IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15/02/2005
CORAM
THE HON'BLE MR.JUSTICE V.KANAGARAJ
CRL RC.No.1776 OF 2004
AND CRL RC NOS. 1777 TO 1780 OF 2004
CRL.M.P.Nos.10641, 10645, 10647, 10649 AND 10650 OF 2004.
1. M/s.Blue Blends (India) Limited,
JBF House, Old Post Office Lane,
Kalbadevi Road,
Mumbai-400 002.
2. Anand Arya ... Petitioners in all
the above Crl.R.Cs.
-Vs-
Thirumagal Mills Limited,
Katpadi Road,
Gudiyatham,
rep.by its Accounts Manager
S.Ramamurthy ... Respondent in all
the above Crl.R.Cs.
Criminal Revision Cases filed under Section 397 r/w.401 Cr.P.C.
praying for the reliefs as stated therein.
For petitioners : Mr.S.Sridhar
For respondent : Mr.Ashok Kumar,
Senior Counsel for
M/s.A.Sasidharan &
C.D.Johnson
:COMMON ORDER
All the above Criminal Revision Cases are filed by one and the same
parties as against the same respondent against the orders all dated 6.7.2004
respectively made in Crl.M.P.No.1535 of 2004 in C.C.No.192 of 1998,
Crl.M.P.No.1534 of 2004 in C.C.No.187 of 1998, Crl.M.P.No.15 31 of 2004 in
C.C.No.188 of 1998, Crl.M.P.No.1527 of 2004 in C.C.No.1 91 of 1998 and
Crl.M.P.No.1530 of 2004 in C.C.No.190 of 1998 by the Court of Judicial
Magistrate, Gudiyatham.
2. On a perusal of the materials placed on record and upon hearing
the learned counsel for the petitioners and the learned senior counsel for the
respondent, it comes to be known that the respondent herein has lodged all the
above mentioned criminal cases as against the petitioners herein for the
offence under Section 138 of the Negotiable Instruments Act. During pendency
of the said cases, the revision petitioners herein who are accused in all the
above cases have filed the above mentioned criminal miscellaneous petitions
before the Court below seeking to re-call the process issued in the cases and
discharge them from the cases on ground that the respondent/complainant has
received all the amounts due from the revision petitioners and also
acknowledged the same by issuing receipts and that the accused and the
complainant entered into a compromise.
3. This claim of the accused was rebutted by the complainant on
ground that the points raised by the accused are all the matters to be decided
during the course of trial; that the payments received from the accused were
credited to the accounts of the accused maintained by the complainant and no
receipt has been issued referring to the cases pending before the Court; that
the accused made the payment knowing full well that the same were made against
the outstanding payments payable to the complainant on account of the yarn
supplied by the complainant which include bank changes, belated interest
payments as per the contract of supply of goods; that even all the receipts
issued by the complainant specifically states that the payments were received
towards account balance and not towards the cheque amounts involved in the
cases, the petitions filed by the accused are without merit and are liable to
be dismissed.
4. Based on the above pleadings, the Court below would conduct
separate enquiries into the matters and would dismiss all the petitions on
ground that the points raised by the accused are all points to be determined
at the time of trial of the cases. It is only aggrieved against the said
findings of the Court below, the petitioners/accused have come forward to file
the above criminal revision cases on certain grounds as brought forth in the
grounds of revision petitions.
5. During arguments, the learned counsel for the petitioners would
submit that the entire amount in dispute has been paid by the accused to the
complainant and the respondent/complainant can, no more, enforce the
liability; that the court below has failed to note that if the complainant is
desirous of prosecuting the complaints further, he ought not to have received
the payments to the tune of Rs.81,09,278/= over and above the amount of Rs.75
lakhs in respect of alleged dishonoured cheques in all the complaints and the
respondent having received the huge amount from the petitioners, in order to
harass and humiliate the petitioners, is not withdrawing the complaints; that
the Court below has failed to note that the Amendment Act 2002 to Chapter XVII
Negotiable Instruments Act 1881 through Sec.147 provides that ‘
notwithstanding anything contained in the Code of Criminal Procedure 1973,
every offence punishable under this Act shall be compoundable’ and the said
amendment applied to the present complaint filed against the petitioner also.
On such grounds, the petitioners would pray for the reliefs as stated supra.
6. On the contrary, on the part of the learned senior counsel
appearing on behalf of the respondent/complainant, besides reiterating the
contents of the counter filed before the Court below, he would submit that
since the payment of the amounts as alleged by the petitioners/accused is
itself in dispute, the Court below has rightly concluded that the trial is the
answer for all the issues to be settled after adducing evidence on both sides.
