Criminal Application No.3320 of 2007

22nd September, 2008

Petitioner Counsel: Mr. P. S. SADAVARTE
Respondent Counsel: Mr. G. L. BAJAJ

Cases Cited:
C. C. Alavi Haji Vs. Palapetty Muhammed, 2007 ALL MR (Cri) 2044 (S.C.) [Para 11,12,14,21,33]
Vinay Devanna Nayak Vs. Ryot Sewa Sahakari Bank Ltd., 2008 ALL SCR 241 : (2008)2 SCC 305 [Para 11]
Jeetendra Anthony Fernandes Vs. Hathway Cable & Datacom Pvt. Ltd., 2008 ALL MR (Cri) 1262 [Para 11]
Sathyan Ayyappa Sathyan Vs. Yousu, 2008 ALL MR (Cri) JOURNAL 13 [Para 11]
Suman Sethi Vs. Ajay K. Churiwal, 2000 ALL MR (Cri) 645 (S.C.)=AIR 2000 SC 828 [Para 11]

JUDGMENT

JUDGMENT :- At first hearing, this Court had called Record & Proceedings and had orally put the parties to oral notice that the petition would be taken up for final disposal.

2. The case was adjourned twice to see if settlement is likely, but no settlement took place and hence petition is heard.

3. Rule. Rule is made returnable forthwith and is heard by consent.

4. In the complaint under Section 138 of the Negotiable Instruments Act, the Magistrate ordered issue of process after recording complainant's statement on oath, on perusal of documents, and upon recording satisfaction for doing so.

5. Order of issue of process was challenged before Sessions Court. Various grounds were raised. Sessions Court has heard and decided Revision Application and rejected it.

6. In this Court, order of issue of process and one passed dismissing Revision are challenged.

7. Learned Adv., Mr. Sadavarte states that by taking leave of the Court, he has deposited a sum of Rs.30,000-00 towards the amount of cheque. According to him, soon after the accused suo moto appeared, he had submitted an application before Trial Court seeking permission to deposit the amount, however, said application was rejected by the Trial Court. Therefore, the accused has availed of said concession by making a request to this Court for the same purpose. According to him, in the background of plea of the accused that he has not been served with the notice by the complainant about dishonour of cheque, upon deposit of amount of cheque, the accused would be absolved of a liability to face a criminal trial as the purpose of filing of the criminal complaint would cease to exist.

8. Mr. Sadavarte has also offered that in addition to amount of Rs.30,000-00 deposited in this Court, the applicant is ready and willing to pay an additional sum of Rs.25,000-00 towards compensation and interest in lump-sum, and that a Demand Draft for said sum is ready. This offer for compensation is not acceded by learned Advocate for the respondent, contending that said option can remain open subject to trial. This is a conditional acceptance and hence no orders on petitioner's oral prayer are necessary.

9. Perused record. Heard both sides.

10. Learned Advocate Mr. Sadavarte during submissions emphasized as a challenge to order of issue of process on the ground that the complainant has not demonstrated that the complaint is within limitation from the date of receipt of intimation of dishonour from the Bank and date of notice.

11. Learned Advocate Mr. Sadavarte has placed reliance on various reported judgments and points emerging therefrom. Most of those points are argued for the first time in this Court. The judgments relied upon and the discussion thereon are as follows :-

[1] C. C. Alavi Haji Vs. Palapetty Muhammed & Anr. [2007 ALL MR (Cri) 2044 (S.C.)],

[2] Vinay Devanna Nayak Vs. Ryot Sewa Sahakari Bank Ltd. [(2008)2 SCC 305 : (2008 ALL SCR 241)],

[3] Jeetendra Anthony Fernandes Vs. Hathway Cable & Datacom Pvt. Ltd. & anr. [2008 ALL MR (Cri) 1262],

[4] Sathyan Ayyappa Sathyan Vs. Yousu & anr. [2008 ALL MR (Cri) JOURNAL 13], and

[5] Suman Sethi Vs. Ajay K. Churiwal & another [AIR 2000 SC 828 : (2000 ALL MR (Cri) 645 (S.C.))].

