MTHE HONOURABLE MR v. Housing and Urban Development Corporation Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.12.2007C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.38135 of 2004 &Crl.M.P.No.12040 of 2004A.Rathinasamy . . PetitionerVs.Housing and Urban Development Corporation Ltd.,(Coimbatore Retail Financing Unit)Represented by itsDeputy Manager,P.Sundararajan. . . RespondentThe Criminal Revision is filed to quash the proceedings pendingin C.C.No.1015 of 2003 on the file of the learned Judicial MagistrateNo.II, Coimbatore.For petitioner :Mr.P.M.DuraiswamyFor Respondent :Mr.Lakshmanasamy ORDERThe accused in C.C.No.1015 of 2003 on the file of the learnedJudicial Magistrate No.2, Coimbatore has brought forth this criminaloriginal petition under Section 482 Cr.P.C. seeking an order quashingthe proceedings pending against him in the above said Calendar casewhich was initiated based on the private complaint made by therespondent herein for an offence punishable under Section 138Negotiable Instruments Act, 1881.2. The facts relating to the filing of the above said privatecomplaint are as follows;i) The petitioner herein was extended financial assistance bythe respondent corporation by sanctioning a loan of Rs.1,69,000/- on14.01.2003 for the purchase of a house site in Erode. The said amountwas agreed to be repaid in 96 monthly instalments. In discharge ofpart of his liability under the said loan transaction, the petitionerherein had issued six post dated cheques with the followingparticulars;Sl.No.Cheque No.DatedAmountDrawn on11476445/2/03Rs.4065/-Bank of Baroda,Erode21443215/3/03Rs.4065/-Karur Vysya Bank,Erode31443225/4/03Rs.4065/-Karur Vysya Bank,Erode https://hcservices.ecourts.gov.in/hcservices/ Sl.No.Cheque No.DatedAmountDrawn on414432310/5/03Rs.4065/-Karur Vysya Bank,Erode514432410/6/03Rs.4065/-Karur Vysya Bank,Erode614432510/7/03Rs.4065/-Karur Vysya Bank,Erodeii) When all the six cheques were presented by the respondentcorporation for encashment through their bankers, M/s. Canara Bank,Coimbatore on 10.07.2003, the cheques were, however, dishonoured bythe drawee bank and returned with the memo dated 18.07.2003containing the reason "funds insufficient". The fact of dishonour wasintimated to the respondent corporation(complainant) by its bankerson 24.07.2003, pursuant to which, the respondent corporation issued astatutory notice on 30.07.2003 calling upon the accused to make thepayment towards the dishonoured cheques. As the amount covered by thedishonoured cheques was not paid within 15 days from the date ofreceipt of notice, the respondent corporation preferred the saidcomplaint admittedly within 30 days after the expiry of 15 days fromthe date of receipt of the statutory notice. iii) The complaint was taken on file by the learned JudicialMagistrate, No.2, Coimbatore and registered as a Calendar Case inC.C.No.1015 of 2003 after recording the statement of the complainantunder Section 200 Cr.P.C. The present petition is for quashing thesaid criminal proceedings pending on the file of the said Magistrate.3. The grounds alleged are;-i) A single complaint against the dishonour ofsix cheques is not permissible under Section 219Cr.P.C.;ii) There are contradictions regarding thetime and the purpose of the issue of the chequesbetween plaint averments in the suit filed forrecovery of the loan amount and the averments madein the complaint;iii) A bunch of blank cheques, obtained at thetime of disbursement of the loan amount to ensurerepayment, have been misused by filing thecomplaint;iv) As the cheques were issued towards monthlyinstalments, presentation of all the six chequestogether without informing the petitioner led tothe situation wherein there was insufficiency ofthe funds for making payment towards the chequesand hence the petitioner should not be heldresponsible for the bouncing of the cheques; v) The presentation of six cheques forencashment within the moratorium period of sixmonths form the date of disbursement of the loanwas improper and hence the petitioner cannot beheld reasonable for bouncing of all the sixcheques; and https://hcservices.ecourts.gov.in/hcservices/ vi) All the cheques had been issued assecurity for the repayment of the loan regardingwhich a mortgage suit has been filed and hence therespondent has no locus standi to seek compensationunder Section 357 Cr.P.C.4. The respondent herein/complainant has filed a counteraffidavit challenging all the grounds on which the petitioner seeksquashing of the criminal proceedings against him. It has also beencontended