Sri Vasudharini Enterprises by its Managing Partner R.B.Jayakumar, Chennai-492 v. K.Sundar Ramanujam

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.Nos.31536 to 31538/2006Cr.MP.Nos.1,1,1/2006 & 1,1,1/20071.Sri Vasudharini Enterprises by its Managing Partner R.B.Jayakumar, Chennai-492.R.B.Jayakumar3.R.B.Ravikumar4.R.D.Krishnan5.R.B.RajaPetitioners in allOPS/Accused 1 to 5 Vs1.K.Sundar RamanujamRespondent in Cr.OP.No.31536/06/Complainant2.P.PrabuRespondent in Cr.OP.No.31537/06/Complainant3.J.RamadossRespondent in Cr.OP.No.31538/06/ComplainantPrayer:- These Criminal Original Petitions are filed under section482 of Crl.Procedure Code to call for the records in CC.Nos.1282,1283 and 84 of 2005 on the file of the XVII Metropolitan Magistrate,Saidapet, Chennai and quash the same as null and void.For Petitioners:Mr.K.V.RameshFor Respondents:Mr.S.UdayakumarCOMMON ORDER Since the Petitioners and the issue involved in theseCriminal Original Petitions are one and the same, these CriminalOriginal Petitions are disposed of by this common order.2. The Petitioners, who are arrayed as A1 to A5, hereinseek to quash the criminal proceedings in CC.Nos.1282, 1283 and 84of 2005 on the file of the XVII Metropolitan Magistrate, Saidapet,Chennai for the offence under Section 138 of the NegotiableInstruments Act.3. The Respondents filed the said private complaintsagainst the Petitioners for the offence punishable under Section 138of the Negotiable Instruments Act in respect of dishonour of chequesissued by the Petitioners. https://hcservices.ecourts.gov.in/hcservices/

4. As per the complaints given against the Petitioners, itis seen that the 1st petitioner is the Partnership Firm and thePetitioners 2 to 5 are its Partners. The 2nd accused/2nd Petitionerin the capacity of Managing Partner of the A1 Partnership Firm andalso on behalf of the other Partners approached the complainants toextend loan facility for the purpose of sub contract work on behalfof M/s.Afcons Infrastructure Limited in respect of the Work Orderfor quarrying and supplying of sized spalls at Vallakottai yard forPoonamallee Kancheepuram Road Works and borrowed a sum of Rs.8 lakhsand issued cheques for the said liability. When the said chequeshave been presented by the complainant for encashment, they werereturned with an endorsement "funds insufficient". Thereafter, thecomplainants had issued a statutory notice on 3.4.2004, calling uponthe accused/petitioners to pay the amount covered under the chequeswithin 15 days. The Petitioners received the said notice on8.4.2004, but neither paid the amount nor replied to the saidnotice. Hence, the Respondents have filed the present complaints.5. The details of cheques in question in all theseCriminal Original Petitions are given below:-Cr.OP.31536/06Two cheques bearing Nos.027396 dated 16.10.20034for Rs.1,00,000/- and 021214 dated 26.03.2004 forRs.7 lakhs drawn on Centurian Bank,Sriperumbudur.Cr.OP.31537/06Two cheques bearing Nos.020549 dated 26.3.2004 forRs.2 lakhs and 020550 dated 26.03.2004 for Rs.2lakhs drawn on Centurian Bank, Sriperumbudur.Cr.OP.31538/06Two cheques bearing Nos.020548 dated 26.3.2004 forRs.2 lakhs and 020547 dated 26.03.2004 forRs.50,000/- drawn on Centurian Bank,Sriperumbudur.6. It is not in dispute that the cheques in question havebeen returned with an endorsement "funds insufficient" on 10.3.2004,29.3.2004, 28.3.2004 and 30.3.2004 respectively and the Respondentsissued a statutory notice on 3.4.2004, which has been received bythe Petitioners on 8.4.2004. The complaints have been filed on31.5.2004 and summons had been issued to the Petitioners. There isa delay of seven days in filing the complaints. Admittedly, nopetition has been filed to condone the delay, but the learnedMetropolitan Magistrate has straightaway taken cognizance of thecomplaints for the alleged offence under Section 138 of theNegotiable Instruments Act, without being satisfied himself as towhether there was sufficient cause to condone the delay.7. Mr.K.V.Ramesh, learned counsel for the Petitionerscontended that ex-facie the complaints were barred by limitation, asthere was no application for condoning the delay and the cognizancetaken by the learned Metropolitan Magistrate is unsustainable. Insupport of his contention, the learned counsel relied on thedecisions of this court rendered in the cases of Thiruchengode https://hcservices.ecourts.gov.in/hcservices/ Agricultural Producers Cooperative Marketing Society Limited andothers Vs. Employee's State Insurance Corporation by the InsuranceInspector (Legal) [2009-2-CLT-380] and S.Saravanan Vs.P.C.Viswanathan [2008-2-TLNJ-363-Criminal], wherein it is held thatin the absence of satisfactory explanation for the delay caused inpreferring the complaint as stipulated in the Negotiable InstrumentsAct, the proceedings are liable to be quashed. 8. In view of the proviso to Section 142(b) of theNegotiable Instruments Act, it has become permissible for thecomplainant to file an application for condoning the delay oncomplaint being filed beyond the period of limitation and on suchapplication being filed, the learned Magistrate has a discretionto condone the delay, if sufficient cause is made out for not makingthe complaint within the period prescribed in clause (b).Admittedly, in this case, the complaint has been taken on filestraightway, though there was a delay of 7 days in filing thecomplaint without following the procedure prescribed under Section142(b) of the Negotiable Instruments Act. 9. The complainants have not filed any application settingout the reasons for the delay caused. When an application forcondonation of delay is filed, notice obviously will have to beissued to the other side before the order is passed either allowingthe application or declining the same. Undoubtedly, a right accruesin favour of the accused when