M/S G.K. Strips Pvt.Ltd. vs State Of A.P.Rep. By Public ...
2022 Latest Caselaw 4401 Tel

      HIGH COURT FOR THE STATE OF TELANGANA
                       AT HYDERABAD
                             *****

              Criminal Appeal No.501 OF 2009

Between:

M/s.G.K.Strips Pvt. Ltd.                        ... Appellant
                           And

State of A.P, rep. by Public Prosecutor and
others.                                       ... Respondents
DATE OF JUDGMENT PRONOUNCED: 06.09.2022

Submitted for approval.

THE HON'BLE SRI JUSTICE K.SURENDER


 1    Whether Reporters of Local
      newspapers may be allowed to            Yes/No
      see the Judgments?

 2    Whether the copies of judgment
      may be marked to Law                    Yes/No
      Reporters/Journals

 3    Whether Their
      Ladyship/Lordship wish to see           Yes/No
      the fair copy of the Judgment?



                                              _________________
                                              K.SURENDER, J
                                           2



              * THE HON'BLE SRI JUSTICE K.SURENDER
                              + CRL.A. No.501 of 2009

% Dated 06.09.2022


# M/s.G.K.Strips Pvt. Ltd                                      ... Appellant

                                        And

$ State of A.P, rep. by Public Prosecutor
And others.                                                ..Respondents

! Counsel for the Appellant: Sri Sharad Sanghi.


^ Counsel for the Respondents: Public Prosecutor for R1

                                       Sri C.Sharan Reddy for R2 to R4
>HEAD NOTE:

? Cases referred
1
    1993 (1) ALT 370

2 2001 (1) ALD (Crl.) 452 A.P

                       3
                           (2008) 13 Supreme Court Cases 689
                                3



             HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.501 OF 2007
JUDGMENT:

1. The appellant has filed the present appeal questioning

the correctness of the judgment of the III Additional Chief

Metropolitan Magistrate, Hyderabad in CC No.584 of 1999

dated 20.06.2008 acquitting the respondents/accused for the

offences under Section 138 of the Negotiable Instruments Act.

2. The case of the appellant is that its company has

supplied goods in the course of day to day business to the

respondents and towards sale consideration, the cheque Ex.P4

for Rs.10,68,000/- was issued by the 1st respondent company,

owned by the 2nd respondent. The said cheque when presented

for clearance was returned unpaid. Aggrieved by the same, the

appellant issued legal notice. A copy of which is marked as

Ex.P6. Pursuant to the issuance of the said legal notice, since

the payment was not made, the appellant company

represented by its Director S.N.Agarwal filed the present

complaint.

3. Learned Magistrate after examining Sri Gopal Agarwal,

the Managing Director of the appellant company and marking

Exs.P1 to P13 and also examining the 2nd respondent as

D.W.1 and one Senior Assistant from RTA Department as

D.W.2 V.Narasimha Reddy, dismissed the complaint.

4. The main ground on which the complaint was dismissed

was that the complaint was filed beyond limitation. Originally

the complaint was filed on 25.08.1999 before IV Additional

Metropolitan Magistrate, which is the jurisdictional Court.

After the said Court returned the complaint on the point of

jurisdiction, the complaint was filed in the Court of III

Additional Chief Metropolitan Magistrate at Hyderabad, which

admittedly is beyond the period of limitation prescribed under

Section 138 of the N.I.Act for filing the complaint. The learned

Magistrate also found that the defacto complainant/appellant

also failed to make out his case that there was any legally

enforceable debt after going through Exs.D2 to D45, which

were marked by the 2nd respondent/A2. After going through

Exs.D2 to D45, which are copies of personal register extract,

though heavy material were transported in autos, motor cycles

and cars, which numbers were reflected in Exs.D2 to D45,

transportation of goods was not being proved by the

complainant under Exs.D2 to D45. The learned Magistrate

also found that service of legal notice was also not proved as

the acknowledgment Ex.P11 does not bear the signatures of

the respondents, which is admitted by the complainant/P.W.1.

For the above reasons, the learned Magistrate found that the

complaint has to be dismissed and accordingly acquitted the

respondents.

5. Admittedly, the complaint was initially filed before the IV

Metropolitan Magistrate, Hyderabad, which does not have

jurisdiction and subsequently filed before the III Additional

Chief Metropolitan Magistrate at Hyderabad on 06.09.1999.

According to Section 142 of the N.I.Act, a complaint has to be

made within one month of the date on which the cause of

action arises under clause "C" of proviso to Section 138 of the

N.I.Act. Admittedly, the date 06.09.1999 is beyond one month

limitation as prescribed under Section 142-B of the N.I.Act.

6. The learned counsel for the appellant submits that since

the complaint is filed in time before the IV Metropolitan

Magistrate on 25.08.1999, the subsequent filing before the

concerned jurisdictional Court would only be a resubmission.