by the respondent that there is suppression of materialfacts of the dismissal of the discharge petition filed by the trialCourt and the dismissal of the revision petition filed thereto; thatthe petitioner deliberately suppressed the above said fact knowingfully well that he could not get the relief if the facts were broughtto the notice of this Court and that inherent powers of the HighCourt cannot be invoked to circumvent the bar provided under Section397(3) Cr.P.C. for a second revision to the High Court by the sameperson who preferred a revision before the Sessions Judge.5. The respondent has also contended that since all the sixcheques were presented together for encashment and the same weredishonoured simultaneously and a single notice was issued to thepetitioner, a complaint preferred for the dishonour of all the sixcheques is perfectly in order and that the acts of issuing all thesix cheques formed part of one and the same transaction and hence therevision petitioner/accused can be charged with and tried in onetrial for all such offences.6. This Court heard the arguments advanced by Mr.P.M.Duraiswamy,learned counsel appearing for the petitioner and Mr.R.Priyakumar,learned counsel appearing for the respondent and paid its anxiousconsiderations to the same. The materials available on record werealso perused by this Court. Upon such a hearing and consideration ofthe materials available on record, this Court comes to the conclusionthat the revision petition shall fail for the reasons hereunderappearing.7. First of all the criminal original petition is bound to failon the ground of suppression of material facts. The petitioner hasalso clearly established that the present petition filed by thepetitioner under Section 482 Cr.P.C. suppressing the fact that hisapplication for discharge and the consequent revision petition weredismissed by the learned Judicial Magistrate and the Sessions Judgerespectively is nothing but an attempt to circumvent the bar onfurther revision provided under Section 397(3) Cr.P.C. Admittedly,the petitioner moved an application before the learned JudicialMagistrate praying for an order of discharge and the same wasdismissed after hearing both sides and the revision preferred by thepetitioner herein was also dismissed by the learned Fast Track CourtJudge No.II, Coimbatore. It is pertinent to note that the petitionerhas suppressed the said facts in the present petition. Therefore,this Court has to accept the contention of the respondent that thepetitioner is guilty not only of suppression of material facts butalso of abuse of process of Court and hence the relief sought for inthe present petition has to be negatived. https://hcservices.ecourts.gov.in/hcservices/

8. Regarding the scope of inherent power of the High Court underSection 482 Cr.P.C. there are several judgments to the effect thatthough a second revision to the High Court at the instance of thesame person is bared under Section 397(3) Cr.P.C., the inherent powerunder Section 397(3) Cr.P.C. can be invoked if the circumstances ofthe case so warrant. But it has also been reiterated that theinherent power should be used sparingly and with circumspection. Theinherent power of the High Court provided under Section 482 Cr.P.C isintended to be used against the abuse of process of law, to preventmiscarriage of Justice and to see that the ends of justice are notput in jeopardy. The power which is intended to prevent the abuse ofprocess of law and miscarriage of justice should not be allowed to bemisused. The facts and circumstances of the case on hand indicatethat the filing of the present petition under Section 482 Cr.P.C. isan example of abuse of process of Court. Hence, this Court is verymuch convinced that the petition is bound to fail on the ground thatthe provision meant for preventing abuse of process of Court andmiscarriage of Justice is sought to be used as a means by the presentrevision petitioner for abusing the process of Court.09. Regarding merits of the case, even though the petitioner hasraised several grounds in support of his prayer for quashing thecriminal proceedings pending against him on the file of the learnedJudicial Magistrate No.2, Coimbatore, the learned counsel for thepetitioner confined his arguments to the grounds 1 to 3 alone. Thegrounds of attack given up by the learned counsel for the petitionerat the time of advancing arguments are:-1) presentation of all the cheques within thealleged period of moratorium;2) contradictions regarding the time andpurpose of issuing the cheques; and3) presentation of all the six chequestogether for encashment without intimation to thepetitioner so as to enable him to make arrangementswith the bank for honouring all the cheques. Perhaps considering the weakness and legal un-sustainability of thesaid grounds, the learned counsel for the petitioner has chosen notto advert to the above said grounds. Therefore, it is unnecessary todeal with the said grounds and suffice to refer to the other groundson which arguments have been advanced on behalf of the petitioner. 