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2008 DIGILAW 285 (KAR)

Patchiammal v. K. C. Sriramalu

2008-06-12

K.RAMANNA

body2008
Judgment : Common Judgment: Both these appeals arise out of the judgment and order of acquittal passed by the XIV ACMM, Mayo Hall Unit, Bangalore in C.C. No.26130 of 2001 and C.C. No.26134 of 2001 respectively whereby the Court below acquitted the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 mainly on the ground that the complaint filed is a premature one. Therefore, aggrieved by the order of acquittal, the appellant has come up with these two appeals. The respondent in both the cases is one and the same. 2. The case of the appellant in Cri. A. No. 887 of 2005 is that the respondent herein borrowed a sum of Rs. 1,00,000/- during October 1999 with assurance to repay the same. For repayment of the said amount, the respondent had issued two post-dated cheques, each for Rs. 50,000/-, dated 8-12-1999 and 17-12-1999 bearing Nos. 503537 and 503538, drawn on State Bank of India, Banasavadi Branch, Bangalore. When both the cheques were presented for encashment, they were returned through his banker with an endorsement `insufficient funds' on 24-4-2000. It is the further case of the appellant that immediately after dishonour of the cheques, he contacted the respondent. In turn the respondent-accused informed him that he will settle the said loan amount on or before 30-4-2000. Since he has not settled the amount covered under the cheque, legal notice dated 4-5-2000 came to be issued by RPAD and UCP calling upon him to repay the said amount. Notice was duly served through RPAD on 17-5-2000 but the respondent has given untenable reply dated 22-5-2000. Therefore complaint under Section 200 of the Criminal Procedure Code, 1973 came to be filed against the respondent for an offence punishable under Section 138 of the N.I. Act. Likewise, the appellant Smt. Patchiammal in Cri. A. No. 888 of 2005 filed complaint against the respondent for bouncing of the two cheques bearing Nos. 503539 and 154739 i.e., Exs. P. 1 and P. 2, each for Rs. 50,000/- issued by the respondent towards discharge of loan amount borrowed from the appellant. Therefore, after issuing a legal notice through her Counsel, she filed a private complaint under Section 200 of the Cr. P.C. against the respondent for an offence punishable under Section 138 of the N.I. Act. 3. P. 1 and P. 2, each for Rs. 50,000/- issued by the respondent towards discharge of loan amount borrowed from the appellant. Therefore, after issuing a legal notice through her Counsel, she filed a private complaint under Section 200 of the Cr. P.C. against the respondent for an offence punishable under Section 138 of the N.I. Act. 3. The defence taken by the respondent in both the cases is that the complaints filed by the appellant in both the cases are premature ones. On that ground both the complaints filed by the appellants in both the respective appeals came to be dismissed. Hence these appeals. 4. Heard the arguments of the learned Counsel for the appellants and respondent. 5. Learned Counsel for the appellant argued that even if the complaint was filed before expiry of statutory period, it is the duty of the Court either to return the complaint with an endorsement to present it at proper time or to direct the office to register the case after statutory period. It is argued that the legal notice sent by RPAD was served on respondent on 8-5-2000. As a precautionary measure, notice sent to the respondent both by RPAD and UCP but the UCP could not be produced during the course of trial. Now the appellant in both the cases have produced the UCP to show that notice was sent to the respondent both by RPAD and UCP. Of course, it is argued that the notice sent to the respondent by RPAD was duly served. Reply given by the respondent is dated 22-5-2000. Therefore complaint came to be filed on 29-5-2000. The order sheet maintained by the Trial Court discloses that the office used the typed format wherein in the proceedings dated 29-5-2000 it has been printed/typed as `complainant present. Cognizance taken' but the Trial Court has not applied its mind on that day. Subsequently on 14-2-2001 after recording the sworn statement of the complainant, Trial Court found that there is ground to proceed against the accused for the said offence. Therefore, learned Magistrate ordered for issue of summons to the respondent. Therefore the complaint filed by the appellant is not a premature one and the learned Magistrate has got option either to keep pending the file without further orders or to return the complaint. Actually cognizance was taken on 14-2-2001 after applying judicious mind but not on 29-5-2000. Therefore, learned Magistrate ordered for issue of summons to the respondent. Therefore the complaint filed by the appellant is not a premature one and the learned Magistrate has got option either to keep pending the file without further orders or to return the complaint. Actually cognizance was taken on 14-2-2001 after applying judicious mind but not on 29-5-2000. Therefore the order of dismissal of the complaint on the only ground that the complaint filed by the appellant is a premature one is totally perverse and incorrect. In support of his contention, learned Counsel for the appellant has relied on a decision in Vijaya Bank, M.G. Road, Bangalore and Another v. State by Labour Enforcement Officer (Central), Bangalore 2001(1) Kar. L.J. 457: 1LR 2000 Kar. 4773, wherein the Co-ordinate Bench of this Court held as follows. 