12. Relying on C. C. Alavi Haji Vs. Palapetty Muhammed & anr. [2007 ALL MR (Cri) 2044 (S.C.)] (supra), it is urged that the cases where the drawer pleads that the notice of dishonour was not served on him, he would be absolved of criminal liability, would he offer to pay the amount through the cheque, subject-matter, within fifteen days from the receipt of summons accompanied by a copy of complaint, and in that case, the complaint be rejected.

13. Remaining four judgments mentioned in para No.11 are relied to urge that it would be permissible and desirable to grant compounding of the case in relation to a dishonoured cheque, if a reasonable and fair compensation is paid. This reliance is in support of submission orally advanced by learned Advocate Mr. Sadavarte referred to in para nos.7 and 8 foregoing.

14. Learned Advocate Mr. Bajaj has opposed the application, urging various grounds, namely :-

[a] The accused is a habitual economic offender.

[b] The notice of dishonour was sent and its tender is evident from the envelope containing the notice.

[c] The envelope shows that there are three endorsements of visit and intimation by postman.

[d] Address on the envelope, address in the complaint and address of the accused in the present application are the same.

[e] It is not true that the accused has appeared suo moto.

[f] The summons was served on the accused, as someone had accepted the same on his behalf on the same address.

[g] Accused has not denied service of summons of criminal case which is revealing from Exh.6.

[h] Since the accused avoided service, he was served with a bailable warrant on 12th February, 2007, and thereafter the case was on regular board.

[i] The accused, however, has not appeared and only when effort was made to arrest him after issue of non-bailable warrant in view of failure of the accused to appear in spite of service of bailable warrant in spite of furnishing a personal bond and a solvent surety before the police to appear at the time of service of bailable warrant.

[j] Application seeking permission to deposit made in Trial Court does not contain denial about receipt of notice of dishonour of cheque and about lack of service of summons and copy of complaint when bailable warrant was served/executed.

[k] The effort to pay amount and compensation has come up at the fag end only when non-bailable warrant was being executed.

[l] The offer to pay is, thus, not a sincere and honest offer, but an attempt to bargain to get relief from Criminal Law without any foundation.

[m] The tender of money is not in compliance within the time frame stipulated in the Judgment of Hon'ble Supreme Court in C. C. Alvi Haji's case [2007 ALL MR (Cri) 2044 (S.C.)] [supra].

[n] Whether the statement of the accused that he has fulfilled the conditions is a disputed fact which he has to prove by evidence in the Trial Court.

15. Mr. Bajaj, therefore, urges that the accused has to face the law and meet the consequences, as obligation of the accused to pay is, in no manner, absolved, nor is he relieved of criminal liability.

16. This Court had called for the records and has perused the same.

17. It is seen that the complaint was accompanied by documents, such as cheque, Memo of Dishonour, copy of notice of dishonour, envelope containing the notice which was sent, and affirmed statement on complaint after its tender to the Court. Order of issue of process is eloquent enough and lacuna discloses application of mind.

18. The grounds of challenge in the Revision Application pressed before Sessions Court were all focused on settled principles of law challenging the issue of process.

19. As mentioned earlier, the fact of issue of process is challenged, raising the ground stated in para no.10 above.

20. On the very face of it, the point of limitation is extremely weak to be adjudicated without a trial, since:

[a] The Dishonour Memo received by the complainant from the Bank is on record.

[b] It is apparent from the Dishonour Memo that it was received on 10th August, 2006.

[c] This date of receipt is for the first time brought in dispute before this Court.

[d] Question as to the date of receipt of Dishonour Memo by complainant, is a matter of proof, and the conclusion and findings to be given by the Trial Court upon proof thereof.

21. Next limited question, that falls for consideration of this Court, therefore, is whether reliance upon C. C. Alavi Haji's case, is proper? A question is formulated to enable proper discussion on this point as follows:-

What are the conditions precedent for a litigant to avail of the benefit of reported judgment in case of C. C. Alavi Haji Vs. Palapetty Muhammed & anr. [2007 ALL MR (Cri) 2044 (S.C.)] ?

