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2008 DIGILAW 3790 (MAD)

S. Anand v. B. Narayanasamy

2008-10-20

K.MOHAN RAM

body2008
Judgment :- The above Criminal Original Petition is directed against the order dated 04.06.2008 passed in Crl.R.C.No.99 of 2007 on the file of the learned IV Additional Sessions Judge, City Civil Court, Chennai. 2. The petitioner is the accused in C.C.No.6513 of 2007 on the file of the learned XXXIII Metropolitan Magistrate, Saidapet, Chennai. The respondent herein is the complainant therein. The said case has been taken cognizance of by the learned Magistrate on the basis of the complaint filed by the respondent against the petitioner herein for an alleged offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”). 3. The cheques issued by the petitioner in favour of the respondent were dishonoured on 111. 2004 and the intimation of dishonour was received by the respondent on 111. 2004 and the complainant initially issued a legal notice dated 012. 2004 but it was returned due to incomplete address and therefore the very same notice was once-again issued to the accused on 112. 2004 and the same was received by the accused / petitioner herein on 212. 2004 and for that he had sent a reply and thereafter the complaint was filed on 20.01.2005 but the complaint was returned on 16.02.2006 with an endorsement “Complainant Present in this case there are two notices. Under those circumstances how this complaint is maintainable? Hence returned” and the same was re-presented on 28.06.2006. Subsequently on 21.08.2007 the Sworn Statement of the complainant / respondent herein has been recorded and the documents perused and it was adjourned to 23.08.2008 and on 23.08.2007 on a perusal of the sworn statement and the documents the learned Magistrate came to the conclusion that a prima facie case has been made out and hence took the complaint on file and ordered issue of summons to the accused / petitioner herein. 4. In the Criminal Revision filed before the Sessions Court, the contention of the petitioner was that two legal notices had been sent and hence two cause of action have arisen and therefore the complaint is not sustainable in law. 4. In the Criminal Revision filed before the Sessions Court, the contention of the petitioner was that two legal notices had been sent and hence two cause of action have arisen and therefore the complaint is not sustainable in law. The further contention was that when the learned Magistrate returned the complaint on 16.02.2006 the same was re-presented by the complainant after a lapse of eighteen months and the learned Magistrate received the complaint and without issuing any notice to the accused took cognizance of the complaint and therefore the complaint is liable to be quashed. 5. The learned Sessions Judge has pointed out that the notice dated 012. 2004 was returned due to incomplete address and hence the very same notice was again sent on 112. 2004 to the correct address and both the notices had been sent within the period of one month from 111. 2004 viz., the date on which the intimation from the petitioner was received by the complainant / respondent herein and therefore the contention that two cause of action have arisen is not sustainable. 6. The second contention put forth by the petitioner was also rejected by basing reliance on a decision of the Division Bench of this Court reported in 2000 (1) CTC 225 (A. Vinayagam v. Dr. Subash Chandran and another). In the said Division Bench judgment it has been held that the accused cannot claim any benefit on account of representation of complaint returned by Court without specifying time limit for such re-presentation of complaint and it has been further held that the date of filing of the complaint could be relevant and if the complaint had been filed within the period prescribed under the Act and even if the complaint is returned thereafter by the Court without specifying the time limit or for representation the date of filing of the complaint would alone be relevant for the purpose of limitation. 7. Heard the petitioner who is appearing in-person. The petitioner submitted that Section 143 (3) of the Act stipulates that every trial under the Act shall be completed within the period of six months from the date of filing of the complaint whereas in this case the complaint itself had been re-presented after a lapse of eighteen months and as such the learned Magistrate ought not to have taken cognizance of the complaint. The petitioner also relied upon a decision of the learned Judge of this Court rendered in the case of C.K. Mahalingam v. R. Palanisamy, in the order dated 24.04.2008 in Crl.O.P.No.10189 of 2006. Except the aforesaid submissions no other submissions have been made. 8. I have carefully considered the said submissions made by the petitioner, perused the materials available on record and the order