Criminal Application No.480 of 1999

16th September, 2002

Petitioner Counsel: Mr. V. V. BHANGDE
Respondent Counsel: Mrs. T. D. KHADE

Cases Cited:
M. A. Abdul Khutoos Vs. M/s. Ganesh & Coy Oil Mills, 1999(4) ALL MR (JOURNAL) 3 [Para 2]
State of Maharashtra Vs. Dr. Budhikota Subbarao, (1993) 3 SCC 339 [Para 3]
Delhi Development Authroity Vs. Kochhar Construction Work, (1998) 8 SCC 559 [Para 3]
State of Kerala Vs. M. S. Mani, 2001 (6) SCALE 258 [Para 3]

JUDGMENT

JUDGMENT :- The applicants seek to quash and set aside the order of issuing process as well as order dated 14-1-1999 passed in Criminal Complaint Case No.1275 of 1996. The respondent no.1 had filed a complaint under Section 138 of the Negotiable Instruments Act read with Sections 403, 406 and 420 of the Indian Penal Code against the present applicants. This complaint was presented to the Court on 22-11-1996 and on the same day complainant was examined under Section 200 Cr.P.C. Process was issued against the present applicants under Section 138 of the Negotiable Instruments Act vide order dated 6-2-1997. The present applicant no.1, viz. accused no.1 filed an application on 1-4-1997 for dismissal of the complaint as the same was not signed by the complainant and as such was not maintainable. This application was disposed of by the Trial Court vide order dated 14-1-1999 stating that the learned predecessor had already taken cognizance of the case and process was issued and as such, accused could not raise objection since the Court had already taken cognizance of the matter. The respondent no.1 had also filed an application for permission to sign the complaint and Vakalatnama and this application was also dismissed on the ground that the predecessor had already taken cognizance of the matter and process issued as a result of which application became infructuous.

2. Learned Advocate appearing on behalf of the applicants urged before me that Section 142 of the Negotiable Instruments Act lays down that no court shall take cognisance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. Thus, according to the learned Advocate for the applicants, written complaint is sine-qua-non for taking cognizance under Section 138 of the Negotiable Instruments Act and a written complaint obviously is required to be signed by the complainant and in the absence of any signature of the complainant on the complaint, the Court could not take cognizance and could not have examined the complainant under Section 200 Cr.P.C. Therefore, according to learned Advocate for the applicant, the signing of verification statement on the same day would not cure the defect and bar created by Section 142(a) of the Negotiable Instruments Act. Learned Advocate for the appellant relied upon the judgment of the Madras High Court in M.A. Abdul Khutoos Vs. M/s. Ganesh & Coy Oil Mills (1999(4) ALL MR (JOURNAL) 3) in support of his contention that a complaint is required to be signed and the oral examination under Section 200 Cr.P.C. would not cure defect in view of Section 142(a) of the Negotiable Instruments Act which requires a complaint to be made in writing.

3. Learned Advocate for applicants also relied upon three judgments of the Apex Court on the question of bar of taking cognizance. In State of Maharashtra Vs. Dr. Budhikota Subbarao (1993) 3 SCC 339, failure to obtain sanction for prosecution was held to have vitiated the entire proceedings against the accused inasmuch as requirement of obtaining sanction for prosecution was mandatory and the bar of taking cognizance of offence in the absence of sanction was absolute. In Delhi Development Authority Vs. Kochhar Construction Work & anr. (1998) 8 SCC 559, an unregistered Firm had filed application for arbitration under Section 20 of the Arbitration Act and by virtue of bar under Section 69(2) of the Partnership Act, it was held that the proceedings were ab initio defective and subsequent registration of the Firm done even if before the period of limitation had run out, cannot cure the initial defect. In State of Kerala Vs. M.S. Mani & ors. (2001 (6) SCALE 258), the consent of Attorney General/Solicitor General had not been taken for initiating proceedings. The contempt petition was filed on 17th May 1999 and it was held that the fact remains that the motion to take action against the respondents under Section 15 was not made with the consent of the learned Attorney General or Solicitor General and therefore is incompetent and subsequent obtaining of the consent does not cure the initial defect so as to convert the incompetent motion into a maintainable petition.

4. In the case under consideration, complaint in writing was actually filed before the Court on 22-11-1996. Admittedly, the said complaint was not signed. However, complainant was present in the Court, but unfortunately it appears that even the Magistrate did not notice this defect and did not ask the complainant to sign the complaint. However, he examined the complainant under Section 200 Cr.P.C. on the same day, that is to say, on 22-11-1996 and the said verification was signed by the complainant. It is in the light of these facts that the question of non-signing of the complaint is required to be examined.

5. It is, no doubt, true that Section 142(a) of the Negotiable Instruments Act enjoins that no court shall take cognizance of any offence punishable under section 138 except upon a complaint in writing. Nevertheless, this is a case where, though the complaint was made in writing it was not signed and the Magistrate on the same day had examined the complainant under Section 200 Cr.P.C. and obtained signatures of the complainant on the same day. On that date, the complaint was well within the period of limitation. In this view of the matter, I am of the opinion that non-signing of the complaint does not go to the root of the matter whereas rulings upon which reliance has been placed relate to the bar on account of mandatory requirement of registration, prior consent of Advocate General and prior sanction for prosecution which go to the root of the matter. In the case under consideration, there is mere technical irregularity that the complaint was not signed, but the complainant was very much available in the Court and even his signature could have been taken by the Court, but it appears that this fact was not noticed. The complainant was examined under Section 200 Cr.P.C. on the same day and his signatures were taken on the verification.

6. In view of this, I am of the opinion that the order in question, though reasoning given is not correct, cannot be interfered with. Application is accordingly dismissed. R & P shall be sent back as expeditiously as possible and the Trial Court shall proceed with the matter in accordance with law.

Application dismissed.