As regards the contention that in absence of the original of the cheque the Court could not have issued process, I am of the view that at the stage of issuance of process, the Court is required to see whether a prima facie case is made out or not. Question of admissibility and reliability of secondary evidence is to be tested and assessed at a later stage, when challenge is made to the execution /issuance of the concerned cheque. Thus, the summoning order cannot be faulted on this ground.
ALLAHABAD HIGH COURT
CRIMINAL REVISION No. - 2560 of 2012
Sanjay Somani VsState Of U.P. & Another
Citation;2013 ALL M R(cri)JOURNAL 123
Heard learned counsel for the revisionist and learned A.G.A for the State.
By this revision application, the revisionist has challenged the summoning order dated 18.7.2012 passed by the First Special Metropolitan Magistrate (1st Class), Kanpur Nagar in Complaint Case No.2900 of 2012 (Old No.350 of 1995), whereby the revisionist has been summoned under section 138 of the Negotiable Instruments Act, 1881.
The facts, as elicited from the record, are that Allahabad Bank, a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, on 6.2.1995, instituted complaint, under section 138 of the Negotiable Instruments Act, 1881, against M/s Somani Investments and its authorized representative / signatory Sanjay Somani (the revisionist). In the complaint it was alleged that the revisionist issued cheque no.309886, dated 20.12.1994, drawn on ANZ Grindlays Bank, for Rupees four crores in favour of the complainant as part payment towards the adjustment of his liability. The said cheque was presented for collection of the cheque amount, on 31.12.1994. On 31.12.1994 itself, the Bankers (ANZ Grindlays Bank) returned the cheque unpaid with the remark "Refer to Drawer (insufficient funds)". Consequently, demand notice was sent under registered post on 13.1.1995, which was served on 14.1.1995. On failure to make payment within the statutory period of 15 days, complaint was filed on 6.2.1995, with documents i.e. photocopy of the concerned cheque, bank memo, notice, postal receipt, etc. From the certified copy of the order sheet, which has been brought on record through a supplementary affidavit dated 6.8.2012, it appears that the Court registered the complaint on 6.2.1995 itself and fixed 10.2.1995 for recording of statement under section 200 CrPC. The order sheet also discloses that on 21.2.1995 statement under section 200 CrPC was recorded. From Annexure 2 to the main affidavit, it appears that statement of C.L. Maurya, the branch Manager of the Complainant, was recorded, who supported the complaint case. After recording the statement, under section 200 CrPC, on 21.2.1995, the court fixed a date for arguments. Thereafter, it appears that the case got adjourned for various reasons and dates after dates were fixed in the matter. According to the counsel for the revisionist, the matter was delayed as the original of the cheque concerned was not produced. However, on 30.6.2012, an affidavit of Jitendra Nath Trivedi, the branch Manager, Allahabad Bank, was filed, which disclosed that the original of the cheque was handed over to the then Complainant's counsel Sri Vinod Lal Chandani, and since he is no more alive, the original cannot be produced. The court below finding that a prima facie case punishable under Section 138 of the Negotiable Instruments Act, 1881 was made out against the revisionist passed the impugned summoning order.
Challenging the summoning order, the learned counsel for the revisionist contended that the summoning order cannot be passed after 17 years of the presentation of the complaint. It has been contended that the complaint was filed on 6.2.1995 whereas the summoning order was passed on 18.7.2012, therefore, the proceedings should be deemed to be barred by limitation. It has further been submitted that in absence of the original of the dishonored cheque, the court below could not have acted upon the complaint allegations and proceeded to summon the revisionist. A feeble attempt was also made to challenge the validity of the summoning order on the ground that the affidavit submitted by Jitendra Nath Trivedi, who was not the complainant, without his examination in Court, could not have been relied upon.
As regards the contention that the proceedings were barred by limitation, I am of the view that if the complaint was made within the period of limitation, the complainant has done what he could do. It is for the Court thereafter to proceed and issue process. Accordingly, if the Court delays issuance of process the complainant cannot be penalized for the delay on part of the Court. The Apex Court in the case of Japani Sahoo Vs. Chandra Shekhar Mohanty, reported in (2007) 7 SCC, 394 held that the relevant date, for computing the period of limitation under Section 468 CrPC, is the date on which the complaint is filed for initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. While holding as above, the apex court, in paragraph 49 of the judgment in Japani Sahoo (supra), observed as follows:
"49. Because of several reasons (some of them have been referred to in the aforesaid decisions, which are merely illustrative cases and not exhaustive in nature), it may not be possible for the court or the Magistrate to issue process or take cognizance. But a complainant cannot be penalised for such a delay on the part of the court nor can he be non-suited because of failure or omission by the Magistrate in taking appropriate action under the Code. No criminal proceeding can be abruptly terminated when a complainant approaches the court well within the time prescribed by law. In such cases, the doctrine "actus curiae neminen gravabit (an act of court shall prejudice none) would indeed apply. (Vide Alexander Rodger V. Comptoir D' Escompte (1871) LR 3 PC 465: 17 ER 120). One of the first and highest duties of all courts is to take care that an act of court does no harm to suitors."
