by filing counters that the complainant had no notice about the Insolvency Proceedings and even assuming, without admitting, if the accused is adjudicated as an insolvent then also it will not affect the proceedings under the Criminal Law. 10. 9. The petitions Crl.M.P.Nos.4882 to 4885 of 2002 were contested by filing counters that the complainant had no notice about the Insolvency Proceedings and even assuming, without admitting, if the accused is adjudicated as an insolvent then also it will not affect the proceedings under the Criminal Law. 10. Considering the said objection and relying on the decisions of this Court in B. Kannan – v. - B.C. Santhanam reported in 2000(1) M.W.N.(Criminal) DCC 19(Madras), and Mahar Banu - v – N. Justin reported in 2001(2) M.W.N. (Criminal) DCC (Madras) 66, in which it is clearly held by this Court that institution of Insolvency Petition under the Provincial Insolvency Act cannot be a bar for a complaint under Section 138 of Negotiable Instruments Act, dismissed the said petitions which are under challenge in these revisions. 11. Heard the learned counsel for the revision petitioner/accused and the learned counsel for the respondent in all the revisions. 12. The learned counsel for the revision petitioner/accused in all the revisions vehemently contended that as per Section 69(c) of the Provincial Insolvency Act, the revision petitioner/accused in all the revisions will be liable for punishment, if any amount is paid, as claimed in the Calendar Cases filed under Section 138 of Negotiable Instruments Act, subject matter of these revisions. Further, it is argued that the Calendar Cases filed under Section 138 of Negotiable Instruments Act itself are not maintainable. 13. It is admitted by the learned counsel that insolvency proceedings initiated in I.P.No.5 of 2000 are still pending and the revision petitioner/accused has not been adjudged as an insolvent and that the respondent/complainant filed the complaints in C.C.Nos.280 to 283 of 2002 in April, 2002. 13. It is admitted by the learned counsel that insolvency proceedings initiated in I.P.No.5 of 2000 are still pending and the revision petitioner/accused has not been adjudged as an insolvent and that the respondent/complainant filed the complaints in C.C.Nos.280 to 283 of 2002 in April, 2002. Section 29 of the Provincial Insolvency Act reads thus:- “Any Court in which a suit or other proceeding is pending against a debtor shall, on proof that an order of adjudication has been made against him under this Act, either stay the proceeding, or allow it to continue on such terms as such Court may impose.” Inasmuch as the revision petitioner/accused has not been adjudged as an insolvent within the meaning of the Provincial Insolvency Act, there is nothing to stay of the proceedings in the Calendar Cases, subject matter of these revisions and merely on the ground I.P.No.5 of 2000 has been filed, it cannot be claimed that the process issued to the accused in this cases have to be recalled. The revision petitioner/accused has not made out any case either to recall the process or to stay of the proceedings in view of the fact, he has not been declared or adjudged as insolvent within the meaning of Section 29 of the Provincial Insolvency Act. The trial Court considering all these facts rightly dismissed the petitions. The orders do not call for any interference. 14. In the result, all these Criminal Revision Cases are dismissed. The orders dated 27.3.2003 and made in Crl.M.P.Nos.4882 to 4885 of 2002 in C.C.Nos.280 to 283 on the file of the Judicial Magistrate No.IV, Vellore(now in C.C.Nos.65, 64, 66, and 67 of 2003 on the file of the Judicial Magistrate No.II, Vellore) are confirmed. Consequently, the interim stay granted in Crl.M.P.Nos.3534 to 3537 of 2003 are vacated and Crl.M.P.Nos.3534 to 3537 of 2003 are also dismissed.