V.M.Sugumar v. P.Renugadevi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.10.2007CORAM:THE HONOURABLE MR.JUSTICE K. MOHAN RAMCrl.O.P.No.8164 of 2006 andC.M.P.No.2155 and 2156 of 2006V.M.Sugumar.. Petitioner-Vs.-P.Renugadevi.. RespondentPrayer: Petition filed under Section 482 of the Code of CriminalProcedure to quash all the proceedings in private complaint in C.C.No.26of 2003 on the file of the Judicial Magistrate No.I, Thiruvannamalai.For Petitioner :Mr. S.KumaradevanFor Respondent : No Appearance.O R D E RThe above criminal original petition has been filed by the accused inC.C.No.26 of 2003 on the file of the Judicial Magistrate No.1,Thiruvannamalai to quash the proceedings in C.C.No.26 of 2003. Though therespondent has been served she is neither appearing in-person nor throughcounsel.2. The respondent herein filed a complaint under Section 138 of theNegotiable Instruments Act (hereinafter referred to as "the Act") allegingthat the petitioner herein borrowed a sum of Rs.50,000/- in the secondweek of September 2002, promising to repay the same within a fortnight.To discharge the said loan the petitioner herein issued a cheque, dated01.10.2002, for a sum of Rs.50,000/- drawn on the Tamil Nadu MercantileBank and when the said cheque was presented for encashment the same wasreturned. A notice of demand was sent for which the petitioner sent areply containing several allegations and in particular the allegation thatthe respondent's husband when he was at the petitioner's office had stolensome cheque leaves of the petitioner and when he was questioned by the https://hcservices.ecourts.gov.in/hcservices/ petitioner he denied the allegation and believing the words of therespondent's husband the petitioner did not take any steps, but takingadvantage of the stolen cheque leaves, the respondent had issued thenotice. Since the petitioner failed to pay the amount due under thedishonoured cheque, after complying with all the legal requirements therespondent herein filed the complaint which was taken on file.3. In the quash petition the petitioner is seeking to quash theproceedings on the ground that although the petitioner is ready to pay theentire amount of Rs.50,000/- to the respondent, the respondent is not co-operating with the petitioner; the respondent is intending to make unjustenrichment by way of using Section 138 of the Act by claiming double theamount of compensation. Except the above said grounds no other groundshave been raised in the quash petition.4. It is seen that on the representation made by the learned counselfor the petitioner, a learned Judge of this Court has referred the matterto the Mediation Centre and since the respondent did not appear before theMediation Centre, the matter has been referred back to this Court andhence the above case has been listed for disposal.5. Heard Mr. S.Kumaradevan learned counsel for the petitioner.6. Learned counsel for the petitioner submitted that the petitioneris willing to pay the sum of Rs.50,000/- to the respondent, but therespondent is not willing to accept the same and that is the reason whythe above quash petition has been filed. 7. At the outset it has to be pointed out that the grounds urged inthe quash petition and the submission made by the learned counsel for thepetitioner are unsustainable. Even assuming that the petitioner waswilling to pay the sum of Rs.50,000/- to the respondent and the respondenthad refused to receive the same, that cannot be a ground for seekingquashing of the proceedings. It is not the case of the petitioner thatthe lower Court is not right in taking cognizance of the complaint filedby the respondent herein. It is not the case of the petitioner that theallegations contained in the complaint does not disclose the commission ofan offence under Section 138 of the Act. Therefore, the above quashpetition is devoid of merits and the same is liable to be dismissed.8. A perusal of the records received from the lower Court shows howthe petitioner was dragging on the proceedings before the trial court.The complaint had been taken on file on 03.02.2003; on 06.02.2004, thecomplainant has been examined and Exs.P-1 to P-6 have been marked andsummons were issued to the other witnesses; on 27.02.2004, P.Ws.2 and 3have been examined and Ex.P-7 has been marked and on that day itself, theevidence on the side of the complainant was closed; on 10.03.2004, theaccused was questioned and he sought time to examine the defence witness;on 11.03.2004, the petition filed by the petitioner under Section 311 ofthe Code of Criminal Procedure was allowed to recall P.Ws.1 and 2 for https://hcservices.ecourts.gov.in/hcservices/ cross-examination and from that date onwards the petitioner was takingtime again-and-again without cross-examining P.W.1 and ultimately on29.10.2004 P.W.1 was cross-examined and the case was adjourned to05.11.2004 for examination of defence witness; from 05.11.2004, on mostof the hearing dates, the petitioner/accused was absent and he was takingadjournment after adjournment, but no defence witness was examined; on31.03.2006 also, at the request of the petitioner/accused, the case wasadjourned to 04.04.2006; on 04.04.2006, the learned Magistrate has notedthat the originals of Exs.P-1 to P-3 were missing and a communication hasbeen sent to the learned District Judge seeking instructions and the casewas adjourned to 13.04.2006. At that stage the above criminal originalpetition has been filed on 08.03.2006.9. It is pertinent to point out that in the quash petition, the abovesaid facts have not been stated. It has not been brought to the notice ofthis Court when the case was taken up for admission that the case has beenadjourned by the trial court for the examination of the defence witnesses.Thus the petitioner has suppressed the fact that the complainant hadclosed his side and the petitioner was going on taking adjournment afteradjournment for the examination of the witness on his side. Had all theabove said facts been brought to the notice of the learned Judge, thelearned Judge would not have entertained the above quash petition at all.The conduct of the petitioner in suppressing the above said material factsis condemnable. 