Madras High Court
S.Palanikumari vs C.Renuga Devi on 27 September, 2023
Crl.O.P(MD).No.13037 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 27.09.2023
CORAM:
THE HONOURABLE MR. JUSTICE P. DHANABAL
Crl.O.P(MD).No.13037 of 2021
and
Crl.M.P.(MD)Nos.6697 and 6701 of 2021
S.Palanikumari ...Petitioner
Vs
C.Renuga Devi ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, praying this Court to call for the entire records of the
complaint in S.T.C.No.296 of 2018 and the proceedings on the file of the
Judicial Magistrate No.V, Madurai against the petitioner and quash the same.
For Petitioners : Mr.K.Sridhar
For Respondent : Mr.S.Suresh
ORDER
This petition is filed to quash the complaint in S.T.C.No.296 of 2018, on
the file of the learned Judicial Magistrate No.V, Madurai.
2.According to the petitioner, the respondent has filed cheque complaint
as against the petitioner and the same is pending before the learned Judicial
Magistrate No.V, Madurai in S.T.C.No.296 of 2018. At the time of taking
cognizance, the petition was filed with delay of 184 days in filing the
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Crl.O.P(MD).No.13037 of 2021
complaint. But without issuing notice to the petitioner, the said petition was
allowed by order dated 01.06.2018. The learned Magistrate has passed an
order without issuing notice to the petitioner and without any reasons, the
learned Magistrate passed an order by directing the petitioner therein to pay a
sum of Rs.400/- to DLSA, Madurai and thereafter, taken on file in S.T.C.No.
296 of 2018. Thereby, the order of the learned Magistrate is liable to be set
aside.
3.No counter was filed on the side of the respondent.
4.The learned counsel appearing for the petitioner would contend that
this petitioner has been arrayed as accused in the aforesaid cheque case in
S.T.C.No.296 of 2018. The respondent filed a cheque case alleging that the
respondent borrowed a sum of Rs.4,50,000/- and thereafter, he issued a
cheque dated 30.08.2017 of State Bank of India. When the same was
presented for collection, the same was returned as 'insufficient funds' on
31.08.2017 and issued notice on 08.09.2017 and thereafter, the same was
replied by the accused on 21.09.2017. Therefore, the complainant filed
complaint with condone delay petition and in that petition, no notice was
served to the petitioner and no opportunity was given to him. Without notice,
the said petition was allowed. In order to defend the case of the petitioner in
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Crl.O.P(MD).No.13037 of 2021
the condone delay petition, no opportunity was given and thereby, the order
passed by the learned Magistrate is liable to be set aside.
5.To support his contention, he relied on the following judgments:-
(i)K.R.Kannan v. Jeya in Crl.O.P.No.39807 of 2004 in Madras High
Court
(ii)Sanja Raghuram and another v. Telengana Investments and another
reported in 2006 133 Compcas 450 Mad
6.The learned counsel appearing for the respondent would contend that
he filed written arguments stating that the petitioner has borrowed a sum of
Rs.4,50,000/- from the complainant and issued a cheque for the amount dated
24.08.2017. When the same was presented for collection, it was returned and
hence, he filed a complaint with a delay of 184 days and the same was also
allowed by the learned Judicial Magistrate and thereafter, this petitioner
appeared before the trial Court in the year 2019 itself and furnished sureties
and then after thought filed this petition and hence, revision petition only
would lie as against the order passed by the trial Court. The petition under
Section 482 of Cr.P.C., is not maintainable. Therefore, the petition is liable to
be dismissed.
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Crl.O.P(MD).No.13037 of 2021
7.To support his contention, he relied on the following judgments:-
(i)Birendra Prasad Sah v. State of Bihar and Another in Crl.A.No.868 of
(ii)MSR Leathers v. S.Palaniappan and Another in Crl.A.Nos.261 – 264
of 2002
8.This Court heard both sides and perused the materials available on
records.
9.On perusal of the records, it is admitted fact that the complainant has
filed a complaint as against this petitioner with delay of 184 days. A separate
petition has been filed to condone the delay. In that petition, notice was not
served to the petitioner herein and without hearing the petitioner herein, the
learned Magistrate has passed an order and condoned the delay by imposing
cost of Rs.400/- and the same has to be deposited before the DLSA, Madurai.
10.The contention of the petitioner is that opportunity was not given to
put forth his defence in the condone delay petition and thereby, taking
cognizance by the learned Magistrate without giving opportunity in the
condone delay petition is not permissible and it would affect the rights of the
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Crl.O.P(MD).No.13037 of 2021
accused. Hence, the order passed by the learned Magistrate is liable to be set
aside.
11.The learned counsel appearing for the petitioner relied upon the
judgment of this Court in the case of K.R.Kannan v. Jeya in Crl.O.P.No.