'Taking cognizance of an offence being a judicial act after application of mind, Magistrates should not use `printed pro forma' in which even the words `cognizance is taken' is also printed or typed’ Therefore it is submitted that the law laid down by this Court clearly indicates that the use of printed pro forma in which the words `cognizance is taken' does not amount to taking cognizance. Therefore, the order of acquittal passed by the Trial Court is totally incorrect and perverse and is liable to be set aside. It is further argued by the learned Counsel for the appellant that the reply dated 22-5-2000 sent by the respondent clearly indicates that there was a legally recoverable debt. It is argued that after appearance, the respondent had filed an application to stop further proceedings under Section 258 of the Cr. P.C. and discharge him which has been dismissed by the Trial Court holding that filing of the complaint is not a premature one. Therefore, the Court below, even after rejecting the application for discharge filed by the respondent, came to the wrong conclusion by holding that it is a premature one. Hence the orders of dismissal of the complaint and acquittal of the respondent is totally incorrect, perverse and liable to be set aside. 6. On the other hand, Sri Subramanya, learned Counsel for the respondent contended that now the appellants in both the cases have come up with the story by producing UCP. Hence the orders of dismissal of the complaint and acquittal of the respondent is totally incorrect, perverse and liable to be set aside. 6. On the other hand, Sri Subramanya, learned Counsel for the respondent contended that now the appellants in both the cases have come up with the story by producing UCP. If the notice had been sent both by RPAD and UCP, they would have produced the UCP at the earliest point of time. Even during trial also, no such attempt has been made. Therefore UCP produced before this Court is a concocted document. It is further argued that complaint filed by the appellants in both the cases is premature one and after considering the oral and documentary evidence placed on record the Court is perfectly justified in acquitting the respondent in both the cases on the ground that the complaint filed by the appellants as premature ones and the Trial Court took cognizance on the very same day i.e., on 29-5-2000, before expiry of the statutory period, before the expiry of the time fixed under the Act. It is further argued that recording of statement and issuance of summons to the respondent on 14-2-2001 does not amount to taking of cognizance. Once the cognizance has been taken, then the next step would be to record the sworn statement. Therefore, the filing of the complaint by the appellants is a premature one. In this behalf, learned Counsel for the respondent relied on a decision rendered by this Court in Ishwar Rama Gunaga v Ramdas Anant Prabhu 2002 (2) Kar. L.J. 565 : 2002 DCR 561 , wherein it has been held as follows. "Dishonour of cheque — Premature complaint — Filing of complaint before expiry of fifteen days after service of demand notice — Court cannot take cognizance". While arguing the case, learned Counsel for the respondents drew the attention of the Court to paragraph 5 of the judgment which reads as follows. “Where the complaint is presented prematurely, the Magistrate is duty-bound to return it. In my opinion, there is no mandate and the decision of the Supreme Court cannot be understood in that sense. If the Magistrate returns the complaint on the ground that it is premature and asking the complainant to present it after the cause of action arises, it is well and good. In my opinion, there is no mandate and the decision of the Supreme Court cannot be understood in that sense. If the Magistrate returns the complaint on the ground that it is premature and asking the complainant to present it after the cause of action arises, it is well and good. But, it is not obligatory on the part of the Magistrate to do so and any failure on the part of the Magistrate in that regard cannot be made use of to his advantage by the complainant". Therefore though the complaint has been filed by the complainant before cause of action arises, immediately the Court below took cognizance and listed the matter for recording statement of the appellant-complainant, which goes to show that the Trial Court took cognizance on 29-5-2000. It is further argued that the complaint filed by the appellant in both the cases is not at all maintainable since the complaint has been filed within 15 days from the date of receipt of notice by the respondent. With regard to this, learned Counsel has also relied on a decision rendered by the Jammu and Kashmir High Court in Sardar Singh vs. Karam Singh 1997 Cri. L.J. 3751 (J and K), wherein it has been held as follows. 'Complaint filed within 15 days from receipt of notice by drawer — No offence can be said to have been committed and no cause of action arises before expiry of 15 days from issuance of notice — Complaint premature and not maintainable'. 7. Having heard the arguments on both sides, now the point that arises for consideration and decision is, 'whether the judgment and order of acquittal passed by the Court below on the ground that the complaint filed by the appellants in both the cases are premature in both the cases is justified?' 