V.Kalpana v. M.Palani

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2009CORAM:THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMARCRL.O.P.No.3759 of 2009and M.P.No.1 of 2009V.Kalpana .. Petitioner/Accused Vs.M.Palani .. Respondent/ComplainantPRAYER: Criminal Original Petition filed under Section 482Cr.P.C. to call for the records in C.C.No.137/2007 on the file ofthe Judicial Magistrate IV, Vellore and to quash the same. For Petitioner : Mr.J.Kathiresan ORDERThe accused in C.C.No.137/2007 on the file of the learnedJudicial Magistrate No.V, Vellore has come forward with thepresent petition under Section 482 Cr.P.C for quashing the abovesaid criminal proceedings.2. The submissions made by Mr.J.Kathiresan, learned counselfor the petitioner were heard. The petition and the documentsproduced along with the petition were also perused.3. The above said case, namely C.C.No.137/2007 was institutedon the file of the learned Judicial Magistrate No.IV, Velloreagainst the petitioner herein based on the complaint of therespondent herein preferred under Section 200 Cr.P.C for analleged offence punishable under Section 138 of the NegotiableInstruments Act, 1881.4. The petitioner has come forward with the present petitionfor quashing the above said criminal proceedings initiated againsther on the ground that the complaint itself is an abuse of processof court. It is the contention of the petitioner that the wife ofthe respondent herein, as a client of the petitioner, used tovisit petitioner's house regularly; that the petitioner's husbandis running a primary school; that her cheque book and the schooldocuments were missing from 22.09.2006 and she preferred a https://hcservices.ecourts.gov.in/hcservices/ complaint on the file of Pallikonda Police Station, Velloredistrict informing the same to the police; that afterinvestigation, she was issued a 'not traceable' certificate on30.09.2006; that thereafter she received a lawyer's notice onbehalf of the respondent herein, as if she had given a cheque fora sum of Rs.50,000/- and the same was dishonoured when presentedfor encashment and that only thereafter she came to know that thecheque book and the school documents would have been stolen bywife of the respondent herein. It is the further contention ofthe petitioner that though a 'not-traceable' certificate wasissued on 30.09.2006 itself, she again preferred a complaintagainst the respondent herein and his wife Malarvizhi for thetheft of the cheque book and school documents; that she had toapproach this court by way of a petition in Crl.O.P.No.7525/2007to get an order on 20.03.2007 directing the police to register acase and investigate the same in accordance with law and that onlypursuant to the said direction, a case was registered against therespondent herein and her husband in Cr.No.134 of 2007 on the fileof Pallikonda Police Station. The petitioner has also contendedthat one of the cheque leaves detached from the cheque book stolenby the wife of the respondent was filled up, presented forcollection and a case has been instituted after complying with theformalities of instituting a private complaint for an offencepunishable under Section 138 of the Negotiable Instruments Act,1881. According to the petitioner the complaint is nothing but anabuse of process of court.5. The petitioner has sought for an order quashing thecomplaint on yet another ground also. According to thepetitioner, the respondent should have sent the statutory noticeunder Section 138 proviso (b) within 15 days from the date ofreceipt of intimation of dishonour of the cheque and that sincethe statutory notice was issued beyond the said period of 15 days,the complaint itself was incompetent and barred by limitation.6. This court, upon hearing the submissions made by thelearned counsel for the petitioner in respect of the above saidcontentions raised by the petitioner in this petition and afterperusing the petition and the documents filed along with thepetition in the form of a typed set of papers, comes to theconclusion that all the allegations made by the petitioner in thepetition can be raised as plea of defence before the trial courtand that they cannot be the grounds on which the complaint itselfcan be put to death at the threshold, as they touch the merits ofthe case. No procedural irregularity has been alleged in thepetition. 7. One of the grounds alleged in the petition is that thecomplaint itself is barred by limitation since according to thepetitioner, the statutory notice under Section 138 proviso (b) ofthe Negotiable Instruments Act, 1881 was not given within the timestipulated therein. According to the petitioner, the time allowed https://hcservices.ecourts.gov.in/hcservices/ for issuing the statutory notice is 15 days from the date ofreceipt of intimation of dishonour of the cheque. In support ofthe contention of the petitioner, reliance was made on thejudgment of a learned single judge of this court in S.A.Balan Vs.G.Kaliappan reported in 2008 (5) CTC 425. Relying on the decisionmade by the Hon'ble Supreme Court in M/s.Uniplas India Ltd. andothers v. State (Govt. of NCT of Delhi) and another reported in2001 (3) CTC 309, wherein it had been observed as follows:"Negotiable Instruments Act, 1881, Section 138 and142(b) – Cause action – What is – Cause of action wouldcommence on payee making demand on drawer by givingnotice in writing demanding payment on dishonoured chequewithin 15 days of information of such dishonour – Crucialissue would be whether notice was issued before expiry of15 days or after expiry of 15 days of information ofdishonour – No cause of action arises if no notice issent after 15 days – Any notice sent after expiry of 15days need not snowball into cause of action.