Mr. Kishore Shankar Singapurkar vs State Of Maharashtra And Mafatlal ...
2003 Latest Caselaw 528 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioner is hereby taking exception to the order passed by the Additional Chief Metropolitan Magistrate, 37th Court, Mumbai, dated 24/3/1999, whereby the said Court took cognizance of a complaint filed by respondent No. 2 an issued process against the petitioner in context with provisions of Section 138 of Negotiable Instruments Act (hereinafter referred to as Act for convenience).

2. The respondent No. 2 filed a complaint by alleging that the petitioner issued following cheques to him and when they were presented for encashment, were dishonoured.

1. Cheque No. 58534, dated 15.3.1998 for Rs. 17,005/-

2. Cheque No. 58535, dated 15.4.1998 for Rs. 17,005/-.

3. Cheque No. 58536, dated 15.5.1998 for Rs. 17,005/-.

4. Cheque No. 58537, dated 15.6.1998 for Rs. 17,005/-.

5. Cheque No. 58538, dated 15.7.1998 for Rs. 17,005/-.

The respondent No. 2 complained, that by dishonouring of the cheques the petitioner committed the offence punishable under Section 138 of the Act. The learned Magistrate took cognizance of the said complaint and by the impugned order issued the process against the petitioner and that is the subject matter of challenge in this writ petition.

3. Some facts need to be quoted for the purpose of unfolding the crux of the controversy. There was an agreement between the petitioner and respondent No. 2 on 6/10/1998 in respect of motor vehicle, Maruti Esteem bearing No. MP-09 M-5573. By the said agreement, respondent No. 2 agreed to let on hire the said vehicle to the petitioner on monthly hire charges of Rs. 17,005/-. The petitioner happens to be the proprietor of one M/s. Kishore Foot wear, Milkano Shoes. In the year 1986-1987, the Government of Maharashtra had floated a scheme specifically for the upliftment of cobblers. By virtue of the said scheme the cobblers were required to form a Society and each individual cobblers were entitled to a loan of Rs. 25,000/-. Number of cobblers came together and formed association and took the loan facilities under the said scheme. It was alleged that the money to taken was used for some other purposes and therefore, a crime bearing C.R. No. 95 of 1996 came to be registered by GBCB CID, Mumbai and pursuant to that, the petitioner came to be arrested and in the course of the investigation of the said crime, all bank accounts of the petitioner were frozen and the car in question was seized and kept in the Courtyard of the concerned Police Station. Thus, the said car was not in use of the petitioner when the present crime is alleged to have taken place, as per the case of the complainant.

4. In context with freezing of the bank accounts and sealing of Office, a petition was moved before this Court, which was initially heard by the Single Bench and it was referred to the Division Bench consisting V.P. Tipnis and Palkar, JJ who quashed the seizing of the car, sealing of office and freezing of bank accounts of the petitioner. It was challenged in the Supreme court and the Supreme court granted stay to the judgment and order of the Division Bench as quoted above. Shri Pradhan submitted that the accounts of the petitioner are still frozen.

5. Shri Pradhan submitted that the petitioner did not commit offence punishable under Section 138 of the Act, because, the petitioner did not commit any act which is falling under the purview of Section 138 of the Act. He submitted that as his bank accounts were frozen, he could not have honoured the said cheques when they were presented in the bank. He pointed out in this context the memoranda issued by the bank in respect of dishonouring of three cheques.

6. By pointing out these things, Shri Pradhan submitted that the prosecution which has been initiated by the act of the learned Magistrate taking cognizance of the complaint filed by the respondent No. 2, deserves and needs to be quashed.

7. Shri Saste, A.P.P. made his best for supporting the order which has been assailed by this petition, passed by the said Court. He submitted that the petitioner should have honoured those cheques when they were presented before the bank for encashment. He prayed that this petition be dismissed.

8. For dealing with the submissions advanced on behalf of the litigating parties, it is necessary to quote Section 138 of the Act as it is, which reads:

"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, or any debt or other liability, in returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier.

(b) the payee or the holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation : For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."