In the instant case, the complaint was filed on 6.2.1995, after serving notice of demand on 14.1.1995 (as per the complaint allegations). The cause of action to institute the complaint arose when no payment was made within 15 days from the date of service. Thus, the right to lodge the complaint accrued only on expiry of 15 days to be counted from 14.1.1995. As the complaint was filed on 6.2.1995 that is, within 30 days from the date of expiry of the 15 days notice, it was well within the period of limitation provided under clause (b) of Section 142 of the Negotiable Instruments Act, 1881. In the circumstances, the proceedings are not barred by limitation. Accordingly, on this ground, the summoning order cannot be faulted.
As regards the contention that in absence of the original�of the cheque the Court could not have issued process, I am of the view that at the stage of issuance of process, the Court is required to see whether a prima facie case is made out or not. Question of admissibility and reliability of secondary evidence is to be tested and assessed at a later stage, when challenge is made to the execution /issuance of the concerned cheque. Thus, the summoning order cannot be faulted on this ground.
With regards to the submission that the statement of Jitendra Nath Trivedi could not have been relied, as he was neither examined in Court nor he presented the complaint, I am of the view that this would not make a material difference at the stage of summoning. It is noteworthy that the complaint was presented on behalf of Allahabad Bank, which is a public sector bank constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, which is a Central Act. Moreover it is a Government Company under section 617 of the Companies Act. Therefore, by virtue of Section 21 clause Twelfth of Indian Penal Code read with Section 2(y) of the Code of Criminal Procedure, its branch Manager, who presented the complaint, would be a "public servant" and, as such, by virtue of the decision of the Apex Court in the case of National Small Industries Corporation Ltd. V. State (NCT of Delhi) (2009) 1 SCC 407 (vide paragraphs 16, 19 and 20 of the judgment) the benefit of the proviso to Section 200 CrPC i.e. exemption from examination of the complainant and the witnesses, would be available, even though Allahabad Bank (the Company) was the complainant. Accordingly, the summoning order cannot be faulted on this ground as well.
Before parting, the Court expresses deep anguish at the prevailing state of affairs that in a matter like this, the court below took 17 years to issue process, when the statement under section 200 CrPC, which was not even required by law, was recorded 17 years back. Matters under section 138 of the Negotiable Instruments Act, 1881 are to be dealt with utmost expedition otherwise the very purpose, for which the provision was inserted in the Act, would stand frustrated.
For the reasons mentioned above, I do not find any illegality, impropriety or jurisdictional error in the summoning order. The revision application is, accordingly, dismissed.
The Registry is directed to send a copy of this order to the court concerned, within three weeks from today, for information.
Order Date :- 23.8.2012/G.S
Print Page
ALLAHABAD HIGH COURT
CRIMINAL REVISION No. - 2560 of 2012
Sanjay Somani VsState Of U.P. & Another
Citation;2013 ALL M R(cri)JOURNAL 123
Heard learned counsel for the revisionist and learned A.G.A for the State.
By this revision application, the revisionist has challenged the summoning order dated 18.7.2012 passed by the First Special Metropolitan Magistrate (1st Class), Kanpur Nagar in Complaint Case No.2900 of 2012 (Old No.350 of 1995), whereby the revisionist has been summoned under section 138 of the Negotiable Instruments Act, 1881.
The facts, as elicited from the record, are that Allahabad Bank, a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, on 6.2.1995, instituted complaint, under section 138 of the Negotiable Instruments Act, 1881, against M/s Somani Investments and its authorized representative / signatory Sanjay Somani (the revisionist). In the complaint it was alleged that the revisionist issued cheque no.309886, dated 20.12.1994, drawn on ANZ Grindlays Bank, for Rupees four crores in favour of the complainant as part payment towards the adjustment of his liability. The said cheque was presented for collection of the cheque amount, on 31.12.1994. On 31.12.1994 itself, the Bankers (ANZ Grindlays Bank) returned the cheque unpaid with the remark "Refer to Drawer (insufficient funds)". Consequently, demand notice was sent under registered post on 13.1.1995, which was served on 14.1.1995. On failure to make payment within the statutory period of 15 days, complaint was filed on 6.2.1995, with documents i.e. photocopy of the concerned cheque, bank memo, notice, postal receipt, etc. From the certified copy of the order sheet, which has been brought on record through a supplementary affidavit dated 6.8.2012, it appears that the Court registered the complaint on 6.2.1995 itself and fixed 10.2.1995 for recording of statement under section 200 CrPC. The order sheet also discloses that on 21.2.1995 statement under section 200 CrPC was recorded. From Annexure 2 to the main affidavit, it appears that statement of C.L. Maurya, the branch Manager of the Complainant, was recorded, who supported the complaint case. After recording the statement, under section 200 CrPC, on 21.2.1995, the court fixed a date for arguments. Thereafter, it appears that the case got adjourned for various reasons and dates after dates were fixed in the matter. According to the counsel for the revisionist, the matter was delayed as the original of the cheque concerned was not produced. However, on 30.6.2012, an affidavit of Jitendra Nath Trivedi, the branch Manager, Allahabad Bank, was filed, which disclosed that the original of the cheque was handed over to the then Complainant's counsel Sri Vinod Lal Chandani, and since he is no more alive, the original cannot be produced. The court below finding that a prima facie case punishable under Section 138 of the Negotiable Instruments Act, 1881 was made out against the revisionist passed the impugned summoning order.
