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2020 DIGILAW 942 (MAD)

B. Vijayalakshmi v. R. Amaravathi

2020-06-30

B.PUGALENDHI, P.N.PRAKASH

body2020
ORDER : P.N. Prakash, J. 1. This Criminal Original Petition has been filed seeking to quash the prosecution in S.T.C. No. 630 of 2013 on the file of the Judicial Magistrate No. 1, (Fast Track Court), Madurai. 2. For the sake of convenience, the petitioner and the respondent will be referred to as 'accused' and 'complainant' respectively. 3. Before adverting to the referral order, it will be apposite to narrate the facts : 3.1. It is the case of the complainant that the accused borrowed a sum of Rs. 2,25,000/- (Rupees Two Lakhs and Twenty Five Thousand only) on 12.01.2011 as loan promising to repay the same with interest at 24% p.a. Towards the said debt, the accused issued a cheque dated 12.04.2013 for Rs. 3,46,500/- (Rupees Three Lakhs Forty Six Thousand and Five Hundred only). The complainant presented the said cheque for collection on 18.04.2013 and the same was returned unpaid with the endorsement 'Funds Insufficient' on 19.04.2013. 3.2. The complainant issued a statutory demand notice on 30.04.2013 to the accused and on receipt of the same, the accused sent a reply notice dated 03.05.2013 repudiating the debt. Therefore, the complainant filed a complaint in S.T.C. No. 630 of 2013 for the offence under Section 138 of the Negotiable Instruments Act, on 08.05.2013, in the Court of Judicial Magistrate No. 1 (Fast Track Court), Madurai, against the accused. After a tiresome exercise by the complainant, the accused appeared before the Magistrate and after a few hearings, absconded and that necessitated the Magistrate to issue warrant to secure the accused on 12.07.2016. Ultimately, on 04.04.2017, the accused surrendered before the Magistrate, pursuant to which, the warrant was recalled and the trial began. 3.3. The complainant was examined as P.W. 1 on 13.06.2017 and the accused was questioned under Section 313(i)(b) Cr.P.C., on 29.06.2017. Opportunity was given to the accused to produce defence witnesses, but she filed a petition under Section 311 Cr.P.C., to recall the complainant/P.W. 1 for cross-examination. The complainant was subjected to cross-examination on 03.10.2017, 25.10.2017 and 09.11.2017. Thereafter, the matter was adjourned for arguments from time to time. While so, the accused filed Crl.O.P.(MD) No. 5109 of 2018 before this Court on 28.03.2018 under Section 482 Cr.P.C., for quashing the prosecution on the ground that the complainant had filed the complaint before the expiry of fifteen days period envisaged by Section 138(c) of the Negotiable Instruments Act. Thereafter, the matter was adjourned for arguments from time to time. While so, the accused filed Crl.O.P.(MD) No. 5109 of 2018 before this Court on 28.03.2018 under Section 482 Cr.P.C., for quashing the prosecution on the ground that the complainant had filed the complaint before the expiry of fifteen days period envisaged by Section 138(c) of the Negotiable Instruments Act. In essence, the grievance of the accused is that the statutory notice was issued by the complainant on 30.04.2013; she had filed the complaint on 08.05.2013; the Court had recorded the sworn statement of the complainant on 09.05.2013 and taken cognizance of the offence. 3.4. When the matter was taken up for hearing, it was brought to the knowledge of the learned Single Judge that there were two conflicting views on this aspect. A learned Single Judge of this Court (Pratap Singh, J.) in V. Suresh Kumar v. C. Sreekrishnan reported in 1995 (83) Company Cases 103 (Madras) took the view that a complaint filed within fifteen days of the issuance of the statutory demand notice cannot be maintained. However, another learned Single Judge (S. Vimala, J.) in Sagaya Arockia Raj v. Ganesh Kumar reported in (2017) 1 MLJ (Crl.) 226, took a different view and held that after the accused had repudiated the debt by issuing a reply notice to the statutory demand notice, there is no necessity for the complainant to wait for fifteen days to present the complaint. On account of these divergent views, the learned Single Judge who heard this case, referred the matter to a Division Bench by order dated 10.08.2018 and the reference reads thus: "20. There is apparent conflict of views in the judgment referred supra and reported in 2017 (1) MLJ (Crl.) 226 and judgment referred herein above, reported in 1995 (83) Comp Cas 103 (Mad). 21. One more important issue that needs to be answered in cases of this nature is that what happens if the drawer of the cheque initially denies the liability and issues a reply notice and thereafter changes his mind to pay the cheque amount within a period of 15 days provided under Section 138 (c) of Negotiable Instruments Act? 22. 