(Paras 12, 13& 14)"The learned judge observed that the time of limitation for issuingstatutory notice was 15 days from the date of receipt ofintimation of dishonour of the cheque from the bank. 8. Relying on the said observation made by the learned singlejudge of this court in the above said case, namely S.A.Balan Vs.G.Kaliappan reported in 2008 (5) CTC 425, the petitioner hascontended that since the statutory notice in the case on hand wasissued after the expiry of a period of 15 days from the date ofreceipt of intimation from the bank, no cause of action had arisenand the complaint itself is barred by limitation. With greatrespect to the Hon'ble single judge, I am not in a position toaccept the correctness of the view expressed in the above saidcase. Of course, it is true that judicial propriety requiresreferring of the issue to a larger bench when a co-ordinate benchwould differ from the view of another coordinate bench in respectof a proposition of law. But when the decision of the earlier co-ordinate bench is per incurium, it shall not be necessary to referthe question to a larger bench. Section 138 proviso (b) ofNegotiable Instruments Act, 1881, as it was originally enacted hadprescribed only 15 days period from the date of receipt ofinformation from the bank regarding the return of the cheque, forthe issue of the statutory notice under the said proviso.However, an amendment was brought subsequently by Act 55 of 2002with effect from 06.02.2003 prescribing 30 days as the periodallowed for issuing statutory notice. Though the cheque concernedin the said case was dishonoured subsequent to the above saiddate, the Hon'ble single judge in the said case, without advertingto the amendment introduced and brought to force with effect from06.02.2009, observed that the limitation for issuing statutorynotice was only 15 days. https://hcservices.ecourts.gov.in/hcservices/

9. The decision of the Hon'ble Supreme Court relied on thereinhad been rendered in 2003 itself, namely prior to the introductionof the said amendment. The ratio decided by the Hon'ble SupremeCourt therein, namely in M/s.Uniplas India case was that in casethe statutory notice was not issued within the period allowedunder proviso (b) to Section 138, no cause of action would ariseand that any notice sent after the expiry of the said statutoryperiod, need not snow ball into a cause of action. While applyingthe said ratio to the changed circumstances, namely a dishonour ofcheque after the amendment prescribing a longer period (30 days)for issuing statutory notice was brought to force, it wasinadvertently observed that the period of limitation for issuingstatutory notice was 15 days. As the said decision was renderedwithout considering the change made in law, the same has to beheld per incurium and hence shall not be a binding precedent.10. In this case the cheque was returned without payment on05.02.2007. The intimation regarding the return of the chequeunpaid was received by the respondent herein, as per the avermentmade in the petition, on 05.02.2007 itself. Within 30 daysthereafter the statutory notice could have been given.Admittedly, the statutory notice under Section 138 proviso (b) ofNegotiable Instruments Act, 1881 was issued on 26.02.2007 i.e.well within the period of 30 days prescribed in the said proviso.Therefore, the contention of the petitioner that no cause ofaction did arise from the issue of the said notice, cannot beaccepted. The prayer for quashing based on the above saidcontention deserves to be rejected as untenable.11. Let us now consider the other grounds on which thepetitioner seeks quashing of the complaint. It is not in disputethat the cheque in question pertains to the account maintained bythe petitioner in her bank. It is also not in dispute that thecheque contains her signature. It is also not in dispute that thesaid cheque, when presented for encashment was returned unpaidwith a dishonour note "funds insufficient". Statutory notice wasalso given within the time prescribed by the statute. Thecomplaint has been preferred after a period of 15 days from thedate of receipt of statutory notice received by the petitionerherein. Therefore, no procedural defect can be found in theinstitution of the case on private complaint. It is also not thecase of the petitioner that the averments found in the complaintare not enough to disclose the commission of an offence punishableunder Section 138 of the Negotiable Instruments Act. On the otherhand, she has come forward with a plea that there was foul play onthe part of the respondent herein and the complaint itself hasbeen preferred based on a stolen cheque leaf. As pointed outsupra, the said contention, can at best be raised as a plea ofdefence before the trial court and cannot be the basis on whichthe petitioner can seek quashing of the complaint unless moreconcrete materials are placed. https://hcservices.ecourts.gov.in/hcservices/

