S. Riyas @ Riyazudeen vs R. Raja

S. Tamilvanan, J.—The revision petitioner has preferred this revision u/s 397 r/w Section 401 of Criminal Procedure Code, challenging the order dated 28.06.2011 made in Cr.M.P. No. 118 of 2011 in S.T.C. No. 45 of 2011 on the file of the Fast Track Court (Judicial Magistrate) Thanjavur, Thanjavur District. Heard the learned Counsel for the Petitioner and the learned Counsel appearing for the respondent/de-facto complainant.

It is seen that the case was taken on file in S.T.C. No. 45 of 2011 based on the complaint given by the respondent herein u/s 138 of Negotiable Instrument Act.

It is seen that there was a delay of 31 days in filing the petition before the Court below and that was allowed. Subsequently, the petitioner herein filed Crl.M.P. No. 118 of 2011 u/s 258 Cr.P.C. seeking to drop all further proceedings and also to recall the summons issued to the petitioner/accused. In the affidavit filed before the Court below, the petitioner has stated that without providing reasonable opportunity to the petitioner, the delay was condoned by the Court below and if the order is not set aside, it would cause prejudice to the revision petitioner.

Per contra, the learned Counsel appearing for the respondent has stated in the counter that the relief sought for by the petitioner before the Court below was not sustainable. In the impugned order the learned Judicial Magistrate has stated that nearly 11/2 years after filing the STC case, the petitioner herein filed the Crl.M.P. u/s 258 Cr.P.C. to drop all further proceedings in the case and to recall the summons issued against him. It is not in dispute that the revision petitioner has not challenged the order passed by the Court below in condoning the delay. He has challenged the subsequent order after 11/2 years

The learned Counsel for the petitioner draw the attention of this Court to the decision in Agalya Jitendra and others -Vs-Arivalagi reported in 2006 (1) T.N.L.R 140 (Mad), wherein this Court (M. Chockalingam, J.) has held that in a proceeding u/s 138 of Negotiable Instruments Act, issuance of notice from the time of dishonouring the cheque and lodging of complaint from the date of service of notice, are very much essential. Therefore, while condoning the delay in filing the complaint, the accused must be given due opportunity. However, the decision is not applicable to the present revision, since the petitioner has not challenged the earlier order, as found by the Court below.

In the instant case, admittedly, the delay was condoned nearly 11/2 years prior to the date of the impugned order. Without challenging the said order, the petitioner/accused has filed an application in Crl.M.P. No. 118 of 2011 before the Court below to drop all further proceedings and to recall the summons issued. There is no satisfactory explanation on the side of the petitioner for seeking an order to drop all further proceedings initiated u/s 138 of Negotiable Instruments Act and further the decision cited by the learned Counsel for the petitioner is not applicable to the facts and circumstances of the present case.

The relief sought for in the Miscellaneous Petition is limited, wherein the petitioner has asked the Court below to drop all further proceedings and to recall the summons issued by the Court below, for which no legally acceptable reasons have been assigned by the petitioner. In fact, the relief sought for is not legally sustainable as found by the Court below, nearly 11/2 years, after the order condoning the delay. The petitioner herein even without challenging the order has simply filed the Miscellaneous Petition before the Court below to drop all further proceedings and to recall the summons issued by the Court below in a case registered u/s 138 of Negotiable Instruments Act, which is not legally sustainable. Hence, I could find no error or infirmity in the impugned order passed by the Court below, so as to warrant any interference by this Court. In the aforesaid circumstances, the Criminal Revision Petition is dismissed. However, it is open to the petitioner/accused to raise all his legal defence before the Court below in the main case. Consequently, connected M.P.(MD) No. 1 of 2011 is dismissed.