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Judgment
S. Tamilvanan, J.—Cri.O.P.No. 6773 of 2006 has been filed u/s 482 of the Code of Criminal Procedure, seeking an order to call for the
records relating to the case in C.C.No. 326 of 2005 on the file of the Judicial Magistrate No. I, Dharmapuri and quash the same.
Crl.O.P.No. 6774 of 2006 has been filed u/s 482 of the Code of Criminal Procedure, seeking an order to call for the records relating to the
case in STC No. 1577 of 2005 on the file of the Judicial Magistrate No. I, Dharmapuri and quash the same.
Crl.O.P.No. 6774 of 2006 has been filed u/s 482 of the Code of Criminal Procedure, seeking an order to call for the records relating to the
case in C.C.No. 285 of 2005 on the file of the Judicial Magistrate No. I, Dharmapuri and quash the same.
It is seen from the records that the respondent herein filed similar complaints u/s 200 of Cr.P.C against the petitioners / accused for alleged
offence punishable u/s 138 rule with 142 of Negotiable Instruments Act. All the three Criminal Original Petitions have been filed with similar
averments against the respondent, Bank of India, Dharmapuri Branch, represented by its Senior Manager.
As per the complaint given by the respondent / complainant against the petitioners, the petitioners / accused are close relative of one R.
Mohandas and one D.R. Rajasekaran, the partners of a firm under the name and style of M/s. D.R. Ramamoorthy & Sons, carrying on business in
petroleum products at Bye-pass Road, Dharmapuri. The said firm was liable to pay the respondent bank a balance to the tune of Rs. 86,00,000/-
(Rupees Eighty six lakh only) in the cash-credit account maintained by the said firm and the bank was insisting on the said firm to regularize the
account. The partners of the firm had obtained 6 cheques from the petitioners / accused drawn in favour of the aforesaid firm and requested the
respondent bank to purchase the cheques and adjust the proceeds thereof towards part satisfaction of the dues in their cash-credit account. The
respondent bank, being a holder in due course of the cheques presented the same for collection on the due dates of the cheques in the respective
banks, but all the said cheques were returned by the respective drawee banks on the same day of presentation, on the ground of ""Insufficiency of
Funds."" Therefore, the respondent bank thereafter issued a legal notice to all the petitioners with regard to the dishonour of the respective cheques
issued by them.
The details of three cheques issued by R. Kanthimathi, petitioner in Crl.O.P.No. 6773 of 2006 are as follows:
No. Date of Cheque Cheque No. Drawn on Cheque amount
(Dharmapuri Branch)
28.06.2004 687553 Indian Bank Rs. 3,30,000/-
30.06.2004 526316 Indian Bank Rs. 3,45,000/-
06.07.2004 687554 Indian Bank Rs. 5,50,000/-
The details of the cheque issued by P. Sreenivasan, petitioner in Crl.O.P.No. 6774 of 2006 is as follows:
No. Date of Cheque Cheque No. Drawn on Cheque amount
(Dharmapuri Branch)
09.02.2004 817995 Indian Bank Rs. 4,40,000/-
The details of two cheques issued by M. Vijayakumari, petitioner in Crl.O.P.No. 6775 of 2006 are as follows :
No. Date of Cheque Cheque No. Drawn on Cheque amount
(Dharmapuri Branch)
17.03.2004 683915 Indian Bank Rs. 5,50,000/-
18.03.2004 683916 Indian Bank Rs. 5,52,000/-
It is not in dispute that after the dishonour, the respondent bank issued separate legal notice to the respective petitioner, informing the dishonour
of the cheques and demanding settlement of dues thereon, The complaint relating to Crl.O.P.No. 6773 of 2006 was filed before the trial court with
a delay of 28 days. The complaint relating to Crl.O.P.No. 6774 of 2006 was fifed before the trial court with a delay of 14 days. Similarly, the
complaint relating to Crl.O.P.No. 675 of 2005 has been filed before the trial court with a delay of 3 days. The respondent bank has prayed the
trial court to condone the delay in taking criminal action against the respective petitioners, who were the drawers of the aforesaid cheques.
The short point involved in the criminal original petitions is whether the trial court could take cognizance of the alleged offence u/s 138 rule with
142 of Negotiable Instruments Act, by condoning the delay as stated above.