9. Shri Pradhan had submitted that on 16/12/1997 the Chief Metropolitan Magistrate had ordered, while deciding the matter in pursuance of the directions of the Supreme Court, that the petitioner was to return the said Maruti Esteem Car to respondent No. 2 and respondent No. 2 was to return those cheques to the petitioner. While passing this order the Chief Metropolitan Magistrate had expressed his view that the transaction between the petitioner and respondent No. 2 respect of the said Maruti Esteem Car and those cheques was of a civil nature. Shri Pradhan had further submitted that the respondent No. 2 had filed the present complaint after the said judgment and order came in existence, that is on 24/3/1999. By pointing out this situation Shri Pradhan had submitted that as the said order which was passed by the Chief Metropolitan, Magistrate, Mumbai was not challenged anywhere, the said order attained finality and, therefore, the issuance of the cheques, which are the subject matter of the present prosecution, and which transaction is the pivotal point of the prosecution, was answered to be a dispute of civil nature by a competent criminal Court and, therefore, the respondent No. 2 should not have filed the present complaint and the learned Magistrate should not have taken cognizance thereof.

10. Shri Pradhan submitted that the complainant should have come to the Court with clean hands and should have narrated all these facts at the time of presenting the complaint. He further submitted that the order of issuing process against the petitioner has been passed on 24/3/1999 and this petition has come for final hearing after significant number of years and therefore, this Court be pleased to quash that prosecution without asking the petitioner to go to the said Court and make appropriate submission. He further submitted that as the petitioner has not committed the offence, as indicated by Section 138 of the Act, this Court be pleased to quash the said prosecution by allowing this writ petition.

11. It is true that the complainant should have narrated the entire history of the transaction and offshoots of the transaction resulting in the litigation between the parties. It is the bounden duty of every complainant to narrate full details of the transactions, including the past history and the litigations arising out of it and litigations arises out of it, whenever he files a complaint in a Criminal Court. If he does not do that, the Court is very much likely to be misled and there would be an error which would be assailed by the aggrieved party in higher Court and when such petition would come for final hearing, the situation like this would arise. Had the original complainant taken care of narrating the entire history of the transaction and offshoots and resultant litigations, the trial Court would have applied its mind to the exact situation by perusing the material placed before it. On account of laches on the part of the original complainant (respondent No. 2) the learned Court had issued the process against the petitioner as it was unable to analyse the allegations made in the complaint and was put to handicaps in arriving at a proper conclusion. On account of such laches the cause of the complaint deserves to suffer and it should suffer finally.

12. Every prosecution, which is the result of the cognizance taken of the complaint results in hardship, agony and expenditure to the indicated person. He is required to appear before the Court and for that in normal and in major cases, he has to engage a lawyer which would make him to spend a significant amount of money. For appearing before the Court he has to withdraw himself from his normal occupation, which happens to be a source of his livelihood. Therefore, the complainant who does not place all the material facts before the Court and seeks an order from the Court, the cognizance of his complaint has to suffer a failure, so far as his cause is concerned. One who does not come with clean hands has to suffer.

13. So far as present case is concerned, when the present complaint was filed in the Court, which took the cognizance and issued process against the petitioner, there was in existence the order passed by the Chief Metropolitan Magistrate, by which he had directed respondent No. 2, the original complainant to return all these cheques to the petitioner and petitioner to return the said car to him. The said order was not challenged by respondent No. 2 anywhere and on account of that it had attained finality. The learned Chief Metropolitan Magistrate has expressed his judicial opinion that, according to him, the said transaction which is the pivotal point of present prosecution is of a civil nature. Even that was not challenged by respondent No. 2 the original complainant, before any Court and that it has also attained finality. At least, the complainant was knowing this and therefore, he should not have filed the complaint. He should have returned those cheques before presenting them for encashment. Had he done that, there would not have been the occasion of dishonouring of the said cheques and issuances of memoranda, as they are available in the record for perusal. Had the original complainant obeyed the said order of the Chief Metropolitan Magistrate, Mumbai and had those cheques been returned, there would not have been any cause for him to file the present complaint. But the conduct of the original complainant was totally different and that resulted in the order which has been assailed by the petitioner by this petition.

14. When the Court of competent jurisdiction directs a person to return the cheques to drawer, he has to obey the said order, if that was not challenged by him in higher forums. In such case or cases he does not have any right to present those cheques for encashment. If he presents such cheques in violation of such order, then he cannot take advantage of dishonouring of such cheques for filing a complaint against such drawer in a criminal Court. Exactly the same situation has arisen so for as the present case is concerned. There is no point in allowing the petitioner to go to said Court and to make a prayer to that Court for recalling the said order because, nearly 5 years have elapsed. Therefore, this Court passes the order of quashing the said order, which has been passed by the Metropolitan Magistrate, 37th Esplanade Court, Mumbai by which he has taken cognizance of the complaint, which has been filed by respondent No. 2 and has issued the process against the petitioner. The said prosecution thus, stands quashed. The result is that this petition is allowed. The petitioner need not appear before the said Court.

A copy of this judgment be furnished to that Court for information and necessary action.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer / Sheristedar of this Court.