(These appeals are filed against the Judgment made in S.T.C.Nos.2664 of 1997 and 2665 of 1997 respectively dated 20.04.2000 on the file of the Court of Judicial Magistrate No. V. Coimbatore.)
These appeals arise out of the Judgment in S.T.C.No.2664 and 2665 of 1997 respectively on the file of the Court of the Judicial Magistrate No V, Coimbatore dated 20.4.2000. The complainant is the appellant in both the appeals.
2. The short facts relevant for the purpose of deciding these appeals are as follows:
The first accused is a partnership firm. The second accused and the third accused are its partners. The second accused, at the time, when the offence was committed, was in charge and responsible to the firm for the conduct at the business of the firm. The complainant supplied knitted fabrics worth Rs.6,00,000/- to the first accused firm on credit. The first accused manufactured 13140 pieces of Batik T-Shirts and entrusted the same with the complainant company to export to their client who are placed at Germany. The understanding between the parties that they have collected the sale proceeds and permit the complainant company to take knitted fabrics for the value of Rs.6,00,000/- and in this regard an agreement has been entered into between the parties on 10.4.1994 in fact to indemnify for the loss incurred in this deal of export of the Batik-T-Shirt. M/s Fashion Pool failed to pay the bills, the value of the shirts exported to them, they could not be realised. So the second accused on behalf of the first accused firm in order to indemnify the loss incurred by the complainant's company issued six cheques on different dates.
3. The complainant presented the cheques 1 to 4 for encashment through Punjab National Bank, the cheques were returned unpaid "due to insufficient funds" on 8.3.1997. The cheque NO.5 was presented for encashment on 8.3.1997 through the same Bank and it was also returned unpaid "due to insufficient funds" on 11.3.1997. The complainant caused a registered lawyer's notice to the accused on 22.3.1997 but the said notices were returned unserved. Hence the complaint.
4. The sworn statement was taken from the complainant and the learned Judicial Magistrate returned the original complaint filed by the complainant with an endorsement that under Section 219 Cr.P.C., the complaint is not maintainable. There was no time specified in the return for re-presentation. Subsequently, the complainant came forward with two fresh complaints and the same was taken on file by the learned Judicial Magistrate in S.T.C.NO.2664 of 1997 and 2665 of 1997 respectively.
5. In S.T.C.No.2664 of 1997, P.Ws 1 and 2 were examined and Exs P1 to P4 were marked. On the side of the accused, neither oral nor documentary evidence was let in. In S.T.C.No. 2665/1997,P.Ws1 and 2 were examined and Exs P1 to P4 were marked. The accused has not let in any evidence.
6. After going through the oral and documentary evidence available, the learned Judicial Magistrate has dismissed the complaints on the ground that they are barred by limitation. Hence the complainant is before this Court.
7. Now the point for consideration in these appeals is whether the judgment in S.T.C.No.2664/1997 and 2665/1997 respectively on the file of the Court of Judicial Magistrate No.V, Coimbatore are liable to be set aside for the reasons stated in the respective memorandum of appeals?
8. I heard Mr. A. Natarajan, learned Senior Counsel appearing for the appellant/complainant and Mr. C. Ravichandran, learned counsel appearing for the respondents/accused and considered their rival submissions.
9. The Point:
The learned Senior Counsel appearing for the appellant relying on Manjula-v- M/s Colgate Palmolive (India) Limited, represented by its authorized signatory T. Harikumar(2006-2.L.W.(Crl.851) and contended that in view of Section 219 of the Code of Criminal Procedure, the complainant cannot re-present the earlier complaint returned by the Judicial Magistrate with five cheques. That is why the complainant had presented two fresh complaints along with the old complaint and that since there was no time specified in the return of the original complaint by the learned Judicial Magistrate, the second complaint preferred along with the original complaint by the complainant is not barred by limitation.
