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Zenith Fashion Makers (P) Ltd. v/s Ultimate Fashion Makers Ltd. & Another

    Crl.M.C.No. 299 of 2005

    Decided On, 30 May 2005

    At, High Court of Delhi


    For the Petitioner: Vineet Malhotra, Rakesh Malhotra, D.K. Singh, Advocates. For the Respondents: R1, D.C. Mathur, Senior Advocate with K.K. Manan, Advocate.

Judgment Text

ManjuGoel, J.

1. Courts are often accused of delaying disposal of cases. A peculiar question has cropped up in this case because a Metropolitan Magistrate (in short ‘M.M.’) has been too quick to take action on a complaint. The complaint under Section 138 of Negotiable Instruments Act was filed by the respondent for dishonour of two cheques No. 615385 dated 20.7.2003 of Rs. 8,00,000/- and No. 615387 dated 20.9.2003 of Rs. 3,00,000/-. Both the cheques were dishonoured on account of insufficiency of funds. The return memo of the bank is dated 20.9.2003. The legal notice under Section 138 of Negotiable Instruments Act was issued on 15.10.2003 through Regd. Post as well as through speed post. The postal acknowledgement card shows service on 18.10.2003. The complainant pleaded that the notices were duly received but no payment in respect of the dishonoured cheques was made within 15 days of the notice as was required by the law as well as by the notice. The complaint is presented on 31.10.2003. The Magistrate took cognizance on 31.10.2003 itself and directed issue of process on the same day. What is contended in this petition under Section 482, Cr.P.C. is that the notice of demand being of 15.10.2003, despatched on 17.10.2003 and received on 18.10.2003, the complaint was filed within 15 days after service of notice and hence was pre-mature as the cause of action could accrue only after 15 days of the notice, i.e., on 3.11.2003.

2. There is no dispute about the fact that the complaint was presented before the expiry of 15 days within which the petitioner/accused could have complied with the notice by paying the amount of the cheques. There is also no dispute about the fact that the Magistrate took cognizance before the expiry of the 15 days, i.e., when the offence had not come into existence. According to the petitioner, since there was no offence on the date the complaint was presented, the Magistrate could not have taken cognizance and, therefore, the order of summoning is bad and the complaint, therefore, can be quashed. At the same time, there is no plea on the side of the petitioner that the petitioner would have paid the cheque amount had the respondent given it the required time. In fact, the petitioner is disputing the very liability under the cheque and is categorical that it shall not pay the amount of the two cheques in question.

3. The situation, therefore, is that the cause of action in any case would have arisen on the expiry of 15th day of the service which in this case would have been 3.11.2003. A nearly similar situation arose in the case of Narsingh Das Tapadia v. Goverdhan Das Partani & Anr., reported as I (2001) BC 113 (SC)=IV (2000) SLT 523=III (2000) CCR 160 (SC)=2000 (2) JCC (SC) 615. In this case the conviction by the trial Court for an offence under Section 138 of Negotiable Instruments Act was set aside by the High Court holding that the complaint was pre-mature. The Supreme Court held that mere presentation at an early date need not necessarily render the complaint liable to be dismissed and that such a pre-mature presentation would not confer any right upon the accused to be absolved from the criminal liability for the offence committed. In that case although the complaint was presented pre-maturely the Magistrate did not take cognizance immediately on presentation of the complaint. The Magistrate took cognizance subsequently and by the time the Magistrate took cognizance more than 15 days of the notice had passed. Accordingly, the Supreme Court held that the Magistrate had taken cognizance when the cause of action had matured and, therefore, there was no illegality in the proceedings. Explaining the law on the subject, the Supreme Court said:

'10. Mere presentation of the complaint in the Court cannot be held to mean that, its cognizance had been taken by the Magistrate. If the complaint is found to be pre-mature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed.'

4. Keeping in view this judgment of the Supreme Court, the complainant could have been entirely safe if the Magistrate had waited for the period of 15 days to lapse. The question, therefore, is whether the complaint can be quashed on this ground. It is clear from the above narration that complaint, even though filed before the maturity of the cause of action, could not have been quashed only on that ground. The additional factor that has taken place in this case is the cognizance by the Magistrate. Can this action of the Magistrate damage the right of the complainant? Can an action of the Court defeat the legitimate claim of the complainant to prosecute the accused for the offence? As said earlier the situation would have been entirely safe had the Magistrate waited for three more days before taking cognizance.

5. In my opinion, the action of the Court or in other words the mistake of the M.M. cannot defeat the claim of the complainant. It cannot be lost sight of the fact that if the order of the Magistrate is set aside now no fresh complaint under Section 138 of Negotiable Instruments Act can be brought in view of the provisions of the limitation prescribed under Section 142 of the Negotiable Instruments Act. Therefore, the complainant, in that eventuality, will be denied the right to justice for no fault of his own. It has to be noticed that no prejudice of any kind has been caused to the petitioner by taking a pre-mature action. The mere technical flaw cannot be allowed to defeat the ends of justice.

6. In this case the age-old maxim ‘actus curiae neminem gravabit - an act of the Court shall prejudice no man’ can be recalled. Recalling this maxim, the Supreme Court in the case of A.R. Antulay v. R.S. Nayak & Anr., reported as (1998) 2 SCC 602 (671) had this to say:

'...... It has been said long time ago that ‘actus curiae neminem gravabit’ - an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.

82. Lord Cairns in Rodger v. Comptoir D’escompte De Paris observed thus-

Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression ‘the act of the Court’ is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.

83. This passage was quoted in the Gujarat High Court by D.A. Desai, J. speaking for the Gujarat High Court in Soni Vrajlal v. Soni Jadavji as mentioned before. It appears that in giving directions on February 16, 1984, this Court acted per incuriam inasmuch as it did not bear in mind consciously the consequences and the provis

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ions of Sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar case which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If the man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis.' 7. In my opinion, it will be incorrect and unjust to quash the complaint. The petition under Section 482, Cr.P.C. is accordingly dismissed.