Since the complaint was filed in time before the IV

Metropolitan Magistrate, Hyderabad, the present complaint is

maintainable and not beyond the period of limitation. In

support of his contention, he relied on the judgment of this

Court in Appu Ramani and others v. The State1 and has

drawn the attention of this Court to para 12, which reads as

follows:

"12. Following the above principles, let us examine the facts of the present case. The date of offence in this case is 30‐11‐1986 and the charge‐sheet was filed in the first instance on 19‐10‐1987 and it was returned for rectifying certain defects on the same day, i.e., 19‐10‐1987 and the same was represented on 25‐4‐1988 and ultimately cognizance was taken by the Magistrate on 6‐6‐1988. As the charge‐sheet was filed on 19‐10‐1987 i.e., within one year from the date of offence alleged to have been committed on 30‐11‐1986, we hold that it is within the period of limitation and that taking of the cognizance of the case by the Magistrate 6‐6‐1988 is valid and does not suffer from any infirmity or error. We are unable to agree with the unreported decision of Bhaskar Rao, J. dated 17‐9‐1990 in Crl.R.C. No. 409 of 1990 and it is accordingly overruled."

7. The said case was filed under Andhra Pradesh Forest Act,

1967 for the offence punishable under Section 29(4). The

Hon'ble Division Bench held that when the charge sheet which

1993 (1) ALT 370

was filed at the first instance was within the limitation period

subsequent resubmission would not adversely affect the filing

of the charge sheet and accordingly held that since the first

submission of the charge sheet was within the prescribed

limitation period, taking cognizance subsequently on

resubmission does not suffer from any infirmity.

8. The other judgment relied upon by the learned counsel

for the appellant in the case of Pritama Reddy v. Charminar

Co-operative Urban Bank Limited2, wherein it is held as

follows:

"19. The complaints were represented in these cases on 9‐8‐1999. On 10‐8‐1999 it was returned on an office objection taken since the complaints were not signed by the complainant and the complaints were filed without vakalath. The objection having been complied with, the complaints were represented on 20‐9‐1999. The complaints should be filed admittedly on or before 30‐8‐ 1999, 27‐8‐1999, and 26‐8‐1999, respectively. The initial presentation of the complaints was admittedly well within those dates and the subsequent re‐presentation was beyond those dates. The complaint was signed obviously by counsel for the complainant when it was presented initially."

24. Turning to the last contention on the side of the petitioners that the printed forms used in this case do not reflect the fact situation, I am afraid the same cannot be decided in these petitions and is got to be decided at the time of trial after giving an opportunity to the complainant. However, it may be an eye opener to the complainant‐Bank."

9. The Judgment in Appu Ramani (supra) the case is under

Forest Act. In Pritama Reddy v. Charminar Co-operative

2001 (1) ALD (Crl.) 452 A.P

Urban Bank Limited (supra), the complaint was filed in the

jurisdictional Court without signatures in the complaint and

with certain objections, for which reason, the complaint was

taken back and resubmitted. In the said circumstances, this

Court held that resubmission beyond the date of limitation

would not affect the complaint.

10. In both the cases, which are referred to supra, the

complaint and charge sheet were filed in the jurisdictional

court and thereafter returned with objections. Though

resubmission was beyond the period of limitation, this Court

found that there is no infirmity and the complaint can be

taken cognizance of by the concerned courts. But in the

present case, the complaint was not filed in the jurisdictional

Court which is III Additional Chief Metropolitan Magistrate,

but filed before IV Metropolitan Magistrate. In the said

circumstances, it cannot be said that the complaint was filed

in the Court having jurisdiction. For the said reason, the

aforesaid two judgments are not applicable to the facts of the

present case.

11. Section 142(1)(b) of the N.I.Act contemplates filing of the

complaint within one month after the cause of action arises.

Admittedly, complaint before the jurisdictional Court was filed

after the period of limitation, which is one month. The

provisions of Limitation Act are made inapplicable for the

offence under Section 138 of the Negotiable Instruments Act.

In 2003, an amendment was made to Section 142 (1) (b) of the

Act, which reads as follows:

"(b) such complaint is made within one month of the date on which the cause of action arises under (c) of the proviso to Section 138:"

12. The said amendment was inserted by Act 55 of 2002 with

effect from 06.02.2003. The said proviso which was added

does not have retrospective affect. The Hon'ble Supreme

Court in the case of Subodh S.Salaskar v. Jayprakash

M.Shah3, held that Section 142(1)(b) proviso inserted is not

retrospective.

(2008) 13 Supreme Court Cases 689

13. In the present case, admittedly, no application was made

seeking condonation of delay in filing the complaint before the

jurisdictional Court, which is III Additional Chief Metropolitan

Magistrate, Hyderabad. In the absence of any application

being made and reasons to be recorded, the III Additional

Chief Metropolitan Magistrate, has taken cognizance. In the

said circumstances, when the complaint was filed beyond the

period of limitation, the complaint is liable to be dismissed.

14. In view of the findings recorded, the complaint being

filed beyond the period of limitation, this Court is not inclined

to go into the other grounds regarding enforceable debt raised

by the appellant.

16. Accordingly, Criminal Appeal is dismissed.

__________________ K.SURENDER, J Date: 06.09.2022 Note: LR copy to be marked.

kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.501 OF 2009

Date: 06.09.2022.

kvs