21. One more important issue that needs to be answered in cases of this nature is that what happens if the drawer of the cheque initially denies the liability and issues a reply notice and thereafter changes his mind to pay the cheque amount within a period of 15 days provided under Section 138 (c) of Negotiable Instruments Act? 22. Yet another question that needs to be answered is, where a legislature specifically provides for a waiting period of 15 days for the cause of action to arise to file a criminal complaint under Section 138 of the Act, in a plain and simple language, whether the Court can read something into it and cut short the 15 days period, more particularly, when the penal statute always requires strict interpretation. 23. In view of conflicting decisions of two learned single Judges of this Court on the same issue and in view of the importance of resolving the important question of law that has arisen for consideration, this Court deems it fit to place the matter before a Division Bench in order to resolve the conflict and to come out with an authoritative pronouncement. 24. For the reasons stated above, this Court directs the Registry to place this matter before the Hon'ble Administrative Judge, so as to enable the Hon'ble Administrative Judge to consider constituting a Bench in order to hear the issue and to resolve the conflict and make an authoritative pronouncement on the issue." 3.5. Ergo, this Division Bench came to be constituted to answer the reference. 4. This Court appointed Mr. G. Karuppasamy Pandian, Advocate, as Amicus Curiae to assist this Court. 5. Heard Mr. G. Karuppasamy Pandian, learned Amicus Curiae, Mr. K.V. Manickavasagan, learned Counsel representing Mr. R. Jayaratchagan, learned Counsel for the accused and Mr. K. Rajeshwaran, learned Counsel for the complainant. 6. At the outset, Mr. G. Karuppasamy Pandian, learned Amicus Curiae and Mr. This Court appointed Mr. G. Karuppasamy Pandian, Advocate, as Amicus Curiae to assist this Court. 5. Heard Mr. G. Karuppasamy Pandian, learned Amicus Curiae, Mr. K.V. Manickavasagan, learned Counsel representing Mr. R. Jayaratchagan, learned Counsel for the accused and Mr. K. Rajeshwaran, learned Counsel for the complainant. 6. At the outset, Mr. G. Karuppasamy Pandian, learned Amicus Curiae and Mr. K.V. Manickavasagan, learned Counsel for the accused submitted that the issue is no more res integra in view of the authoritative pronouncement of the Supreme Court in Yogendra Pratap Singh v. Savitri Pandey reported in AIR 2015 SUPREME COURT 157, wherein a Three Judge Bench was constituted to resolve a conflict between Narsingh Das Tapadia v. Goverdhan Das Partani reported in (2000) 7 Supreme Court Cases 183 and Sarav Investment & Financial Consultancy Private Limited v. Llyods Register of Shipping Indian Office Staff Provident Fund reported in (2007) 14 Supreme Court Cases 753. 7. In Narsingh Das Tapadia v. Goverdhan Das Partani (supra), a Two Judge Bench of the Supreme Court held that a complaint filed within fifteen days after the issuance of the statutory notice can be taken on file, whereas in Sarav Investment & Financial Consultancy Private Limited v. Llyods Register of Shipping Indian Office Staff Provident Fund (supra), a Two Judge Bench held otherwise. 8. In Yogendra Pratap Singh v. Savitri Pandey (supra), a Three Judge Bench formulated the following questions for consideration: "(i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138(c) of the Act aforementioned? and, (ii) If answer to question No. 1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired?" 9. After an elaborate discussion, the Supreme Court answered the reference by overruling Narsingh Das Tapadia v. Goverdhan Das Partani (supra) and approving Sarav Investment & Financial Consultancy Private Limited v. Llyods Register of Shipping Indian Office Staff Provident Fund (supra). 10. After an elaborate discussion, the Supreme Court answered the reference by overruling Narsingh Das Tapadia v. Goverdhan Das Partani (supra) and approving Sarav Investment & Financial Consultancy Private Limited v. Llyods Register of Shipping Indian Office Staff Provident Fund (supra). 10. In paragraph 36 of the judgment in Yogendra Pratap Singh v. Savitri Pandey (supra), the Supreme Court has, in no uncertain terms, expounded the law, as under: "36. ... It is not the question of prematurity of the complaint where it is filed before expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates legal bar on the Court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque." 11. However, the learned Counsel for the complainant sought to make a distinction by submitting that in Yogendra Pratap Singh v. Savitri Pandey (supra), the Supreme Court had not dealt with a case where the accused had issued a reply notice to the statutory demand notice repudiating from debt. The learned Counsel placed very strong reliance from the following passage from the judgment of the learned Single Judge (S. Vimala, J.) in Sagaya Arockia Raj v. Ganesh Kumar (supra), wherein the learned Single Judge has referred to the judgment in Yogendra Pratap Singh v. Savitri Pandey (supra) and observed in paragraph 5 as follows: "5. Thus, this section gives an opportunity not only to the honest drawer, but also to a dishonest drawer to make amends and to escape from prosecution. Thus, this section gives an opportunity not only to the honest drawer, but also to a dishonest drawer to make amends and to escape from prosecution. So far as this case is concerned, the alleged dishonest drawer did not want to make payment, but has chosen to say "No Payment". Therefore, there is no purpose in waiting for the completion of 15 days." 12. We are unable to persuade ourselves to agree with this submission for the simple reason that the statute contemplated only issuance of notice by the complainant and did not envisage issuance of reply notice by the accused. Thus, the learned counsel for the complainant is trying to make out a distinction without a difference. 