of the Courts below. As per the decision of the Division Bench reported in 2000 (1) CTC 225 (referred to supra), the relevant date to be taken into consideration is the date of filing of the complaint and not the date of representation of the complaint. One another crucial aspect which has to be pointed out is that in the same Division Bench judgment the Division Bench had deprecated the practice of returning of the complaints by the Magistrates even if some defects are noticed by them. Therefore, the very return of the complaint made by the learned XXXIII Metropolitan Magistrate, Saidapet, Chennai, is against the said Division Bench decision and therefore the accused / petitioner herein cannot take advantage of the mistake committed by the Court. The celebrated Latin Maxim – Actus curias neminem gravabit – Act of Court should not prejudice any one should be kept in mind. In 2000 (1) CTC 225 (referred to supra) the Division Bench after referring to a decision reported in 1995 (2) Law Weekly (Crl.) 405 (T. Vanamalai v. T.D. Sundara Varadhan) has in paragraphs 15 and 16 observed and laid down as under:- “15. Law does not know or provide any other mode of dealing with the complaint, much less returning the complaint. It is not possible for a Magistrate to return the complaint for the so called defects and if the defects are there in the complaint, the complainant has to suffer. There is no warrant in the Criminal Procedure Code or the Criminal Rules of Practice, empowering the Magistrate to return then complaint just because he thinks that there are any defects. .... 16. .... Therefore, it will have to be held that the papers became the Courts property and merely because the complaints were returned to the complaints, the papers did not lose their character as the Courts property. .... 16. .... Therefore, it will have to be held that the papers became the Courts property and merely because the complaints were returned to the complaints, the papers did not lose their character as the Courts property. If that be so, then even if the complaints were re-presented after the period of limitation, it would be of no consequence and the date of original presentation would have to be deemed to be the date of presentation. If that was within limitation, the complaints would have to be treated as within limitation.” In the light of the said decision of the Division Bench, this Court is of the considered view that the Revisional Court has applied the correct legal principles applicable to the facts of this case and rejected the said contention of the petitioner. 9. As far as the contention of the petitioner based on the decision of a learned Judge in Crl.O.P.No.10189 of 2006 is concerned at the out set itself it has to be pointed out that the said decision is not applicable to the facts of this case. In the said order in paragraphs 5 and 6 the learned Judge has observed as under:- “5. ... On a careful perusal of the complaint, I find that the date of filing of the complaint has not been stated and the Court seal reflects the date as 12. 2006. Thus, there is no proof at all for filing the complaint on 6. 2004. An endorsement by the learned Magistrate is not available to substantiate that the complaint filed on the earlier occasion was in fact returned for want of some corrections. 6. It appears that actually, the complaint has been filed directly on 12. 2006 and a petition to condone the delay in re-presenting the complaint has been filed under Sec. 5 of the Limitation Act.” Further in paragraph 9 of the said order it is observed as under:- “9. On a perusal of the records, I find that no order has been passed by the learned Magistrate in the petition filed for condoning the delay in re-presenting the complaint. On a perusal of the records, I find that no order has been passed by the learned Magistrate in the petition filed for condoning the delay in re-presenting the complaint. It appears that after receiving the petition for condoning the delay along with the complaint, the learned Magistrate has directly recorded the sworn statement and proceeded further by issuing summons.” Thus it is crystal clear that the facts of that case are totally different from the facts of this case and moreover it has to be pointed out that the aforesaid Division Bench judgment of this Court has not been brought to the notice of the learned Judge in that case. For the aforesaid reasons, the second contention of the petitioner is also liable to the rejected and accordingly rejected. 10. The above Criminal Original Petition is devoid of merits and the same is liable to be dismissed and accordingly dismissed. Consequently the connected MPs are closed. The learned XXXIII Metropolitan Magistrate, Saidapet, Chennai, shall dispose of C.C.No.6513 of 2007 as expeditiously as possible but preferrably within four months from the date of receipt of a copy of this order.