39807 of 2004, wherein this Court in para no.10 reads as follows:-
“In view of the above principle laid down by this Court in
the decision cited supra, it is crystal clear that condoning the
delay of preferring a complaint is not only a matter between the
complainant and the Court, but it is a question of deciding the
valuable right of the accused. In the event of condoning the delay,
even without affording opportunity to the accused, the right of the
accused is affected and infringed, inasmuch as the accused has
been denied an opportunity to put forward his objection for
condoning the delay. In the event of the accused raising his
objection to show that the complainant has not shown any
sufficient cause, the complaint is liable to be dismissed as not
maintainable and the accused need not undergo the ordeal of
trial. Therefore, this Court is constrained to direct the learned
Judicial Magistrate No.1, Salem, to reconsider the condone delay
petition by giving opportunity to both the complainant and the
accused to put forward their respective contentions and to pass
orders on merits by assigning valid reasons. It is also made clear
that the above said defect of not assigning any valid reason or not
affording any opportunity to the accused is only a curable
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Crl.O.P(MD).No.13037 of 2021
irregularity or defect and as such, the complaint is not liable to be
quashed at its threshold.”
12.On careful reading of the aforesaid judgment, it is clear that the
condoning the delay of preferring a complaint is not only a matter between the
complainant and the Court, but it is a question of deciding the valuable right
of the accused. In the event of condoning the delay, even without affording
opportunity to the accused, the right of the accused is affected and infringed,
inasmuch as the accused has been denied an opportunity to put forward his
objection for condoning the delay. In the case on hand also, without giving
opportunity to the petitioner, the learned Magistrate has decided the condone
delay petition.
13.The learned counsel appearing for the respondent relied on the
judgment of the Hon'ble Supreme Court in the case of Birendra Prasad Sah
v. State of Bihar and Another in Crl.A.No.868 of 2019, wherein the Hon'ble
Supreme Court in para no.11 held as follows:-
“11 The complaint was instituted on 11 May 2016. Under
Section 142(1), a complaint has to be instituted within one month of
the date on which the cause of action has arisen under clause (c) of
the proviso to Section 1386 . The proviso however stipulates that
cognizance of the complaint may be taken by the court after the
prescribed period, if the complainant satisfies the Court that he
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Crl.O.P(MD).No.13037 of 2021
had sufficient cause for not making a complaint within such period.
Both in paragraphs 7 and 8 of the complaint, the appellant
indicated adequate and sufficient reasons for not being able to
institute the complaint within the stipulated period. These have
been adverted to above. The CJM condoned the delay on the cause
which was shown by the appellant for the period commencing from
6 April 2018. However, if paragraphs 7 and 8 of the complaint are
read together, it is evident that the appellant had indicated
sufficient cause for seeking condonation of the delay in the
institution of the complaint. The High Court has merely adverted to
the presumption that the first notice would be deemed to have been
served if it was dispatched in the ordinary course. Even if that
presumption applies, we are of the view that sufficient cause was
shown by the appellant for condoning the delay in instituting the
complaint taking the basis of the complaint as the issuance of the
first legal notice dated 31 December 2015.”
14.On careful reading of the aforesaid judgment, it is clear that it will
not be applicable to the present facts and circumstances of the case. In that
case, there is no question of issues of notice to the accused at the time of
condoning the delay would arise.
15.Therefore, as rightly contended by the learned counsel appearing for
the petitioner without affording opportunity to the petitioner, it is not
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Crl.O.P(MD).No.13037 of 2021
appropriate to take cognizance by the learned Magistrate. Therefore, the case
law submitted by the petitioner is squarely applicable to the present facts of
the case.
16.In view of the aforesaid judgment, this Court is of the opinion that it
is appropriate to direct the learned Magistrate to reconsider the condone delay
petition filed by giving opportunity to both the complainant and the accused
to put forth their contentions and to pass orders by assigning valid reasons. It
is also made clear that the aforesaid defect of not assigning any valid reason
or not affording any opportunity to the accused is only a curable irregularity
or defect and as such, the complaint is not liable to be quashed at its threshold.
17.With the aforesaid observation, this Criminal Original Petition is
disposed of and the case is remitted back to trial Court for fresh consideration.
When the matter was filed before this Court, the matter was pending before
the learned Judicial Magistrate No.V and now the case is pending before the
learned Judicial Magistrate No.II, Fast Track Court, Madurai. The trial Court
is directed to decide the application within a period of one month from the
date of receipt of copy of this order. Consequently, connected miscellaneous
petitions are closed.
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Crl.O.P(MD).No.13037 of 2021
26.09.2023
NCC : Yes/No
Internet : Yes/No
Index : Yes/No
Mrn
To
1.The Judicial Magistrate No.II, Fast Track Court, Madurai.
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Crl.O.P(MD).No.13037 of 2021
P.DHANABAL, J.
Mrn
Crl.O.P(MD).No.13037 of 2021
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Crl.O.P(MD).No.13037 of 2021
27.09.2023
https://www.mhc.tn.gov.in/judis