Mr. V. Ayyadurai, learned Counsel appearing for the petitioner in all the cases would contend that there was no separate affidavit filed by the
respondent / complainant seeking to condone the delay and no enquiry was conducted for condoning the delay, but the learned Judicial Magistrate
has straightaway taken cognizance of the complaint filed after the prescribed period of limitation and issued summons to the petitioners in all the
cases. According to the learned Counsel, the procedure followed by the trial court is not legally sustainable.
Therefore, it should be construed as an abuse of process of court and accordingly, the criminal proceedings, pending before the trial court are
liable to be quashed u/s 482 of the Code of Criminal Procedure. In support of his contention, the learned Counsel cited the following decisions :
Kanhai Raut and Others Vs. Budhan Mahto,
S.V. Arjunaraja v. P. Vasantha 2005 (5) CTC 401
Pradeep and Others Vs. State of Rajasthan and Another,
M. Muraleedharan Vs. M/s. Sreeram Investment Ltd.,
Mr. Sanjay Raghuram and Mr. S.R. Raghuram Vs. Telengana Investments and Finances Ltd.,
Per contra, Mr. M. Sathyanarayanan, learned Counsel appearing for the respondent cited the following decisions:
Suresh Kumar and Others Vs. Firm Kurban Hussain Taiyab Ali and Others,
State of M.P. and Another Vs. Pradeep Kumar and Another,
Hulash Chand Choraria and Others Vs. Union of India (UOI),
This Court in the decision, Mr. Sanjay Raghuram and Mr. S.R. Raghuram Vs. Telengana Investments and Finances Ltd., , has held that the
non-filing of the affidavit, stating cogent reasons for the delay to the satisfaction of the Court is a curable defect and hence, the complaints could not
be quashed. As per this ruling, the complainant shall file an affidavit setting out the reasons for the delay and thereafter opportunity be given to the
accused to counter their reasons assigned in the affidavit accompanied by the petition and to decide the same on merits. With the above
observation, the Criminal Original Petition has been dismissed by this Court.
In the decision, M. Muraleedharan Vs. M/s. Sreeram Investment Ltd., , the Kerala High Court has held that when there is delay in filing the
complaint, the application to condone delay must be made with the affidavit of the complaint to consider the application afresh and in that case, the
Magistrate was directed to consider the application for condonation of delay afresh, if the applicant files his own affidavit in support of his
contention.
In the decision, S.V. Arjunaraja v. P. Vasantha reported in 2005 (5) CTC 401, is not applicable for the facts and circumstances of the case,
since the case referred therein relating to court fees paid after the period of limitation, in a case, filed on promissory note.
In the decision, Suresh Kumar and Others Vs. Firm Kurban Hussain Taiyab Ali and Others, , it has been held that for condonation of delay u/s
5 of Limitation Act, a formal application would not be required, if the facts presented before the Court satisfies the judicial conscience of the Court
that the applicant before it was prevented for sufficient cause in bringing the proceedings well within limitation. If the Court is of the opinion that in
absence of formal application the delay cannot be condoned, then it is the duty of the Court to give opportunity to the applicant before it, to move
an application explaining the cause for delay and seek condonation u/s 5 of Limitation Act.
In the decision, State of M.P. and Another Vs. Pradeep Kumar and Another, , the Hon''ble Supreme Court of India has ruled in a Second
Appeal filed under Order 41 Rule 3-A of C.P.C, that when there is delay and the appeal is preferred without petition to condone the delay, the
court can return the memorandum of appeal as defective and the application can be filed for condonation thereafter, since such defect can be cured
by the party.
In the light of the decisions referred by both the learned Counsel, it is clear that the petition filed without an accompanying affidavit, setting out
reason for the delay, would not be sufficient to quash the proceedings initiated u/s 138 of Negotiable Instruments Act, since it is only a curable
defect.
Therefore, the respondent / complainant shall file an affidavit setting out reasons for the delay in filing the complaint and the trial court, thereafter
shall provide opportunity to the petitioners / accused to raise their defence, by way of filing counter and if the court satisfies that there are adequate
and cogent reasons to condone the delay, the same can be decided on merits. As it is a curable defect, I am of the considered view that the
complaints cannot be quashed, as prayed for by the petitioners.
With the above observation, the Criminal Original Petitions are dismissed. However, the petitioners are at liberty to raise all their defence that
are available as per law before the trial court. Consequently, connected criminal miscellaneous petitions are also dismissed. The Court below is
directed to dispose the case according to law, as early as possible.