13. The learned Referral Judge has, in paragraph 11 of the referral order, rightly expatiated on the expression 'fails' used in Section 138 of the Negotiable Instruments Act and the same is worth quoting hereunder: "11. When the notice is given by the complainant demanding payment, the accused must make payment within a period of 15 days of the receipt of such notice. The words "the drawer of such cheque fails to make the payment" are ostensibly different from saying "the drawer refuses to make payment". The legislature has thoughtfully used the word "fails" instead of other expressions, as failure can be due to variety of reasons including disability to pay. Therefore, the offence would be complete, when the drawer "fails" to make payment within the stipulated time, whatever be the cause for such failure." 14. We are in agreement with the above analysis of the word 'fails' employed in Section 138 of the Negotiable Instruments Act. That apart, when Section 138(c) of the Negotiable Instruments Act, gives 15 days time to the accused from the date of receipt of notice for making payment to the complainant, the same cannot be abridged either contractually or inferentially. In other words, the parties cannot contract out of a penal statute nor the complainant can take a stand that, since the accused has expressed his desire unequivocally by repudiating the debt in the reply notice, it would be fatal to wait for the expiry of the statutory period. Even after issuing reply notice, the accused can change his mind and make payment to the complainant before the expiry of fifteen days period and thereby, avoid prosecution. 15. Even after issuing reply notice, the accused can change his mind and make payment to the complainant before the expiry of fifteen days period and thereby, avoid prosecution. 15. It may be profitable to allude to the following passage in Yogendra Pratap Singh v. Savitri Pandey (supra), as under: "13. ... Hence, the reading of Proviso (c) to Section 138 clearly denotes that it would not be an offence if the drawer pays the amount within a period of 15 days as specified therein. In such circumstances, there could not have been any complaint alleging the violation of Section 138. The pre-offence period granted to the payee should be construed strictly, otherwise the very purpose of Section 138(c) of the Negotiable Instruments Act would be frustrated. ..." 16. In fine, we do not approve the view taken by the learned Single Judge (S. Vimala, J.) in Sagaya Arockia Raj v. Ganesh Kumar (supra) and approve the view of the learned Single Judge (Pratap Singh, J.) in V. Suresh Kumar v. C. Sreekrishnan. 17. We answer the reference as follows: (i) The complaint filed within the period of fifteen days contemplated by Section 138(c) of the Negotiable Instruments Act, is no complaint in the eye of law albeit the repudiation of the debt by the accused via his reply notice to the statutory demand notice. (ii) Coming to the second question raised in paragraph 22 of the referral order alluded to above, the answer to it, is an emphatic 'No' and we are fortified by the following observations of the Supreme Court in Mandvi Co-op. Bank Ltd., v. Nimesh S. Thakore reported in (2010) 3 Supreme Court Cases 83: "33. Coming back to the fist error in the High Court's reasoning, in the guise of interpretation it is not permissible for the court to make additions in the law and to read into it something that is just not there. In Union of India and Anr. v. Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 323, this Court sounded the note of caution against the Court usurping the role of legislator in the guise of interpretation. The Court observed: "14. ...it is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. (1) SCC 323, this Court sounded the note of caution against the Court usurping the role of legislator in the guise of interpretation. The Court observed: "14. ...it is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught the legislative judgment is subversive of the constitutional harmony and comity of instrumentalities...." 18. The next issue is, should this matter be sent back to the learned Single Judge for disposal on merits? Both sides submitted that the matter can be heard by us in order to save time. 19. In the light of the judgment in Yogendra Pratap Singh v. Savitri Pandey (supra) and the answer given by us to the reference, we hold that the complaint filed by the complainant in S.T.C. No. 630 of 2013 on the file of the Judicial Magistrate No. 1, (Fast Track Court), Madurai, is non-est in the eye of law and therefore, the prosecution in S.T.C. No. 630 of 2013 is liable to be quashed and the same is, accordingly, quashed. 