there is a delay in lodging thecomplaint. But that right has been lost to the Petitioner. It ittrue that it is only a matter between the complainant and the Court,but it is a question of deciding the valuable right of the accused,who cannot be shut out from such proceedings. Though the accused isout of picture till the complaints are taken cognizance of by theCourt, an indefeasible right of the accused is found incorporatedunder Section 142(b) of the Negotiable Instruments Act. Therefore,the court by exercising its discretion under the proviso to theaforesaid provision of law is empowered to make a dent in such rightof the accused by extending the period of limitation on satisfyingitself of the reasons assigned by the complainant. Therefore, thecomplainant should file an affidavit, setting forth the reasons forthe delay and the discretion of the court to condone such a delaycan be exercised only after affording an opportunity to the accusedto contest the reasons assigned by the complainant. But, in theinstant case, the learned Judicial Magistrate, before takingcognizance and recording sworn statement, has not given anopportunity for the Petitioners/accused to contest the application,which is opposed to principles of natural justice.10. Mr.S.Udayakumar, learned counsel for the Respondentdrew the attention of this court to the decision of this courtrendered in the case of R.Kanthimathi and two others Vs. Bank ofIndia, Dharmapuri Branch by its Senior Manager, Vijayaragaran,Dharmapuri [2007-4-CTC-524], wherein liberty was given to thePetitioner to file a petition to condone the delay and also directed https://hcservices.ecourts.gov.in/hcservices/ the trial court to provide opportunity to the Petitioners to raisetheir defence by way of filing counter and thereafter, if the courtsatisfies that there are adequate and cogent reasons to condone thedelay, the same can be decided on merits. He submitted that as itis a curable defect, in this case the complainants may be given anopportunity to file an application to condone the delay. In thesaid case, there was already a petition to condone the delay wasfiled, but without filing a supporting affidavit and therefore, thiscourt gave liberty to the Respondent/complainant to file anaffidavit, setting out the reasons for the delay and directed thetrial court to provide opportunity to the accused to file hiscounter. But, in the present case, no application had been filedand straightway the learned Magistrate has taken cognizance of theoffence without even satisfying himself as to whether the complainthas been filed within the limitation period as prescribed underSection 138 of the Negotiable Instruments Act. 11. In a recently reported decision rendered in the caseof Subodh S.Salaskar Vs. Jayaprakash M.Shah and another [AIR-2008-SC-3086] the Honourable Supreme Court has held that the provisionsof the Negotiable Instruments Act being special in nature,conferring jurisdiction upon the court to condone the delay underSection 142 of the Negotiable Instruments Act, is a substantiveprovision and not a procedural one and therefore, it could not begiven a retrospective effect or retroactive operation. It is heldthus:-"24. Ex facie, it was barred by limitation. Noapplication for condonation of delay was filed. Noapplication for condonation of delay was otherwisemaintainable. The provisions of the Act being specialin nature, in terms thereof the jurisdiction of thecourt to take cognizance of an offence under Section 138of the Act was limited to the period of thirty days interms of the proviso appended thereto. The Parliamentonly with a view to obviate the aforementioneddifficulties on the part of the complainant insertedproviso to Clause (b) of Section 142 of the Act in 2002.It confers a jurisdiction upon the court to condone thedelay. It is, therefore, a substantive provision andnot a procedural one. The matter might have beendifferent if the Magistrate could have exercised itsjurisdiction either under Section 5 of the LimitationAct, 1963 or Section 473 of the Code of CriminalProcedure, 1976. The provisions of the said Acts arenot applicable. In any event no such application forcondonation of delay was filed. If the proviso appendedto Clause (b) of Section 142 of the Act contained asubstantive provision and not a procedural one, it couldnot have been given a retrospective effect. Asubstantive law, as it is well settled, in absence of anexpress provision, cannot be given a retrospective https://hcservices.ecourts.gov.in/hcservices/ effect or retroactive operation."12. In view of the law laid down by the Honourable SupremeCourt, the proviso to Clause (b) of Section 142 of the NegotiableInstruments Act has been inserted, conferring jurisdiction upon thecourt to condone the delay, in case if the complaint was not filedwithin the limitation period of 30 days in terms of the provisoappended thereto. As the said provision has been held to be asubstantive provision and not a procedural one, the complaint beingfiled beyond the period of limitation, it cannot be entertained byallowing the Respondents to file an application after it has beentaken cognizance of by the learned Magistrate. That being so, thecognizance taken by the learned Judicial Magistrate is without anysanction of law and therefore, I am of the considered opinion thatit deserves to be quashed and accordingly, it is quashed. TheseCriminal Original Petitions stand allowed. Consequently, theconnected MPs are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm To:1.The XVII Metropolitan Magistrate, Saidapet, Chennai2.-do-thro' The Chief Metropolitan Magistrate, Egmore,Chennai-8.3.The Public Prosecutor, High Court, Madras +3ccs to Mr.R.V.Ramesh,Advocate Sr34317,34318,34329+3ccs to Mr.S.Udayakumar, Advocate Sr 33640,33641,33639RSM(CO)km/30.7.Crl.OP.Nos.31536 to 31538/2006