10. In the decision rendered by the Apex Court in the case of AmarChand v. Shanti Bose reported in AIR 1973 Supreme Court 799, wherein inparagraph 17 it is observed as follows:-"17. In our opinion, the High Court was not justified, inthe particular circumstances of this case, in quashing thecharge as well as the entire proceedings that had takenplace before the Magistrate. It is not as if the accusedhad moved the High Court at the earliest stage when thePresidency Magistrate issued sommons to them. Nor had theyapproached the High Court when charges were framed againstthem. The accused had been summoned, after a judicialenquiry by the Chief Presidency Magistrate on December 26,1967, under Sections 120-B/409 and 409 IPC. Before theMagistrate, the evidence, oral and documentary, wasadduced by the complainant in the presence of the accused.On a consideration of such materials, the PresidencyMagistrate framed charges against all the four accused asearly as September 7, 1968. If the case of the accused wasthat the allegations in the complaint do not constitutethe offence complained of or that the complaint has to bequashed for any ground available in law, they should haveapproached the High Court, at any rate, immediately afterthe charges were framed. The records disclose that it wasthe fourth accused, who moved the High Court to quash theproceeding on March 17, 1969, earlier than the other https://hcservices.ecourts.gov.in/hcservices/ accused. Even by that date, several prosecutionwitnesses;. had been examined and they had also beencross-examined by the accused. Several items ofdocumentary evidence had already been let in during thetrial. Only two prosecution witnesses and a court witnessremained to be examined. The proper course at that stageto be adopted by the High Court was to allow theproceedings to go on and to come to its logicalconclusion, one way or the other, and decline to interferewith those proceedings."The above decision squarely applies to the facts of this case. In thiscase also, the trial was almost coming to a close and what remains to bedone was the examination of defence witnesses if any on the side of theaccused and as such at this belated stage it is not proper on the part ofthis Court to entertain the above petition for quashing.11. Therefore, when it is seen from the records that the complainanthas closed his side of the evidence and the petitioner/accused wasdragging on the proceedings by taking adjournment after adjournment toexamine the defence witness, but had failed to examine such witness, theCourt below should have concluded the trial and heard the arguments andpronounced the judgment. But unfortunately the originals of Exs.P-1 to P-3 were missing from the Court. If really the petitioner was honest insettling the dispute by paying the sum of Rs.50,000/- to the respondent,the petitioner could have very well done that before the trial courtitself. There is nothing on record to show that the petitioner made anysuch offer to the respondent before the trial court. No documentevidencing such offer of the petitioner is before this Court tosubstantiate the contentions put forth in the quash petition. Thus thecontention put forth in the quash petition seems to be another attempt onthe part of the petitioner to further drag on the proceedings.12. For the foregoing reasons, the above criminal original petitionfails and the same is dismissed. Since, as pointed out above, thepetitioner was dragging on the proceedings for nearly about three yearsand has suppressed the fact that the examination of the witnesses on theside of the complainant was over and the accused/petitioner herein inspiteof taking several adjournments had not examined any defence witness willshow that the petitioner has not approached this Court with a bona fideintention to settle the dispute as claimed in the quash petition, but hehas approached this Court only to further drag on the proceedings. 13. In such circumstance, I am of the view that the petition shouldbe dismissed with exemplary cost of Rs.10,000/-. The petitioner shall paythe exemplary cost of Rs.10,000/- on or before 09.11.2007 to the 'TamilNadu State Legal Services Authority, Chennai - 104". The learned JudicialMagistrate No.I, Thiruvannamalai, is hereby directed to complete the trialof the case in C.C.No.26 of 2003 within a period of two months from thedate of receipt of a copy of this order without fail and report the sameto this Court. Consequently the connected MPs are closed. https://hcservices.ecourts.gov.in/hcservices/

14. Post this petition on 12.11.2007 for reporting compliance.srkThis petition having been posted on 12.11.2007 forreporting compliance subsequent to the order of this Court dated25.10.2007 and made herein and in the presence of the aforesaid advocates,the Court made the following Order:Pursuant to the order passed in Crl.O.P.No.8164/2006 dated25.10.2007, the petitioner has filed memo to the effect that he hascomplied with the order dated 25.10.2007.The said memo filed by the petitioner today, is recorded.Sd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Judicial Magistrate No.1, Thiruvannamalai.2. The Tamil Nadu State Legal Services Authority, High Court, Chennai - 104.3. The Record Keeper, V.R.Section, High Court, Madras.4. The Section Officer, Crl.Section, High Court, Madras.+1 cc to Mr.S.Kumaradevan,Advocate Sr.No.64430.KM(CO)dcp/26.10gp/27.11Crl.O.P.No.8164 of 2006 and C.M.P.No.2155 and 2156 of 2006