M/S.Sujana Universal v. Uco Bank
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 05.07.2016 PRONOUNCED ON:13.07.2016
CORAM:
THE HON'BLE MR. JUSTICE P.N. PRAKASH Crl.O.P. No.13391 of 2016 and Crl.M.P. Nos.6877 & 6878 of 2016 Sujana Universal Industries Ltd.
41, Nagarjuna Hills Punjagutta Hyderabad Telengana - 500 082 represented by its Managing Director G. Srinivasa Raju S. Hanumantha Rao K. Srinivasa Rao ... Petitioners /Accused vs.
UCO Bank International Banking Branch - III Floor 328, Thambu Chetty Street Chennai 600 001 represented by its Chief Manager ... Respondent/Complainant Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in C.C. No.835 of 2016 on the file of the VII Metropolitan Magistrate, George Town, Chennai and quash the same.
For petitioners Mr. G. Ravikumar For respondent Mr. Selvakumar
ORDER
This Criminal Original Petition is filed seeking to call for the records in C.C.No.835 of 2016 on the file of the VII Metropolitan Magistrate, George Town, Chennai and quash the same.
For the sake of convenience, the petitioners and the respondent will be referred to as "accused" and "complainant" respectively.
3.1 It is the case of the complainant that the accused availed an Irrevocable Inland Letters of Credit facility from the complainant for purchase of steel products from Tejaswini Engineering Private Ltd. on 24.03.2015 for sums of Rs.5,02,80,000/- and Rs.9,99,99,901/-.
3.2 According to the said facility, the amount becomes payable to the negotiating bank once the bill raised for purchase of the products is not paid within 90 days stipulated in the Letter of Credit.
3.3 It is the case of the complainant that the accused purchased steel products from Tejaswini Engineering Private Ltd. on the strength of the Letters of Credit and the complainant paid the amount to the latter. The two cheques given by the accused for Rs.5,02,80,000/- and Rs.9,99,99,901/- dated 02.06.2015 and 22.06.2015 were dishonoured for insufficiency of funds, pursuant to which, the complainant issued a statutory notice dated 23.09.2015 and on the failure of the accused to comply with the demand, has launched a prosecution in C.C. No.835 of 2016 before the VII Metropolitan Magistrate, George Town, Chennai, against the accused for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity "the NI Act") in respect of the two dishonoured cheques, challenging which the accused are before this Court.
Heard Mr. Ravikumar, learned counsel for the accused and Mr.Selvakumar, learned counsel for the complainant. Mr. Ravikumar principally raised four issues in respect of his plea for quashment of the prosecution. They are as under: I Limitation:
To appreciate his contention, he submitted a ready reckoner chart which is as follows:
Cheque No.83255 S.No .
Description and Events Cheque No.
832548 Date of the cheque 02.06.2015 22.06.20 Amount 5,02,80,00 9,99,99,
Cheque No.83255 S.No .
Description and Events Cheque No.
832548 Cheque presented for collection on 29.08.2015 14.09.20 Cheque dishonoured on 29.08.2015 14.09.20 Statutory notice issued by the respondent/complainant 23.09.2015 09.10.20 Statutory notice received by the petitioners 29.09.2015 15.10.20 Reply notice issued by the petitioners/accused 29.10.2015 29.10.20 Cause of action starts as per Section 138(c) of Negotiable Instruments Act 14.10.2015 31.10.20 Complaint to be filed on or before 13.11.2015 30.11.20 Single complaint filed by the respondent/complainant before the trial Court for two distinct offences under Section 138 of Negotiable Instruments Act on 26.11.2015 26.11.20 Mr. Ravikumar, learned counsel for the accused, submitted that the complaint in this case was presented only 26.11.