12. The petitioner relies on the documents produced as copiesof a complaint lodged with Pallikonda Police Station on 22.09.2006and a "not traceable" certificate issued by the police on30.09.2006. The petitioner is an advocate. She knows very wellthe consequences that may flow, if a missing cheque book comes inthe hands of other persons. Therefore, it is quite improbablethat the petitioner would have kept the cheque leaves signed.Secondly, if at all such signed cheque leaves were found missing,besides giving a complaint to the police, she would not haveforgotten to give instructions to her banker not to honour suchcheque/cheques, if presented for collection. In fact the chequenumbers have been furnished in the alleged complaint given to thepolice on 22.09.2006. Therefore, the petitioner cannot state thatshe had forgotten the numbers of the cheque leaves and hence shewas not able to instruct the bankers, with required particulars,not to honour the cheque/cheques, if presented for encashment. 13. Apart from the same, the complaint stating that a chequebook containing 18 cheque leaves was missing, is said to have beenlodged with Pallikonda Police Station on 22.09.2006. No case wasregistered and no receipt was given. The petitioner has notproduced any receipt to show that such a complaint was lodged.However, she was able to obtain a certificate from the Sub-Inspector of Police, Pallikonda Police Station on 30.09.2006 tothe effect that the missing articles could not be traced. Withina span of 7 days, the Sub-Inspector of Police gave such a 'nottraceable' certificate. Such a certificate does not containeither a crime number or CSR number or the particulars of thereceipt issued for the complaint. Therefore, there is possibilityof holding that the petitioner, being an advocate, could haveexerted influence with the Sub-Inspector of Police and obtainedsuch a certificate. Even after obtaining such a "not traceable"certificate from the police, the petitioner has not chosen toissue any instruction to the bank not to honour those cheques, ifpresented for encashment. That itself will make it possible tomake an inference that the complaint and the certificate couldhave been created antedating the same after the statutory noticewas issued by the respondent to the petitioner herein. 14. The statutory notice under Section 138 proviso (b) wasissued by the respondent on 26.02.2007 but the petitioner did notreceive the said notice and same was returned. On the other hand,the petitioner has chosen to lodge a complaint with the Inspectorof Police, Pallikonda police station on 03.03.2007. Immediatelythereafter she approached this court by way of a petition underSection 482 Cr.P.C in Crl.O.P.7525/2007 and obtained an orderdirecting registration of a case based on such complaint. Onlythereafter a case was registered on the file of Pallikonda policestation in Cr.No.134/2007 for an offence under Section 380 IPCagainst the respondent herein and her husband. All thosedocuments have been brought into existence only after the receipt https://hcservices.ecourts.gov.in/hcservices/ of the statutory notice issued by the respondent herein. Whetherthose documents are genuine or were created for the purpose ofdefending the case preferred by the respondent herein against thepetitioner herein for an offence under Section 138 of theNegotiable Instruments Act, has got to be tried and decided.Those documents are not clinching documents to come to theconclusion that the criminal case was instituted against thepetitioner based on a stolen cheque leaf. The said contention ofthe petitioner should be canvassed as a plea of defence in thecriminal case instituted against her. The improbabilities of thecontentions raised by the petitioner herein has been highlightedonly to show that the same cannot be the ground on which thecomplaint itself can be quashed. The petitioner has not provedthat the institution of the case against her for an offence underSection 138 of the Negotiable Instruments Act was an abuse ofprocess of court.15. For all the reasons stated above, this court comes to theconclusion that the petitioner has not made out a case forquashing of the criminal proceedings against her instituted onprivate complaint for an alleged offence punishable under Section138 of the Negotiable Instruments Act and that this petitiondeserves to be dismissed, even without notice to the respondent.16. In the result, this petition is dismissed. Consequently,the connected miscellaneous petition is also closed. However, byway of abundant caution, it is made clear that any observationmade in this order shall not be construed to be a view expressedon the merits of the case. The trial court shall consider thecase on its own merit without being influenced by any of theobservations made herein.Sd/Asst.Registrar/true copy/Sub Asst.Registrarasr/To1.The Judicial Magistrate No.IV,Vellore.2.The Chief Judicial Magistrate,Vellore.RSM(CO)km/27.7. CRL.O.P.No.3759 of 2009