8. It is seen that the appellants in both the cases have filed complaints for dishonour of cheques. Of course, the respondent herein in his reply has categorically denied about the alleged transaction of borrowing of rupees one lakh. It is also an admitted fact that Exs. P.1 and P. 2 in C.C. No. 26130 of 2001 have been issued and the respondent has not seriously disputed about signing on the complaint and also the date mentioned therein. Of course, the respondent herein in his reply has categorically denied about the alleged transaction of borrowing of rupees one lakh. It is also an admitted fact that Exs. P.1 and P. 2 in C.C. No. 26130 of 2001 have been issued and the respondent has not seriously disputed about signing on the complaint and also the date mentioned therein. The Bank has issued an intimation about dishonour of the cheques which were received by the appellants, dated 24-4-2000. Of course, it is the appellant who is duty-bound to comply with the mandatory provisions of Section 138(b) of the N.I. Act to issue notice to the respondent-accused within 15 days from the date of receipt of the endorsement from the Bank. The record indicates that notices came to be issued on 4-5-2000 which were despatched on 8-5-2000 and the notice was duly served on 17-5-2000. The same is reflected in postal receipts produced before Court. The respondent herein though examined himself as D.W. 1 in C.C. No. 26130 of 2001, he has not got marked any documents. The defence taken by him is that he has not borrowed any amounts from the appellant and the filing of the complaint is premature one. In C.C. No. 26134 of 2000 the appellant herein has produced the reply notice sent by the respondent and got it marked as Ex. P. 7. The same is dated 22-5-2000 wherein the respondent has denied his liability. It is an undisputed fact that the appellants in both the cases filed the complaints on 29-5-2000. Further it is clear that the office of the Trial Court put up the order sheet by filling the blanks. The proceedings on 29-5-2004 was also drawn up by the office, which contains the words `complainant present. Cognizance taken. Statement by 18-11-2000'. It seems that mechanically the Trial Court has initialled the order sheet but statement was not recorded on 19-11-2000. The case was adjourned to 14-2-2001 and on that day sworn statement of the complainant was recorded. In order to appreciate the contention, it is proper to cull out the order dated 14-2-2001 passed by the learned Magistrate which is as follows. “Sworn statement of the complainant recorded. After considering the sworn statement and the documents, I am of the view that there is a ground to proceed against the accused for the offence punishable under Section 138 of the N.I. Act. “Sworn statement of the complainant recorded. After considering the sworn statement and the documents, I am of the view that there is a ground to proceed against the accused for the offence punishable under Section 138 of the N.I. Act. Hence register case against the accused for the offence under Section 138 of the N.I. Act and issue summons to him returnable by 19-5-2000”. This clearly goes to show that on 29-5-2000 the Trial Court has not applied judicious mind but simply put its signature or initialed on the printed order sheet filled by the office. But in order to take cognizance, the Magistrate is duty-bound to apply judicious mind. So without applying judicious mind even the words `cognizance is taken' found in the order dated 29-5-2000 will not be a ground to hold that the complaint filed by the appellants in both the cases are premature ones. This Court is case of Vijaya Bank, by relying on a decision rendered by the Apex Court in the case of A.R. Antulay v Ramdas Sriniwas Nayak and Another AIR 1984 SC 718 : (1984) 2 SCC 500 , held as follows. "Taking cognizance of an offence being a judicial act after application of mind, Magistrate should not use the `printed proforma’ in which even the words ‘cognizance is taken’ are also printed or typed”. Therefore, in the instant case also, when the complaint was presented on 29-5-2000 the Court below used printed form of the order sheet which contains the words `cognizance is taken' but the same does not amount to taking of cognizance as the Trial Court has not applied judicious mind on that day while passing the order and it adjourned the case of 18-11-2000 for recording statement of complainant. But in fact the Trial Court applied its mind to the case on 14-2-2001 and after recording the statement of the accused found that there is no ground to proceed against the accused-respondent for the offence punishable under Section 138 of the N.I. Act and accordingly ordered to register the case and issued summons to the accused-respondent. Therefore, even if the complaint was filed on 29-5-2000 before cause of action arises, without returning of the complaint on 29-5-2000 itself, the Court below has rightly exercised its second option and adjourned the case to 18-11-2000, thereafter to 20-1-2001 and 14-2-2001. Therefore, even if the complaint was filed on 29-5-2000 before cause of action arises, without returning of the complaint on 29-5-2000 itself, the Court below has rightly exercised its second option and adjourned the case to 18-11-2000, thereafter to 20-1-2001 and 14-2-2001. Therefore at any stretch of imagination it cannot be said that the impugned order of acquittal passed by the Court below in both the cases is correct. The judgment and order of acquittal passed by the Trial Court is perverse, illegal and unjustified. The appellants in both the cases proved that the cheques issued by the respondent in both the cases are for legally recoverable debt and mere denial of borrowing of the amount does not amount to a proof and though the respondent has made an attempt to rebut the evidence of the complainants-appellants but the appellants-complainants successfully discharged the burden which was heavily cast on them to show that cheques were issued by the respondent for discharge of legally recoverable debt. 9. In the result, both the appeals are allowed by setting aside the order of acquittal passed in C.C. No. 26130 of 2001 and C.C. No. 26134 of 2001 and the respondent in both the cases is convicted for the offence punishable under Section 138 of the N.I. Act and sentenced to pay a fine of Rs. 1,20,000/- each in both the cases. In default, he shall undergo simple imprisonment for six months in each appeal. If the respondent deposits the fine amount, the same shall be paid to the appellants respectively.