2015 before the VII Metropolitan Magistrate Court, George Town, Chennai, which is beyond the period of limitation prescribed under Section 138 of the NI Act. In other words, he submitted that in respect of the cheque for Rs.5,02,80,000/-, the complaint should have been presented on or before 13.11.2015 and in respect of the cheque for Rs.9,99,99,901/-, the complaint should have been presented on or before 30.11.2015, whereas, for both the cheques, a single complaint has been presented on 26.11.2015 and hence, the prosecution is barred by limitation. This Court called for a report from the VII Metropolitan Magistrate, George Town, Chennai and the report dated 04.07.2016, received from the Magistrate, unmistakably points out that the complaint was presented on 06.11.2015 and not on 26.11.2015, as alleged by Mr. Ravikumar.
When this report was brought to the notice of Mr.
the same and stated that he did not notice any material evidence to show that the complaint was presented on 06.11.2015, as reported by the VII Metropolitan Magistrate, George Town, Chennai. The learned Metropolitan Magistrate, in his report dated 04.07.2016, has stated that the complaint was presented on 06.11.2015 and it was returned to the complainant on 26.11.2015 for compliance of certain returns and the complaint was represented on 11.02.2016 with a re-presentation delay of 73 days, which was condoned on 11.02.2016 itself in Crl.M.P. No.291 of 2016.
This Court has no reason to disbelieve the assertion of the VII Metropolitan Magistrate that the complaint was presented on 06.11.2015 and quash the complaint on the assertion of the learned counsel for the accused that the complaint was filed on 26.11.2015. From the ready reckoner chart filed by the learned counsel for the accused which is extracted above, it can be seen that the cause of action for the cheque for Rs.5,02,80,000/- began on 14.10.2015 and for the cheque for Rs.9,99,99,901/- , the cause of action began on 31.10.2015. As per the report of the VII Metropolitan Magistrate, George Town, Chennai, the complainant has filed the complaint on 06.11.2015, which is well beyond the causes of action period of both the cheques and well within the period of limitation in respect of both the cheques. Hence, the first submission of the learned counsel for the accused does not cut ice with this Court.
Further, Mr. Ravikumar relied upon a Division Bench judgment of this Court in A. Vinayagam vs. Dr. Subash Chandran [2000-1 LW Crl.460] and contended that the date of seal is the determinative factor to show the date of presentation of the complaint.
It is common knowledge that all complaints must be presented in the open court to the Presiding Officer and only thereafter, the ministerial officer of the court will affix the Court seal. In this case, when the Judicial Officer himself says in unequivocal terms that the complaint was presented on 06.11.2015, Mr.Ravikumar's contention that the complaint bearing the date seal as 26.11.2015 has to be given more importance than the assertion of the Judicial Officer himself, cannot be countenanced.
II Joinder of causes of action:
Mr. Ravikumar further submitted that the two cheques have got two different causes of action and therefore, a single complaint is not maintainable. In support of this contention, he relied upon the following judgments:
i judgment of Kerala High Court in Sidhardhan vs. Prasannan [2006 (2) KLT 55] ii judgment of Gujarat High Court in Jayeshbhai Jayanthibhai Maniar vs. State of Gujarat [(2005) 2 GLR 1451] and iii unreported judgment dated 03.08.2011 of Rajasthan High Court in Umrao Mal Chordiya vs. Assam Roller Flour Mills and contended that clubbing of two causes of action in a single complaint is illegal and therefore, the complaint should be quashed.
In the aforesaid three judgments, a request was made by the accused to club the different complaints filed by the complainants therein and their request was turned down by the High Courts on the ground that Section 219 Cr.P.C. cannot be pressed into service for prosecution under Section 138 of the NI Act, inasmuch as the NI Act is a special Act. In none of the above three judgments, the prosecution has been quashed on the ground canvassed by Mr.Ravikumar. The case at hand is predicated on an Irrevocable Inland Letter of Credit dated 24.03.2015 after filing which, the accused did not make the two payments under the instrument. Section 219(1) Cr.P.C. reads as follows: "219 Three offences of same kind within year may be charged together:
(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three."
