the midst of the trial had entertained application filed by the accused
for dropping the proceedings. It is not clear as to under what
provisions of law, the learned Magistrate passed an order of dropping
the proceedings and acquitted the accused. The learned Magistrate
passed the following order :
“Application given by accused is granted.
The case is dismissed and accused are acquitted. ”
10. Section 258 of the Code of Criminal Procedure reads as
under ;
“258. Power to stop proceedings in certain cases
In any summonscase instituted otherwise than upon complaint,
a Magistrate of the first class or, with the previous sanction of the
Chief Judicial Magistrate, any other Judicial Magistrate, may, for
reasons to be recorded by him, stop the proceedings at any stage
without pronouncing any judgment and where such stoppage of
proceedings is made after the evidence of the principal witnesses has
been recorded, pronounce a judgment of acquittal, and in any other
case release, the accused, and such release shall have the effect of
discharge.”
11. Admittedly, the provisions of section 258 of the Code of
Criminal Procedure are not applicable to the summons case instituted
upon a complaint. The learned Magistrate has passed the order at the
stage of recording of evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.448 OF 1999
Dhimant Mehta
V/s.
M/s. Ramdil Resorts P. Ltd.
CORAM : MRS.SWAPNA JOSHI, J.
Dated : 7TH SEPTEMBER, 2016.
Citation:2016 ALLMR(CRI)4448
1. The present appeal has been preferred by the original
complainant against the judgment and order dated 8th July, 1999 in
Case No. 103/ S/1993 passed by the learned Additional Chief
Metropolitan Magistrate, IV Court, Girgaum, Mumbai thereby allowing
the application filed by respondent Nos.1 to 3 / original accused Nos.1
to 3 for dismissal of the complaint under section 138 of the Negotiable
Instruments Act and for their acquittal.
2. As the complainant and his counsel remained absent,
Mr.Yashpal Thakur, the learned counsel pleaded the case of the
complainant as Amicus Curiae.
3. I have heard the learned counsel Mr. Thakur, Mr. Millwala,
the learned counsel for respondent Nos.1 to 3 and the learned APP for
the respondent State.
4. I have gone through the impugned judgment and order
passed by the learned Additional Chief Metropolitan Magistrate and
perused the record of the case.
5. Brief facts of the case are that in all five cheques were
issued by accused in favour of the complainant, including three cheques
which are subject matter of the present case i.e. cheques dated 30th
December, 2012 for Rs.3,30,000/, 30th January, 1993 for
Rs.2,50,000/ and 28th February, 1993 for Rs.2,50,000/. All the
cheques were dishonoured. A statutory demand notice was issued by
the complainant on 14th May, 1993 to the accused. The accused
requested the complainant to redeposit the cheques dated 30th
December, 2012 for Rs.3,30,000/, 30th January, 1993 for Rs.2,50,000/
and 28th February, 1993 for Rs.2,50,000/. Pertinently, those cheques
were also dishonoured. Hence another statutory demand notice was
sent by the complainant on 28th June, 1993 to the accused. A complaint
was filed against accused persons on the basis of this notice.
6. I have perused the evidence of the complainant. In his
crossexamination, the complainant has admitted that he had issued
notice on 14th May, 1993 which is a statutory demand in respect of the
five cheques issued by the accused, including the cheques in question,
after they were dishonoured. Out of those five cheques, three cheques
which are in dispute were redeposited and again the same were
dishonoured.
7. Mr.Thakur, the learned counsel for the complainant
appointed by this Court to espouse the cause of the complainant argued
that it is a pure question of law involved in this case. He submitted that
the learned trial Court has proceeded to drop the proceedings at the
stage of crossexamination of PW3 which is not permissible under the
law. Mr.Thakur invited my attention to the provisions of Section 258 of
The Code of Criminal Procedure, 1973 and submitted that the learned
Magistrate has erred in disposing the complaint in this way. The
second contention of Mr.Thakur is that the trial Court has acquitted the
accused by relying upon the decision of the Hon'ble Supreme Court in
the case of Sadanand Bhadran V/s. Madhvan Sunil Kumar reported
in (1998) SCC 514 which was a good law at the relevant time.