10. It is the admitted case of both parties that all the sixcheques were post-dated cheques and the same were handed over to therespondent herein in discharge of the petitioner's liability towardsthe respondent in respect of the loan transaction and that thecheques were issued for discharge of the debt/liability of thepetitioner on the loan transaction. Whether the demand for repaymentcould be made within the period of six months from the date ofdisbursement of the loan and whether there is any agreement betweenthe parties for providing a moratorium of six months from the date ofdisbursement of the loan are all pertaining to the civil suit, apart https://hcservices.ecourts.gov.in/hcservices/ from the fact that the petitioner has not proved that his liabilityto repay the loan amount had not arisen till the expiry of six monthsfrom the date of disbursement of the loan. Even assuming, withoutaccepting, that such moratorium period was agreed upon by theparties, there is absolutely no prohibition for the debtor to makepayments in discharge of the debt even during the alleged moratoriumperiod as the same is nothing but a concession available to thedebtor. There are ample evidence and even admission by the petitionerthat the cheques in question were issued for the discharge of thedebt and the discharge of the liability of the petitioner under theloan transaction. Therefore, without any hesitation, this Court comesto the conclusion that the dishonour of the cheques squarely comeswithin the mischief of Section 138 Negotiable Instruments Act, 1881.11. The further contention of the learned counsel for thepetitioner is that the respondent having chosen to file a mortgagesuit for recovery of the loan amount with interest, was not entitledto proceed with the criminal case for the dishonour of the cheques.It is Trite law that pendency of a suit for enforcing a civil rightis not a bar for prosecuting the person for the same act if itamounts to a punishable offence. Though there is no prohibition forprosecuting the drawer of the cheque while simultaneously proceedingagainst him to enforce his civil liability, there is some substancein the contention that the respondent cannot be awarded compensationunder Section 357 Cr.P.C. as he has already instituted a suit forrecovery of the amount due under the loan transaction. However, thereis no prohibition for awarding compensation under Section 357 Cr.P.C.in cheque-dishonour cases on the ground of pendency of civil suit forrecovery of the debt in discharge of which the dishonoured chequeshave been issued. Moreover, the pendency of a suit, decree if anypassed in the civil suit and the fact of satisfaction of the decreeor claim are all relevant factors to be taken into account for takinga decision as to whether any compensation has to be awarded underSection 357 Cr.P.C. and if so, what amount has to be awarded. Thesaid question shall arise for consideration only after finding theaccused guilty of the offence charged with. Hence, the contention ofthe learned counsel for the petitioner that the respondent cannotmaintain a claim for compensation under Section 357 Cr.P.C. in thecriminal proceedings during the pendency of the civil suit has got tobe discountenanced.12. The further contention of the learned counsel for thepetitioner, a vital one, is that the dishonour of each cheque and thesubsequent failure to make payment towards the cheque will amount toa separate and distinct offence and hence all the six offences inrespect of six cheques cannot be tried together, as Section 219Cr.P.C. does not permit trial of more than three offences in one andthe same trial. Of course Section 219 Cr.P.C. says that not more thanthree offences of the same kind committed within a span of a year canbe tried at one trial. But Section 220 Cr.P.C provides that, if anyseries of acts so connected together as to form the same transactioncontains more offences than one, then he may be charged with andtried at one trial for every such offence. For the sake ofconvenience Sub