Walter Morais Jeyakumar vs R.Jacobe
2023 Latest Caselaw 8578 Mad

                                                                         Crl.O.P.No.16121 of 2023

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 19.07.2023

                                                        CORAM

                                  THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                              Crl.O.P.No.16121 of 2023

                     Walter Morais Jeyakumar                                ... Petitioner

                                                          Vs.

                     R.Jacobe                                               ... Respondent

                     Prayer: This Criminal Original Petition is filed under Section 482
                     Cr.P.C. to direct the Judicial Magistrate II Puducherry to take the
                     complaint dated 28.04.2023 on file as the time frame fixed by this
                     Court.
                                     For Petitioner        : Mr.P.Suresh Philemon
                                     For Respondent        : No appearance

                                                         ORDER

This Criminal original petition has been filed to take the

complaint on file and to deal with the same on its own merits and in

accordance with law.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.16121 of 2023

2. The petitioner had filed an earlier complaint in STC

No.2392 of 2016 against the respondent for offence under Section

138 of the Negotiable Instruments Act. The said complaint came to

be dismissed by an order dated 20.02.2023 on the ground that the

complaint was filed even before the expiry of 15 days of the service

of notice and hence, cannot be treated as a complaint in the eye of

law.

3. The petitioner filed a fresh complaint before the Court

below quoting the judgment of the Apex Court in Gajanand

Buraange Vs.Laxmi Chand Goyal in SLP(Crl).No.1415 of 2019.

The grievance of the petitioner is that the Court below rejected the

complaint on the ground that the earlier complaint in STC No.2392

of 2016 has already been dismissed and a fresh complaint on the

same cause of action cannot be entertained. Aggrieved by the

same, the present Criminal Original Petition has been filed before

this Court.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.16121 of 2023

4. Heard Mr.P.Suresh Philemon, learned counsel for the

petitioner.

5. This Court has carefully gone through the judgement of

the Apex Court in Gajanand Buraange Vs.Laxmi Chand Goyal

referred supra. Two issues were dealt with by the Apex Court in the

said judgement. The 1st issue is if the complaint is filed before the

expiry of 15 days can cognizance of the offence under Section 138

of the Negotiable Instruments Act can be taken. The 2nd issue is that

if such cognizance cannot be taken, can the complainant be

permitted to present the complaint again.

6. Insofar as the 1st issue is concerned, the Apex Court held

that the Court cannot take cognizance of an offence under Section

138 of the Negotiable Instruments Act on a complaint filed before

the expiry of 15 days from the date of receipt of the notice by the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.16121 of 2023

drawer of the cheque. Insofar as the 2nd issue is concerned, the

Apex Court held that in all such pending cases, the complainant can

be permitted to file a fresh complaint and if it could not be filed

within the time prescribed under Section 142(b) of the Act, the

complainant can be allowed to seek for the benefit of the proviso to

the section by giving sufficient cause.

7. The above judgement will not come to the aid of the

petitioner since the complaint has already been dismissed by the

Court below by an order dated 20.02.2023. In view of the same, the

complainant has to necessarily challenge this order and get a liberty

to file a fresh complaint before the Court below. The complainant

cannot disregard the order passed by the Court below on 20.02.2023

and parellelly file a fresh complaint. In view of the same, the

reason assigned by the Court below for not entertaining the

complaint cannot be held to be illegal.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.16121 of 2023

8. In the light of the above discussion, it is left open to the

petitioner to challenge the order passed by the Court below in STC

No.2392 of 2016 dated 20.02.2023, by filing an appeal. In the

appeal, it is always left open to the petitioner to take advantage of

the judgment passed by the Apex Court and canvass the same

before the appellate Court.

9. This Criminal original petition is disposed of in the above

terms.

19.07.2023 rka Index :Yes/No Internet:Yes Speaking Order/Non-speaking Order To

1. The learned Judicial Magistrate II Puducherry.

2. The Public Prosecutor, Madras High Court, Chennai.

N.ANAND VENKATESH,J.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.16121 of 2023

rka

Crl.O.P.No.16121 of 2023

19.07.2023

https://www.mhc.tn.gov.in/judis