However, Mr. Thakur contended that now the said judgment has been
overruled and he, therefore, prayed for remand of the matter back to
the trial Court.
8. Per contra, Mr.Millwala, the learned counsel for the original
accused argued that the learned trial Court has passed an order on an
application filed by the accused to drop the proceedings. In that case,
at the most the accused could have been discharged. He submitted that
the complainant should have filed a revision against the said order. Mr.
Millwala, the learned counsel however did not dispute that the
provisions of section 258 are not applicable to the case in hand.
According to the learned counsel, the learned Magistrate has rightly
passed the order of acquittal of the accused and the trial Court has
rightly applied the law in the case of Sadanandan Bhadran (supra).
9. Heard the learned counsel for the parties and carefully
perused the record of the case. Admittedly, the learned Magistrate in
the midst of the trial had entertained application filed by the accused
for dropping the proceedings. It is not clear as to under what
provisions of law, the learned Magistrate passed an order of dropping
the proceedings and acquitted the accused. The learned Magistrate
passed the following order :
“Application given by accused is granted.
The case is dismissed and accused are acquitted. ”
10. Section 258 of the Code of Criminal Procedure reads as
under ;
“258. Power to stop proceedings in certain cases
In any summonscase instituted otherwise than upon complaint,
a Magistrate of the first class or, with the previous sanction of the
Chief Judicial Magistrate, any other Judicial Magistrate, may, for
reasons to be recorded by him, stop the proceedings at any stage
without pronouncing any judgment and where such stoppage of
proceedings is made after the evidence of the principal witnesses has
been recorded, pronounce a judgment of acquittal, and in any other
case release, the accused, and such release shall have the effect of
discharge.”
11. Admittedly, the provisions of section 258 of the Code of
Criminal Procedure are not applicable to the summons case instituted
upon a complaint. The learned Magistrate has passed the order at the
stage of recording of evidence.
12. In the instant case, the complainant has issued two demand
notices first one on 14th May, 1993 in respect of five cheques and has
redeposited the three cheques out of those five cheques, which were
again dishonoured. The complainant issued the second demand notice
on 28th June, 1993. The complainant has filed the present complaint on
11th August, 1993. As per the provisions of section 138 of the
Negotiable Instruments Act, the complainant is supposed to file the
complaint on failure of the drawer of a cheque to pay the amount dues
within 15 days from the receipt of the demand notice and the
complainant is supposed to file the complaint within a period of one
month from the expiry of 15 days. So far as the case of the accused is
concerned, since the first notice was issued on 14th May, 1993 the
complainant ought to have filed the complaint by the end of June, 1993
as per the limitation prescribed under section 138 of the Negotiable
Instruments Act. However, the present complaint is filed by the
complainant on 11th August, 1993 based on the second notice dated 28th
June, 1993, which is time barred.
13. The learned Magistrate has acquitted the accused by relying
upon the decision of the Hon'ble Supreme Court in the case of
Sadanandan Bhadran V/s. Madhvan Sunil Kumar reported in (1998) 6
SCC 514. In the said judgment, it is held that the limitation to file the
complaint would commence from first default and notice sent and the
limitation would not commence from second default. The Hon'ble Apex
Court in the case of MSR Leathers V/s. S.Palaniappan and Anr.
