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2009 (2) KantLJ 451
High Court of Karnataka
THE HONOURABLE MR. JUSTICE K. RAMANNA
Patchiammal - Appellant
Versus
K.C. Sriramalu - Respondent
Criminal Appeal No. 888 of 2005 connected with Criminal Appeal No. 887 of 2005
Date of Judgment : 12-06-2008
H.V. Subramanya, Advocate.
The main legal point established in the judgment is the duty of the magistrate to apply judicious mind before taking cognizance, the obligation to return premature complaints, and the importance of complying with statutory provisions.
Headnote:
Premature Complaint - Negotiable Instruments Act - Section 138 - 138(b) - 200 - 258 - [Summary of Acts and Sections: The court discussed the provisions of Section 138 of the Negotiable Instruments Act, 1881, which deals with the dishonor of cheques due to insufficient funds. The court also referred to Section 200 and Section 258 of the Criminal Procedure Code, 1973, which relate to the procedure for filing a complaint and the power of the magistrate to discharge the accused. The court's decision was influenced by the interpretation of Section 138(b) and the requirement to issue notice within 15 days of receiving the endorsement from the bank, as well as the magistrate's duty to apply judicious mind before taking cognizance. The court also considered precedents related to premature complaints and the obligation of the magistrate to return such complaints. The judgment highlighted the importance of complying with the statutory provisions and the duty of the magistrate to exercise judicial discretion in taking cognizance.
Fact of the Case:
The appellant filed complaints against the respondent for dishonor of cheques issued as repayment for a loan. The respondent argued that the complaints were premature, but the appellant contended that the complaints were valid. The court analyzed the timing of the complaints, the issuance of notices, and the actions of the trial court.
Finding of the Court:
The court found that the complaints were not premature and that the trial court had not applied judicious mind before taking cognizance. The court held that the respondent's denial of borrowing the amount did not discharge the burden of proof, and the cheques were issued for a legally recoverable debt.
Issues: The main issue was whether the complaints filed by the appellants were premature, and whether the trial court's order of acquittal was justified.
Ratio Decidendi: The court held that the complaints were not premature as the trial court had not applied judicious mind before taking cognizance. The court emphasized the duty of the magistrate to return premature complaints and the importance of complying with statutory provisions.
Final Decision: The appeals were allowed, the order of acquittal was set aside, and the respondent was convicted for the offense punishable under Section 138 of the N.I. Act.
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. 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