A reading of the above provision would make it manifest that if a person commits the same type of offence within a period of twelve months, he can be tried in a single trial, provided that the number should not exceed three. In this case, the two cheques given by the accused in connection with the Letter of Credit dated 24.03.2015 have bounced within a
period of 12 months and therefore, there is no illegality in the prosecution at hand.
III Delay condonation:
Mr. Ravikumar contended that the delay in launching the prosecution should not have been condoned by the VII Metropolitan Magistrate, George Town, Chennai under the provisions of Section 142(1) of the NI Act, without notice to the accused.
This argument proceeds on the supposition that the complaint was presented on 26.11.2015, whereas, this Court has rejected this contention based on the report given by the VII Metropolitan Magistrate that the complaint was actually presented on 06.11.2015.
As regards the delay in re-presentation, there is no necessity to issue notice to the accused. These are purely matters of procedure between the Court and the complainant. Had the complaint been presented beyond the period of limitation, then, perhaps, the delay cannot be condoned without due notice to the accused. As stated above, in this case, there appears no delay in launching the prosecution, but, the delay in representation for complying with the returns has been condoned by the Magistrate without notice to the accused, which cannot be said to be illegal.
IV No legal liability to honour cheques:
Mr. Ravikumar produced certain bank statements and contended that the amounts covered under the two cheques have already been paid to the complainant. He placed reliance upon the judgment of the Supreme Court in State of Orissa vs. Debendra Nath Padhi, [(2005) 1 SCC 568] and submitted that the photocopies of the bank statements enclosed by him in the typed set of papers are documents of unimpeachable character and sterling quality.
In the considered opinion of this Court, photocopies of bank statements, can, by no stretch of imagination, fall within the category set down in Debendra Nath Padhi case for this Court to rely upon them and quash the prosecution. The learned counsel for the complainant strongly refuted the documents and submitted that they do not relate to the dispute at hand.
In the reply notice dated 29.10.2015 issued by the accused, they have taken a stand that the two cheques were issued as a security for the Letter of Credit payment and when the Letter of Credit amount is paid to the cash credit account, the cheques would become null and void. This stand of the accused requires to be established only during trial and the prosecution cannot be quashed based on the entries shown in the photocopies of bank statements. It is trite that disputed questions of fact cannot be determined in proceedings under Section 482 Cr.P.C.
In the result, this Criminal Original Petition is dismissed as being devoid of merits. Connected Crl.M.Ps. are closed. Crl.O.P. No.13391 of 2016 P.N. PRAKASH, J.
After the orders were pronounced, the learned counsel for the petitioners submitted that the petitioners 3 and 4 are aged persons and their presence before the Trial Court may be dispensed with.
Accepting the said submission of the learned counsel for the petitioners, the petitioners 2,3 and 4 are directed to appear before the Magistrate concerned and on their appearance, they shall be released on bail by the Magistrate under Section 436 Cr.P.C. on the same day on they furnishing a bond for Rs.5,000/- with two sureties (common sureties). Thereafter, the petitioners 3 and 4 are directed to be present for receiving the charge sheet, for answering the charge at the time of questioning under Section 313, Cr.P.C. and at the time of passing judgment. The petitioners 3 and 4 shall file affidavit of undertaking before the Trial Court that they will not dispute their identity and that their counsel will cross-examine the prosecution witnesses on the day they are examined-in-chief and that they will not adopt dilatory tactics.
On such undertaking, the Trial Court shall dispense with the personal appearance of the petitioners. If the petitioners adopt any dilatory tactics, the Trial Court can insist on their presence.
To The Chief Manager, UCO Bank, International Banking Branch - III Floor, 328, Thambu Chetty Street, Chennai 600 001.
The VII Metropolitan Magistrate, George Town, Chennai.
The Public Prosecutor, High Court of Madras, Chennai 600 104.
+2cc to Mr.G.Ravikumar, Advocate Sr.39010 Crl.O.P. No.13391 of 2016 ev[co] srg 19/07/2016