reported in (2013) 1 Supreme Court Cases 177 in para Nos.15 and
16 held as under :
“ 15. Sadanandan Bhadran’s case (supra) holds that while a second
or successive presentation of the cheque is legally permissible so long
as such presentation is within the period of six months or the
validity of the cheque whichever is earlier, the second or subsequent
dishonour of the cheque would not entitle the holder / payee to
issue a statutory notice to the drawer nor would it entitle him to
institute legal proceedings against the drawer in the event he fails to
arrange the payment. The decision gives three distinct reasons why
that should be so. The first and the foremost of these reasons is the
use of the expression “cause of action” in Section 142(b) of the Act
which according to the Court has been used in a restrictive sense
and must therefore be understood to mean that cause of action
under Section 142(b) can arise but once. The second reason cited
for the view taken in the Sadanandan Bhadran’s case (supra) is
that dishonour of a cheque will lead to commission of only one
offence and that the offence is complete no sooner the drawer fails to
make the payment of the cheque amount within a period of 15 days
of the receipt of the notice served upon him. The Court has not
pressed into service the doctrine of “waiver of the right to prosecute”
but held that the failure of the holder to institute proceedings would
tantamount to “absolution” of the drawer of the offence committed
by him. The third and the only other reason is that successive causes
of action will militate against the provisions of Section 142(b) and
make the said provision otiose. The Court in Sadanandan Bhadran’s
case (supra) held that the failure of the drawer / payee to file a
complaint within one month resulted in forfeiture of the
complainant’s right to prosecute the drawer/payee which forfeiture
cannot be circumvented by him by presenting the cheque afresh and
inviting a dishonour to be followed by a fresh notice and a delayed
complaint on the basis thereof.
16. With utmost respect to the Judges who decided Sadanandan
Bhadran’s case (supra) we regret our inability to fall in line with
the above line of reasoning to hold that while a cheque is presented
afresh the right to prosecute the drawer, if the cheque is
dishonoured, is forfeited only because the previous dishonour had
not resulted in immediate prosecution of the offender even when a
notice under clause (b) of proviso to Section 138 had been served
upon the drawer. We are conscious of the fact that Sadanandan
Bhadran’s case (supra) has been followed in several subsequent
decisions of this Court such as in Sil Import, USA V. Exim Aides Silk
Exporters, Bangalore (1999) 4 SCC 567, Uniplas India Ltd. and
Ors. V/s. State (Govt. of NCT Delhi) and Anr. (2001) 6 SCC 8,
Dalmia Cement (Bharat) Ltd. V/s. Galaxy Traders & Agencies Ltd.
and Anr., (2001) 6 SCC 463, Prem Chand Vijay Kumar V/s.
Yashpal Singh and Anr.,(2005) 4 SCC 417, S.L.Constructions and
Anr. V/s. Alapati Srinivasa Rao and Anr., (2009) 1 SCC 500,
Tameshwar Vaishnav V. Ramvishal Gupta (2010) 2 SCC 329.”
14. Thus, the Hon'ble Supreme Court was pleased to overrule
the decision in the case of Sadanandan Bhadran's case (supra) and
observed that the complaint filed on the basis of second default would
also be maintainable.
15. Significantly, the learned Magistrate has acquitted the
accused. Hence, the remedy available to the complainant is to prefer
an appeal against the judgment of acquittal under the provisions of
Section 378 (4) of the Cr. P.C. Revision is certainly not maintainable.
So also in case of summons case, provision of discharge is not
available. Being a private complaint, as discussed above, the provisions
under section 258 of the Cr.P.C. are not applicable to the facts of the
present case.
16. In view of the abovesaid legal position, it would be
necessary to remand the matter back to the learned Magistrate to
reconsider the judgment passed by the Hon'ble Supreme Court and
decide the case afresh in accordance with the law.
17. Before parting with the judgment, this Court appreciates
the assistance rendered by the learned Amicus Curiae.
(i) The appeal is allowed;
(ii) The judgment and order dated 8th July, 1999 passed by the
learned Additional Chief Metropolitan Magistrate, Girgaum
Court, Mumbai in case No.103/S/1993 is hereby quashed and set
aside and the matter is remanded back to the trial Court to decide
the matter afresh after taking into consideration the judgment
passed by the Hon'ble Supreme Court MSR Leathers V/s. S.
Palaniappan and Anr. reported in (2013) 1 Supreme Court
Cases 77.
(MRS.SWAPNA JOSHI, J.)
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