Criminal Application No.593 of 2002

4th April, 2002

Petitioner Counsel: Mr. SHIRISH GUPTE, CRAWFORD BAYLEY & CO.
Respondent Counsel: Mr. A. P. MUNDARGI , RAJENDRA SORANKAR, KISHOR BHATIA, Mr. M. Y. MIRZA

Cases Cited:
M.A. Abdul Khuthoos Vs. M/s. Ganesh & Coy Oil Mills., 1999 Cr.L.J. 2432 [Para 2]

JUDGMENT

JUDGMENT :- The applicant seeks quashing of the order dated 5.11.2001 passed by the learned Additional Chief Metropolitan Magistrate, Mumbai in Criminal Case No.985/S/1997 recalling the process against respondents no.1 to 5.

2. The applicant had filed a complaint under Section 138 read with 141 of the Negotiable Instruments Act on 6.3.1996. This complaint was neither signed nor verified by the complainant but the complaint was signed by M/s. Crawford Bayley & Company, Advocate for the complainant. It appears that no Vakalatnama had also been given by the complainant in favour of M/s. Crawford Bayley & Co. for the purpose of filing the complaint. The verification of the complaint under Section 200 Code of Criminal Procedure was recorded on 6.5.1996. The process was issued against the respondents on 17.9.1996. The application for recall of process was filed by all the respondents on 23.3.2001. The complainant filed reply on 12.7.2001. The trial Court, after hearing both sides, came to the conclusion that since the complaint was not signed by the complainant nor any Vakalatnama was filed by the complainant in favour of M/s. Crawford Bayley & co., the complaint was no complaint in the eyes of law. Relying upon the provisions of Section 142 of the Negotiable Instruments Act, and judgment of the Madras High Court in the case of M.A. Abdul Khuthoos Vs. M/s. Ganesh & Coy Oil Mills (1999 Cr.L.J. 2432), the application for recall of process was allowed.

3. The learned Advocate appearing on behalf of the applicant urged before me that Section 142 of the Negotiable Instruments Act does not define 'complaint' and for that purpose one has to refer to Section 2(d) of the Code of Criminal Procedure which lays down that a complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but does not include a police report. According to the learned Advocate for the applicant, this definition of complaint does not postulate that it is required to be signed since complainant can even make an oral complaint before the Court. Therefore, it is urged that it is not necessary that the complaint should be signed by the complainant and when the Magistrate takes cognizance under Section 200 Code of Criminal Procedure, the Magistrate obtains signatures of the complainant on the said verification. The learned Advocate for the applicant drew my attention to Section 460 and 461 of the Code of Criminal Procedure and pointed out that the fact that the complaint is not signed may at the most be an irregularity which does not vitiate the but it is and an illegality so as to vitiate the proceedings. He, therefore, submits that in the context when the verification of the complainant had been recorded by the Magistrate, which was duly signed by the complainant, the impugned order recalling the process is required to be set aside.

4. On the other hand, the learned advocate for the respondents urged before me that complaint has to be signed by the complainant. In case complaint is made orally to the Magistrate, the Magistrate is required to record the same and the complainant has to sign the same and in case the complaint is in writing,it has necessarily to be signed by the complainant. It is also submitted by the learned advocate for the respondents that in the case under consideration, neither the complaint was signed by the complainant nor even Vakalatnama was given by the complainant to M/s. Crawford Bayley & co., who had signed the complaint and, therefore, when the complaint was presented it was no complaint in the eyes of law and the subsequent verification after the period of limitation would not in any manner help the complainant in view of the fact that such complaint complete in all respects is required to be made under Section 142(b) within one month of the date of cause of action under Clause (c) of the proviso to Section 138 and on the date of verification. According to him, the complaint on the date of verification under Section 200 Cr.P.C. on 6.5.1996 was very much beyond the period of limitation due to which the Court could not have taken cognizance of the matter under Section 142 of the Negotiable Instruments Act. He, therefore, contends that the order of the trial Court does not call for any interference whatsoever.

5. The general principle of Criminal law is that any person can set the law in motion. However, section 142 of the Negotiable Instruments Act which deals with cognizance of the offences provides that notwithstanding anything contained in the Criminal Procedure Code, 1973, no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing made by the payee or, as the case may be, holder in course of the cheque. Section 142 starts with non-obstante clause which means that cognizance can be taken by the Court on a complaint in writing. Therefore, the definition of the expression, "complaint" under Section 2(d) which provides for an allegation made orally would not be attracted in so far as cognizance of the complaint filed under Section 142 of the Negotiable Instruments Act is concerned. The requirement of complaint being in writing is that when the facts are found to be incorrect, action can be taken against the complainant and it is for this purpose that verification of the complainant is required to be made by the complainant. Therefore, reading of Section 142 of the Negotiable Instruments Act would go to show that for the purpose of taking cognizance of any offence punishable under Section 138 of the Negotiable Instruments Act, there has to be a complaint in writing by the payee or, as the case may be, holder in due course of the cheque. The verification of the complaint under Section 200 Code of Criminal Procedure is altogether different since said verification is required to be made in order to determine prima facie truthfulness of the complaint for the purpose of issuing process. In my opinion, therefore a complaint under Section 142 of the Negotiable Instruments Act is required to be in writing and signed by the complainant. Any complaint which is not signed by the complainant is, therefore, incomplete and on an incomplete complaint, no cognizance can be taken under Section 142 of the Negotiable Instruments Act. Besides this, verification under Section 200 Criminal Procedure Code in this case was done on 6.5.1996 and admittedly on this date, the complaint was barred by limitation under Section 142(b) of the Negotiable Instruments Act which requires that such a complaint is required to be made within one month from the date on which the cause of action arises under clause (c) of the proviso under Section 138 of the said Act. On the date of verification, the complaint in question was barred by limitation and obviously the Magistrate could not have taken cognizance of the same.

6. I am supported in my view by the judgment of the Madras, High Court in M.A.Abdul Khuttoos V/s. M/s.Ganesh & Coy Oil Mills (supra) which lays down that reading of Section 142 would clearly reveal that the complaint must be in writing made by the payee which means that the complainant has to put his signature on the written complaint being made before the Court. In the case before the Madras High Court, the complaint was initially filed without signatures and it was returned to the complainant who again presented the same with signatures, but beyond the period of one month from the date of commencement of cause of action. The complaint was quashed as time barred. In this set of facts, I find that no interference is called for with the impugned order. Application is, therefore, summarily rejected.

Application rejected.