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Madhya Pradesh High Court · body

2016 DIGILAW 274 (MP)

Mukesh Tiwari v. Janki Singh

2016-04-01

C.V.SIRPURKAR

body2016
ORDER 1. This miscellaneous criminal case is directed against the order dated 4.8.2015 passed by the Court of 9th ASJ, Jabalpur in Criminal Revision No.268/2015, whereby the order dated 7.7.2015 passed by the Court of JMFC, Jabalpur in Complaint Case No.3673/2011 declining to dismiss the private complaint for failure of the complainant to deposit court-fees along with the private complaint, was upheld. 2. The facts necessary for disposal of this miscellaneous criminal case, in nutshell, are as follows : Respondent complainant Janki Singh (hereinafter referred to in this order as “the complainant”), filed a complaint under section 138 of the Negotiable Instruments Act against the petitioner accused Mukesh Tiwari (hereinafter referred to in this order as “the accused”) in the Court of JMFC, Jabalpur on 27.8.2011. As per Article 2(1)(b) of the Court-fees Act, 1870 inserted by the Court-fees (M.P. Amendment) Act, 2008 (No.6 of 2008) section 8 published in M.P. Rajpatra (Extra-Ordinary) dated 2.4.2008 pages 380 (1-2), the complainant was required to pay the court-fees in the sum of Rs.96,000/- on the complaint. Out of aforesaid amount, he paid court-fees worth Rs.80,000/- on 14.2.2013 and worth Rs.16,000/- on 4.3.2013; thereafter, the private complaint was registered and process was issued against the petitioner on 8.3.2013. 3. Upon his appearance, petitioner moved an application dated 7.7.2015 (Annexure P-3 filed along with this petition) before the trial Court submitting that the complaint was filed only on Court fees stamps worth Rs.500/-; as such, it was not maintainable for want of adequate court-fees. Learned Magistrate observed that the complainant had deposited the court-fees stamps worth Rs.80,000/- on 14.2.2013 and Rs.16,000/- on 4.3.2013; however, since the stamp papers being bulky, were kept separately by the Reader. The accused was under the impression that the complaint was filed only on the court-fees stamps worth Rs.500/-; however, since the entire amount of court-fees has been paid, the application dated 7.7.2015 is liable to be dismissed. Accordingly, the application was dismissed by the trial Court. 4. The accused challenged the order dated 7.7.2015 passed by the learned Magistrate before the learned ASJ in criminal revision, contending that the complaint was required to be accompanied by the court-fees stamps worth the entire amount payable. Accordingly, the application was dismissed by the trial Court. 4. The accused challenged the order dated 7.7.2015 passed by the learned Magistrate before the learned ASJ in criminal revision, contending that the complaint was required to be accompanied by the court-fees stamps worth the entire amount payable. Since, in the first instance, the private complaint was filed along with court-fees stamps in the sum of Rs.500/- only, its presentation was incompetent and the trial Court could not have taken cognizance of offence against the accused on such a complaint. 5. After considering the arguments of the petitioner-accused, learned ASJ held that there is no law which prohibits acceptance of the court-fees at a later stage of the case. Since, the entire amount of court-fees was paid before taking cognizance of the matter against the accused, there was no illegality, irregularity or infirmity in order of the trial Court, vitiating the proceedings before that Court. Consequently, the criminal revision was dismissed in limine. 6. Learned counsel for the applicant has assailed the impugned order before this Court solely on the ground that a complaint under section 138 of the Negotiable Instruments Act is a criminal proceedings and it is settled principle of interpretation statute that the provisions relating to criminal matters, should be strictly construed. It has further been submitted that there is no provisions akin to section 149 of the CPC, in the Code of Criminal Procedure, Negotiable Instruments Act or Court-fees Act, empowering the Court to permit the complainant to deposit the court-fees at a later stage of the complaint. Learned counsel for the applicant contends that the court-fees stamps ought to have accompanied the complaint and if it is not paid at the time of presentation of the complaint, the deficiency cannot be made good at any later stage. Thus, the orders of trial Court permitting deposit of court-fees dated 14.2.2013 and 4.3.2013, were without jurisdiction and are liable to be quashed. The presentation of the complaint being incompetent, it is liable to be dismissed and the accused is entitled to be acquitted. 7. Thus, the orders of trial Court permitting deposit of court-fees dated 14.2.2013 and 4.3.2013, were without jurisdiction and are liable to be quashed. The presentation of the complaint being incompetent, it is liable to be dismissed and the accused is entitled to be acquitted. 7. It is not in dispute before this Court that as per Article 2(1)(b) of Schedule II appended to the Court-fees Act, 1870, the court-fee in the sum of Rs.96,000/- was payable on the complaint and it was paid before the process was issued against the accused; thus, the only question that remains for consideration is whether the trial Court had jurisdiction to accept court-fees after presentation of the complaint ? 8. The arguments of learned counsel for the applicant that there is no provision in the Court-fees Act, 1870 corresponding section 149 of the CPC is fallacious as it advanced in ignorantia the section 33 of the Court-fees Act, 1870 which reads as hereunder : “33. Admission in criminal case of documents for which proper fee has not been paid. -- Whenever the filing or exhibition in a Criminal Court of a document in respect of which the proper fee has not been paid is, in the opinion of the presiding Judge, necessary to prevent a failure of justice, nothing contained in section 4 or section 6 shall be deemed to prohibit such filing or exhibition.” 9. Thus, the Presiding Judge in a criminal Court, may, inspite of the bar contained in section 6 of the Act, accept filing of a document in respect of which proper fee has not been paid, if in his opinion it is necessary to prevent the failure of justice. 10. In view of section 33 (supra), learned Magistrate certainly had jurisdiction to entertain the private complaint without the requisite court-fees and allow payment thereof at a later stage. Thus, no jurisdictional error was committed by the trial Court in entertaining the complaint without adequate court-fees and permitted the payment thereof at a later stage, particularly where it was paid before the order issuing process against the accused. In any case, payment of adequate court-fees was a matter between the complainant and the state. Thus, no jurisdictional error was committed by the trial Court in entertaining the complaint without adequate court-fees and permitted the payment thereof at a later stage, particularly where it was paid before the order issuing process against the accused. In any case, payment of adequate court-fees was a matter between the complainant and the state. As such, the Courts below committed no error in declining to dismiss the complainant on the ground of court-fees, in the interest of justice, warranting interference by the High Court in exercise of inherent powers as no case of abuse of process of the Court or injustice is made out by the petitioner. 11. Consequently, this Miscellaneous Criminal Case is dismissed in limine.