10. The short facts of the above said ratio are as follows:
The complainant had filed a complaint along with 16 dishonoured cheques drawn by the accused in favour of the complainant, wherein a Division Bench of this Court has held that an offence committed by the same person in respect of 16 cheques must certainly be held to be part of the same transaction considering the purpose, the sequence, events, nature of the allegation, proximity of commission, unity of action etc.and Section 219 (1) Cr.P.C. permits joinder of all charges provided they are offences of the same kind, the number of transactions and the cheques issued prior to the issuance of the statutory notice under Section 138(b) of the Negotiable Instruments Act could at best be considered as bundle of facts giving rise to a cause of action. But as far as the case on hand is concerned, the complainant has re-presented one complaint with three cheques with the original returned complaint. He has filed a separate complaint in respect of the two other cheques. As far as the second new complaint in respect of two cheques is concerned, it is clearly barred by limitation because that was not presented with the original complaint. In the second complaint, the complainant has stated at paragraph 5 that as per the return of the original complaint dated 12.5.1997, he has filed two separate complaints along with the new complaint as well as the former complaint dated 26.4.1997 also(The correct date is 23.4.1997) and further specifically stated that the former complaint may be read as part and parcel of the new complaint.
11. The learned Magistrate has dismissed both the complaints on the ground that notice of intimation was given to the accused on 25.3.1997 and as per Section 138(a) of Negotiable Instruments Act, within six months from the date of intimation regarding the dishonour of the cheque to the accused, the complaint must be preferred. But the complaint was filed only on 23.4.1997 which was returned on 29.4.1997. But two fresh complaints ought to have been filed on or before 9.5.1997 but since they were filed only on 4.9.1997, the complaints are barred by limitation. But I am of the view that since the complaint in S.T.C.No.2664 of 1997 along with three cheques was filed along with the original complaint, which was returned without any specific date for re-presentation, the complaint is in time.
12. As far as the second complaint filed in S.T.C.No.2665 of 1997 is concerned, two cheques are clearly barred by limitation since they were not filed along with original complaint.
13. The learned counsel appearing for the respondents/accused relying on M.A. Abdul Khuthoos-v-Ganesh and Coy Oil Mills (1999 Crl L.J.2432) and contended that if a returned complaint is re-present beyond the time stipulated in the returned complaint, it cannot be said that the complaint was filed in time. The facts of the said dictum is that the accused had issued two cheques one dated 29.9.1995 for Rs.25,703/- and another dated 4.10.1995 for a sum of Rs.26,078/- to discharge the liability of the complainant and on presentation both the cheques were dishonoured on 13.3.1996. After issuing the statutory notice contemplated under law, the complainant filed a complaint against the accused on 25.4.1996 for the offence under Section 138 of the Negotiable Instruments Act. When the complaint was presented, the learned Judicial Magistrate, Gudiyatham found that there was no signature by the complainant in the said complaint. So on the same date, it was returned with an endorsement that the petitioner's signature is not obtained in the complaint and the complaint was returned on 25.4.1996. Later it was returned on 15.5.1996. On the same date, sworn statement was taken by the learned Judicial Magistrate from the complainant. The case was taken on file and coming to know that the complaint was presented without signature of the complaint on 25.4.1996 and thereafter it was represented with the signature of the complaint on 15.5.1996, the petitioner has moved this Court to quash the proceedings mainly on the ground that the cognizance taken in this case is invalid one, in view of the fact that the complaint was entertained beyond the period of limitation as contemplated under Section 142 of Negotiable Instruments Act. Accepting the case of the accused, the learned Judge of this Court has quashed the proceedings on the ground that the complaint was time barred. The only ground on which the complaint in that case was held to be invalid is that the complainant has failed to sign in the complaint even on the first date of the presentation of the complaint. But it is not the case herein. So facts of the said ratio decidendi will not be applicable to the present facts of this case.
14. It is pertinent to note in this case that the learned Judicial Magistrate has clearly observed at para
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graph 20 of his Judgment that he is not dealt with the other points regarding the merits of the case since he has held that the prosecution is barred by limitation. In view of my observation made earlier, I am of the considered view that Crl.A.No.389 of 2000 is liable to be allowed in respect of three cheques since the complaint was filed along with the earlier complaint which was returned without any date specifying for re-presentation and it is also necessary in case of this nature, a finding as to whether an offence under Section 138 of the Negotiable Instruments Act has been made out or not against the accused. Under such circumstances, Crl.A.No.389 of 2000 is allowed and the Judgment in S.T.C.No.2664 of 1997 is set aside and the matter is remanded to the trial Court with a direction to give finding in respect of all issues on merits and both parties are at liberty to let in further evidence. Crl.A.No.390 of 2000 is dismissed confirming the Judgment in S.T.C.No.2665/1997on the file of the Court of Judicial Magistrate No.V, Coimbatore.