At this stage, the learned senior counsel for the respondent would cite a
judgment of the Honourable Apex Court delivered in ADALAT PRASAD vs. ROOPLAL
JINDAL AND OTHERS reported in 2004 (4) CTC 608 wherein the Honourable Apex
Court has held:
“… after taking cognizance of the complaint and examining the complainant
and the witnesses if he (the Magistrate) is satisfied that there is sufficient
ground to proceed with the complaint, he can issue process by way of summons
under Section 204 of the Code. Therefore, what is necessary or a condition
precedent for issuing process under Section 204 is the satisfaction of the
Magistrate either by examination of the complainant and the witnesses or by
the inquiry contemplated under Section 202 that there is sufficient ground for
proceeding with the complaint hence issue the process under Section 204 of the
Code. In none of these stages the Code has provided for hearing the summoned
accused, for obvious reasons because this is only a preliminary stage and the
stage of hearing of the accused would only arise at a subsequent stage
provided for in the latter provision in the Code. It is true as held by this
Court in Mathew’s case (1992 (1) SCC 217) before issuance of summons, the
Magistrate should be satisfied that there is sufficient ground for proceeding
with the complaint but that satisfaction is to be arrived at by the inquiry
conducted by him as contemplated under Sections 200 and 202, and the only
stage of dismissal of the complaint arises under Section 203 of the Code at
which stage the accused has no role to play therefore the question of the
accused on receipt of summons approaching the Court and making an application
for dismissal of the complaint under Section 203 of the code for a
reconsideration of the material available on record is impermissible because
by then Section 203 is already over and the Magistrate has proceeded further
to Section 204 stage.”
7. The learned senior counsel for the respondent would also cite yet
another judgment of the Honourable Apex Court delivered in SUBRAMANIUM
SETHURAMAN vs. STATE OF MAHARASHTRA AND ANOTHER reported in 2004 (4) CTC 613
wherein the Honourable Apex Court has held :
“Recalling process after recording of plea of accused is not permitted in
summons case and remedy if any can be by way of petition under Section 482 of
the Code of Criminal Procedure”
On such arguments, the learned senior counsel for the respondent would pray to
dismiss all the above criminal revision cases.
8. A perusal of the orders passed by the Court below would show that
the Court below, having conducted enquiries into all the matters and tracing
all the facts and circumstances of the cases and having framed its own point
for consideration in all the matters to the effect that ‘whether the petition
for review and recall of process issued against the accused could be allowed?’
and relying on various propositions of law delivered by the upper forums of
law on the subject, would hold that a prima facie case has been made out on
the part of the complainant and that when the offence is complete, the
subsequent negotiation that the accused would settle the claim, would, in no
way, frustrate the operation of law and the onus is on the accused to
establish that the said amounts were given towards the discharge of liability
in respect of the cheque amount, which has not been done by the accused and
that even though the payment has been made, the subsequent payments would not
absolve the accused of the liability of criminal offence. The Court below
would further hold that the points raised by the accused cannot be decided at
this stage and the entire matter could be considered only during the course of
trial as the entire facts of the case would be revealed only through a full
trial. The Court below would further observe that the accused have not
produced any reliable document in support of their case and would ultimately
dismiss all the petitions filed by the accused.
9. Either in the conclusions arrived at by the court below or the
manner in which the same have been arrived at, this Court of revision does not
find any illegality or perversity in approach or patent error of law and since
the points raised on the part of the accused are the points to be decided
after a thorough and full trial, in which event both the parties could exhaust
their remedies, the Court below has correctly arrived at the conclusion to
dismiss all the above petitions. The judgments cited on the part of the
learned senior counsel for the respondent would squarely apply to the facts of
the cases in hand. Therefore, the interference of this Court sought to be
made into the well considered and merited orders passed by the Court below is
neither necessary nor warranted and hence all the above criminal revision
cases are liable only to be dismissed and hence the following order:
In result,
(i) all the above criminal revision cases do not merit acceptance and are
liable only to be dismissed and are dismissed accordingly.
(ii) The orders all dated 6.7.2004 respectively made in Crl.M.P.No.15 35 of
2004 in C.C.No.192 of 1998, Crl.M.P.No.1534 of 2004 in C.C.No.187 of 1998,
Crl.M.P.No.1531 of 2004 in C.C.No.188 of 1998, Crl.M.P. No.1527 of 2004 in
C.C.No.191 of 1998 and Crl.M.P.No.1530 of 2004 in C.C.No.190 of 1998 by the
Court of Judicial Magistrate, Gudiyatham are confirmed.
Consequently, Crl.M.P.Nos.10641, 10645, 10647, 10649 and 10650 of 20
04 are also dismissed.
Index: Yes
Internet: Yes
Rao
To
The Judicial Magistrate,
Gudiyatham.