22. On perusal of Judgment of Hon'ble Supreme Court taking a view as noted in paragraph nos.11 and 20 above, it is seen that a litigant, who wants to take the benefit of this judgment, has to demonstrate certain facts, namely :-

[a] The accused has not received the notice informing dishonour of cheque.

[b] The exact date when the summons was served on him.

[c] That the accused has not received the copy of complaint along with summons.

[d] In case like present case, that the bailable warrant did not accompany the copy of complaint.

[f] Exact date when the copy of complaint was received by the accused.

[g] That the accused has proved that within fifteen days from receipt of summons accompanied by complaint or later when copy of complaint was delivered to him, the accused has tendered or deposited in Court the amount of cheque.

23. In the present case, this question as to proof of points arises, and it will have to be adjudicated in the process of trial, as there cannot be a piecemeal hearing in a summary trial.

24. Perusal of the Roznama shows that the case was on board on all dates fixed.

25. It has not been explained by the accused as to what precluded the accused from coming to the Court soon after service of bailable warrant and applying taking the case on board.

26. On the next due date, accused could have, rather ought to have, placed on record that the bailable warrant did not accompany copy of complaint and within fifteen days either from the date of service of warrant, he should have attempted to apply for copy of complaint and then within fifteen days from the date of receipt of copy of complaint, deposit or tender money.

27. It is not shown that any amongst these steps were taken, except filing a cryptic application on 4th June, 2006 for permission to deposit in the background of service on him of bailable warrant on 12th February, 2006.

28. In the present case, nothing is shown as to how accused is averring/arguing that the case was not on board, or what precluded the complainant from punctually appearing before the Trial Court in absence of securing and producing certified copies of cause lists.

29. Moreover, bailable warrant discloses that accused was cautioned to appear on a date stated in bailable warrant. It is not the case of accused that he has tried to appear. It is not shown that he has made efforts to take caseon board on said date. He has not stated as to what propelled him to appear on a particular date.

30. Service report reveals that accused was cautioned to appear before the Magistrate, Nagpur, on 15th February, 2006. Moreover, the fact is very well borne on record that as in spite of service of bailable warrant, the accused did not appear, the complainant was required to pray for issue of non-bailable warrant and dates of these applications by accused and date fixed for return of warrant, and application by accused dated 4th June, 2006 do correspond. All these facts belie the statements of accused that on 4th June, 2006, he has appeared suo moto.

31. This prima facie demonstrates the plea of the complainant to be worth reliance than that of the accused who will have to prove contrary, if be true, in the trial.

32. This disputed matter of fact was not raised before the Trial Court or Revisional Court in the manner which is now pursued before this Court, mostly because the Judgment of Hon'ble Supreme Court was not available on the date when accused appeared and made all these efforts. The fact remains that the question as to eligibility to avail of the benefit of judgment of Hon'ble Supreme Court are the matters to be decided.

33. Question as to whether, all factual matters, which need to be proved by an accused to take benefit of the concession emerging from Judgment of Hon'ble Supreme Court in case of C. C. Alavi Haji [2007 ALL MR (Cri) 2044 (S.C.)] [supra], are all matters of fact to be proved in course of trial, and not before this Court for the first time.

34. True it is that offer of deposit was given because it was made, however, a prayer for acquittal at once in view of compliance of judgment of Hon'ble Supreme Court was not made before the Trial Court. This exercise cannot be done for the first time by High Court, particularly when the proof of facts is required to be done in view of the serious dispute on various facts of the matter.

35. The effect of later four judgments relied upon by the petitioner, referred to in para 11 is contingent upon a finding on the point of compliance by accused of the conditions referred to in the foregoing paras.

36. Moreover, the record reveals that evidence on affidavit of the complainant is already on record. What remains is his cross-examination and couple of witnesses if there be, and the evidence of the accused if he desires to bring.

37. It is open for the accused to raise all these pleas in the defence. It would be of no practical purpose to seek a finding from this Court, which the applicant is doing.

38. In the result, considering that the applicant is converting this application mainly intended to challenge the issue of process into a petition analogous to a claim for discharge in view of subsequent developments, which, however, need proof of facts, for which no effort was done in the Trial Court.

39. The petition, therefore, does not deserve any interference. Rule is discharged.

Petition dismissed.