20. After having held so, can the complainant be left high and dry? The answer to this, has been given by the Supreme Court in paragraph 42 of the judgment in Yogendra Pratap Singh v. Savitri Pandey (supra) and the same is as follows: "42. ... 20. After having held so, can the complainant be left high and dry? The answer to this, has been given by the Supreme Court in paragraph 42 of the judgment in Yogendra Pratap Singh v. Savitri Pandey (supra) and the same is as follows: "42. ... Now, since our answer to question (i) is in the negative, we observe that the payee or the holder in due course of the cheque may file a fresh complaint within one month from the date of decision in the criminal case and, in that event, delay in filing the complaint will be treated as having been condoned under the proviso to clause (b) of Section 142 of the NI Act. This direction shall be deemed to be applicable to all such pending cases where the complaint does not proceed further in view of our answer to question (i)." 21. Following the above dictum and bearing in mind the fact that due to COVID-19 Pandemic, there are frequent lockdowns and litigants are not permitted physical entry into Courts, six months time is granted to the complainant from the date of receipt of a copy of this order to file a fresh complaint before the learned Judicial Magistrate No. 1, (Fast Track Court), Madurai and on such filing, the delay occasioned shall stand condoned under the proviso to Clause (b) of Section 142 of the Negotiable Instruments Act. The accused has filed an affidavit of undertaking, dated 20.03.2020, before this Court, which reads as follows: "I, B. Vijayalakshmi, W/o. M. Balasundarapandian, Hindu, aged about 38 years, earlier resided at C-303, East Street, Anaiyur, Madurai-17 and now residing at C-345, Silayaneri, TNHB Colony, Tamil Nagar, Anaiyur, Madurai-17, do hereby solemnly affirm and sincerely state as follows: 1) I am the Petitioner/Accused in the above Crl.O.P. No. 5109 of 2018 and Deponent herein and as such I am well acquainted with the facts of the case. 2) My Aadhar card No. is 5790 7619 4352 and my Smart Card No. NPHH333940250276 and my Cell Number is 8270702220. 3) I am ready to comply with the direction under section 88 of Cr.P.C., on receipt of summons from the learned Magistrate, if fresh case is filed in accordance with orders passed by this Honourable Court. 2) My Aadhar card No. is 5790 7619 4352 and my Smart Card No. NPHH333940250276 and my Cell Number is 8270702220. 3) I am ready to comply with the direction under section 88 of Cr.P.C., on receipt of summons from the learned Magistrate, if fresh case is filed in accordance with orders passed by this Honourable Court. 4) Since, I am neighbouring lady to the Complainant's house, I will not abscond and I will diligently pursue the fresh case filed against me." 22. In view of the undertaking given by the accused, she shall appear before the learned Judicial Magistrate No. 1, (Fast Track Court), Madurai, after cognizance is taken on the fresh complaint filed by the complainant without adopting any dilatory tactics. The learned Judicial Magistrate shall obtain a bond under Section 88 Cr.P.C., from the accused. The evidence recorded by the learned Judicial Magistrate in S.T.C. No. 630 of 2013 requires to be eschewed and the same cannot be used either for corroboration or for contradiction by either side. Fresh evidence has to be perforce recorded by the learned Judicial Magistrate. However, the documents that were marked in S.T.C. No. 630 of 2013 shall be returned to the complainant for marking in the fresh complaint. We are aware of the judgment of the Supreme Court in Satyajit Banerjee v. State of West Bengal reported in 2005 (1) Supreme Court Cases 115, wherein it has been held that when retrial is ordered, the evidence already recorded cannot be eschewed and the witnesses need not be re-examined. We are afraid that we may not be in a position to apply the above dictum to save the evidence of the witnesses already recorded, because in Yogendra Pratap Singh v. Savitri Pandey (supra), the Supreme Court has categorically held that the complaint filed before the expiry of fifteen days laid down in Section 138(c) of the Negotiable Instruments Act, is no complaint at all in the eye of law. Consequently, the cognizance taken on such a complaint and the evidence recorded thereafter would also become non-est in the eye of law. However, if the witness is not available, then Section 33 of the Evidence Act can be invoked even in a case of this nature. That is not the case here. The complainant is available in this case. 23. In fine, this Criminal Original Petition is allowed as above. 24. However, if the witness is not available, then Section 33 of the Evidence Act can be invoked even in a case of this nature. That is not the case here. The complainant is available in this case. 23. In fine, this Criminal Original Petition is allowed as above. 24. We place on record our appreciation for Mr. G. Karuppasamy Pandian, learned Amicus Curiae for his able assistance to us in this case.