Challenging the summoning order, the learned counsel for the revisionist contended that the summoning order cannot be passed after 17 years of the presentation of the complaint. It has been contended that the complaint was filed on 6.2.1995 whereas the summoning order was passed on 18.7.2012, therefore, the proceedings should be deemed to be barred by limitation. It has further been submitted that in absence of the original of the dishonored cheque, the court below could not have acted upon the complaint allegations and proceeded to summon the revisionist. A feeble attempt was also made to challenge the validity of the summoning order on the ground that the affidavit submitted by Jitendra Nath Trivedi, who was not the complainant, without his examination in Court, could not have been relied upon.
As regards the contention that the proceedings were barred by limitation, I am of the view that if the complaint was made within the period of limitation, the complainant has done what he could do. It is for the Court thereafter to proceed and issue process. Accordingly, if the Court delays issuance of process the complainant cannot be penalized for the delay on part of the Court. The Apex Court in the case of Japani Sahoo Vs. Chandra Shekhar Mohanty, reported in (2007) 7 SCC, 394 held that the relevant date, for computing the period of limitation under Section 468 CrPC, is the date on which the complaint is filed for initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. While holding as above, the apex court, in paragraph 49 of the judgment in Japani Sahoo (supra), observed as follows:
"49. Because of several reasons (some of them have been referred to in the aforesaid decisions, which are merely illustrative cases and not exhaustive in nature), it may not be possible for the court or the Magistrate to issue process or take cognizance. But a complainant cannot be penalised for such a delay on the part of the court nor can he be non-suited because of failure or omission by the Magistrate in taking appropriate action under the Code. No criminal proceeding can be abruptly terminated when a complainant approaches the court well within the time prescribed by law. In such cases, the doctrine "actus curiae neminen gravabit (an act of court shall prejudice none) would indeed apply. (Vide Alexander Rodger V. Comptoir D' Escompte (1871) LR 3 PC 465: 17 ER 120). One of the first and highest duties of all courts is to take care that an act of court does no harm to suitors."
In the instant case, the complaint was filed on 6.2.1995, after serving notice of demand on 14.1.1995 (as per the complaint allegations). The cause of action to institute the complaint arose when no payment was made within 15 days from the date of service. Thus, the right to lodge the complaint accrued only on expiry of 15 days to be counted from 14.1.1995. As the complaint was filed on 6.2.1995 that is, within 30 days from the date of expiry of the 15 days notice, it was well within the period of limitation provided under clause (b) of Section 142 of the Negotiable Instruments Act, 1881. In the circumstances, the proceedings are not barred by limitation. Accordingly, on this ground, the summoning order cannot be faulted.
As regards the contention that in absence of the original�of the cheque the Court could not have issued process, I am of the view that at the stage of issuance of process, the Court is required to see whether a prima facie case is made out or not. Question of admissibility and reliability of secondary evidence is to be tested and assessed at a later stage, when challenge is made to the execution /issuance of the concerned cheque. Thus, the summoning order cannot be faulted on this ground.
With regards to the submission that the statement of Jitendra Nath Trivedi could not have been relied, as he was neither examined in Court nor he presented the complaint, I am of the view that this would not make a material difference at the stage of summoning. It is noteworthy that the complaint was presented on behalf of Allahabad Bank, which is a public sector bank constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, which is a Central Act. Moreover it is a Government Company under section 617 of the Companies Act. Therefore, by virtue of Section 21 clause Twelfth of Indian Penal Code read with Section 2(y) of the Code of Criminal Procedure, its branch Manager, who presented the complaint, would be a "public servant" and, as such, by virtue of the decision of the Apex Court in the case of National Small Industries Corporation Ltd. V. State (NCT of Delhi) (2009) 1 SCC 407 (vide paragraphs 16, 19 and 20 of the judgment) the benefit of the proviso to Section 200 CrPC i.e. exemption from examination of the complainant and the witnesses, would be available, even though Allahabad Bank (the Company) was the complainant. Accordingly, the summoning order cannot be faulted on this ground as well.
Before parting, the Court expresses deep anguish at the prevailing state of affairs that in a matter like this, the court below took 17 years to issue process, when the statement under section 200 CrPC, which was not even required by law, was recorded 17 years back. Matters under section 138 of the Negotiable Instruments Act, 1881 are to be dealt with utmost expedition otherwise the very purpose, for which the provision was inserted in the Act, would stand frustrated.
For the reasons mentioned above, I do not find any illegality, impropriety or jurisdictional error in the summoning order. The revision application is, accordingly, dismissed.
The Registry is directed to send a copy of this order to the court concerned, within three weeks from today, for information.
Order Date :- 23.8.2012/G.S
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