Clause (1) of Sections 219 and 220 Cr.P.C. are https://hcservices.ecourts.gov.in/hcservices/ reproduced hereunder;219. Three offences of same kind within yearmay be charged together:-(1)When a person is accused of more offencesthan one of the same kind committed within thespace of twelve months from the first to the lastof such offences, whether in respect of the sameperson or not, he may be charged with, and triedat one trial for, any number of them not exceedingthree.. . . .220.Trial for more than one offence._(1) If, in one series of acts so connectedtogether as to form the same transaction, moreoffences than one are committed by the sameperson, he may be charged with, and tried at onetrial for, every such offence."13. In the present case, apart from the fact that all the sixcheques were issued in respect of one and the same transaction, allthe cheques were presented together for encashment and weredishonoured simultaneously. A single notice was issued by therespondent to the petitioner informing him of the bouncing of thecheques and calling upon him to make payment for the bounced cheques.An offence punishable under Section 138 Negotiable Instruments Act,1881 is completed only on the failure of the drawer of the cheque tomake payment within 15 days after the receipt of notice contemplatedunder Section 138 Proviso (b) of the Negotiable Instruments Act,1881. 14. In a similar case in MANJULA vs. COLGATE PALMOLIVE (INDIA)LIMITED, 2006 (5) CTC 303 a Division Bench of this Court, afterreferring to several judgments of various High Courts, has held thatthe dishonour of sixteen cheques drawn on different dates whenpresented together for payment and the issuance of a single lawyer'snotice demanding payment of the amount towards all the dishonouredcheques should be construed as a bundle of facts forming a sequenceof events will squarely come under the purview of Section 220(1)Cr.P.C and hence is saved from the mischief of Section 219 Cr.P.C.The observations made by the Division Bench of this Court are foundin paragraphs 13 and 16. They are reproduced as under:-"13. The very object of Section 219, is toprevent miscarriage of justice by clubbingtogether a number of offences and making itimpossible for the accused to defend them.Sections 219 and 220, Cr.P.C. lay down differentand distinct exception to the general rulecontemplated under Section 218 Cr.P.C. in framingcharges. We are of the view that the number ofthree offences underlined in Section 219 of theCode cannot control Section 220(1) of the Code. . . . https://hcservices.ecourts.gov.in/hcservices/ . . .16. In the case on hand, though the act ofissuance of 16 cheques was on different dates, inview of the fact that a demand was made by issuinga common notice, the complaint cannot be said tobe vitiated. To put it clear, though the giving ofcheques by the accused to the complainant may beon different dates, all those acts of giving thosecheques were merged together to form the sametransaction viz., the presentation of the chequestogether was on one particular date. In view ofthe fact that demand was also made by thecomplainant on the dishonouring of the cheques bygiving one lawyer's notice and not severaldemands, we are of the view that the accused maybe charged and tried at one trial for several suchoffences because the series of acts are so inter-linked or inter-connected together so as to formthe same transaction of dishonouring the cheques,therefore, it cannot be said that the complaint isvitiated."15. The above said observation squarely applies to the case onhand. As the contention raised by the petitioner is the one coveredby the aforesaid decision of the Division Bench of this Court,without any hesitation, this Court comes to the conclusion that thecontention raised by the learned counsel for the petitioner in thisregard is liable to be rejected as untenable. Viewed from any point,there is no merit in the criminal original petition seeking quashingof the criminal proceedings initiated against him in C.C.No.1015 of2003, on the file of the learned Judicial Magistrate, No.2,Coimbatore. The petitioner has miserably failed to make out a casefor quashing the said criminal proceedings and the criminal originalpetition filed under Section 482 Cr.P.C. deserves to be dismissed.Accordingly, this Criminal Original Petition shall stand dismissed.Consequently, connected miscellaneous petition is closed.jikr Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Judicial Magistrate, No-1Coimbatore.KG (co)sg 24/01/08Crl.O.P.No.38135 of 200420.12.2007