Madras High Court
G.Murugan @ Murugesan vs K.N.Karuppanan on 6 September, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.O.P.No.11222 of 2017
And
Crl.M.P.Nos. 9016 & 12096 of 2017
G.Murugan @ Murugesan .. Petitioner / Accused
Vs.
K.N.Karuppanan
...Respondent / Complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to set
aside the order dated 02.02.2017 in C.M.P.No. 4122 of 2015 in S.T.C.No.
278 of 2011 by the Judicial Magistrate Court No.I, Gobichettypalayam.
***
For Petitioner : Mr. Nandha Kumar
For Respondent : Mr. C.Rajan
https://www.mhc.tn.gov.in/judis/
2
ORDER
The present Criminal Original Petition has been filed questioning the
order dated 02.02.2017 in C.M.P.No. 4122 of 2015 in S.T.C.No. 278 of 2011
passed by the Judicial Magistrate, Gobichettypalayam.
2. The said order came to be passed on a petition filed by the
defacto complainant in S.T.C.No. 278 of 2011.
3. It must be mentioned that the said S.T.C.No. 278 of 2011 had
been filed taking advantage of Sections 138, 141 and 142 of the Negotiable
Instruments Act 1881 presented as a private complaint before the competent
Court/Judicial Magistrate No.1, Gobichettypalayam.
4. The necessity for filing such a complaint arose owing to the fact
that the defacto complainant alleged that the respondent/accused therein had
issued a cheque, which when presented for payment had been returned with
the reason “insufficient funds”. When the said S.T.C.No. 278 of 2011 was
pending, an application came to be filed by the de-facto complainant in
C.M.P.No. 4122 of 2015. By way of the said Miscellaneous Petition, the
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defacto complainant sought permission to dismiss S.T.C.No. 278 of 2011
with liberty to file a fresh complaint and return the document to enable the
defacto complainant to file a fresh complaint. That petition was filed because
the complaint had been presented on the basis of a legal notice in which one
week time alone was granted to the respondent/accused to make part of the
amount mentioned in the cheque which cheque had been returned by the
Bankers with the endorsement “insufficient funds”.
5. Mr. Nandha Kumar, learned counsel for the petitioner very
strenuously argued that the notice cannot be the basis for any complaint since
in a legal notice, the statute necessitates giving 15 days time for making
payment towards the amount mentioned in the cheque, but however, only one
week time was granted. The legality or otherwise of the notice, of which, I
am not prepared to enter into any discussion for the reasons stated herein,
had actually not been served on the respondent/accused.
6. The notice was sent to the address where the
respondent/accused resided but the door was locked. It could not be served.
Thereafter, on two separate dates intimation was given about the facts that a
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notice had been issued and sent to the respondent/accused, who did not take
steps to collect the notice from the post office. After waiting for the
stipulated time period, the notice was returned back to the defacto
complainant. After getting back the return, the complaint was filed as stated
within the period of 15 days as contemplated in the statute. Since it was
taken cognizance and it was determined that it was a curable irregularity, the
petition in C.M.P.No. 4122 of 2015 came to be filed by the defacto
complainant seeking permission to withdraw or rather inviting an order to
dismiss the said S.T.C.No. 278 of 2011 with permission to file a fresh
complaint.
7. The basis for which such a request was made was a Judgment of
the Hon'ble Supreme Court reported in 2015-1-L.W. (Crl.) 305 [ Yogendra
Pratap Singh Vs. Savitri Pandey & Anr.] wherein such a procedure had
been affirmed and contemplated by the Hon'ble Supreme Court.
8. Taking note of the said Judgment, the Judicial Magistrate No.1,
Gobichettipalayam, also passed necessary orders dismissing the said
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complaint but at the same time granting permission to file a fresh complaint
within a period of 30 days.
9. It must also be mentioned that in the said Judgement by the
Hon'ble Supreme Court, noting the fact that a second complaint would be
barred by the law of limitation if the starting period were to be calculated
from the date when the cause first arose, namely the cheque return date or
when the notice was issued calling upon the accused to pay the amount within
a period of 15 days, the Hon'ble Supreme Court had also stated that the delay
if any in filing the second complaint can also be condoned.
10. Accordingly, the learned Judicial Magistrate No.1,
Gobichettypalayam, appears to have condoned the delay in filing the second
complaint. That act was another cause for grievance by Mr. Nandha Kumar,
learned counsel for the petitioner who pointed out that this Court while taking
on file the present petition had granted stay and inspite of such stay, the
learned counsel complained, the Judicial Magistrate No.1, had condoned the
delay. But I would not read much into that particular fact because the
Hon'ble Supreme Court in the Judgment referred supra had stated that the
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delay can be automatically condoned provided the second complaint is filed
within a period of 30 days from the date of the order in the first instance.
11. The only issue which has to be now addressed is the grant of
time of one week in the legal notice.
12. Mr. Nandha Kumar, learned counsel for the petitioner took
serious umbrage over this aspect. It is a second complaint has now been
taken cognizance and is now pending. Let this particular issue be raised by
the petitioner herein before the jurisidctional Magistrate Court and let the
Magistrate answer that in manner known to law taking necessary recourse to
the legal provisions.
13. In this connection, I am confident that the Magistrate will pass
necessary orders after hearing both sides. After passing such orders, let
consequences follow, either the complainant would suffer or the complaint
would progress for further trial. I am not inclined to interfere with the order
dated 02.02.2017 in C.M.P.No. 4122 of 2015 in S.T.C.No. 278 of 2017
before the Judicial Magistrate No.I, Gobichettypalayam, which is the focus
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of the present Criminal Original Petition.
14. This Criminal Original Petition is therefore dismissed however
giving liberty to the petitioner herein to raise the issue of grant of just one
week time in the advocate notice prior to the filing of the complaint under
Section 138 of the Negotiable Instruments Act. Let the Magistrate address
the said issue in manner known to law.
15. Mr. Nandha Kumar, learned counsel for the petitioner, also
raised the issue of service of notice, and whether it can be deemed sufficient
or not.
16. In this connection, Mr.C.Rajan, learned counsel for the
respondent drew the attention of this Court to Section 69 of Cr.P.C., and also
to two Judgments of this Court, namely, (1) CDJ 2008 MHC 2118 [ Bipin
Mehta Vs. Chandra Mohan]; and (2) CDJ 2015 MHC 4557 [ M/s.
Jayalakshmi Textiles, rep. by partner Balasubramanian and another Vs.
S.K.Kolandasamy], both by learned Single Judges of this Court. These
Judgments may also be placed before the said Magistrate and the learned
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Magistrate may address the issue in the manner known to law.
17. In the result, the Criminal Original Petition is dismissed with
liberty granted as aforesaid. Consequently, connected Miscellaneous
Petitions are closed. No costs.
06.09.2021
Index:Yes/No
Internet:Yes/No
vsg
https://www.mhc.tn.gov.in/judis/
C.V.KARTHIKEYAN,
J
vsg
Crl.O.P.No.11222 of 2017
And
Crl.M.P.Nos. 9016 & 12096 of 2017
06.09.2021
https://www.mhc.tn.gov.in/judis/
