Chevron Garments (P) Ltd. and S. Ramanathan vs Sri Malini Spinning Mills Ltd. (Formerly P.A. Mills Ltd.)

M. Karpagavinayagam, J.—The petitioners (A1 and A2) having failed in an attempt to get the proceedings dropped and to get the order of

discharge from the proceedings u/s 138 of the Negotiable Instruments Act have approached this Court by filing these revisions.

The respondent filed two complaints in respect of the dishonour of the different cheques on 26.7.1999 against the petitioners. On receipt of the

process, the petitioners appeared before the Court. P.Ws.1 to 3 were examined in chief and cross. At that stage, the petitioners filed two separate

applications in both the complaints requesting to drop the proceedings and discharge the accused on the ground that the complaint was taken on

file beyond the period of limitation.

The trial Court dismissed the said applications holding that both the matters are being dragged on for several hearings from the year 1999 and

the question with reference to the main issue could be decided, while the main judgment is pronounced and not earlier, that too, at the fag end of

trial.

Mr.K.V.Sridharan, the counsel for the petitioners cited the judgment of the Supreme Court reported in 2001 S.C.C.(Crl.) 18 (ABDUL

WAHAB ANSARI v. STATE OF BIHAR) would strenuously contend that maintainability of the complaint can be questioned at any stage of the

proceedings and therefore, the petitioners would be entitled to request for discharge even at the fag end of trial on the ground that the complaint

was not filed within the period of limitation.

I heard the counsel for the respondent.

At the outset, it shall be mentioned that this is a case where the process of Court have been fully abused by the petitioners before the trial Court

as well as this Court by filing the applications for dropping of the proceedings and for discharge, even though the trial is at the fag end.

This Court would hold in P. Ganapathy Vs. A. Marimuthu Pillay, and BALAKRISHNAN v. TULASIDAS 1999 (1) L.W. Crl. 219 that the

request for discharge or for dropping the proceedings either u/s 245 Cr.P.C. or u/s 138 Cr.P.C. would not be maintainable after the examination

of the witnesses commenced.

Section 204 Cr.P.C. would relate to the powers of the Court to issue process to the accused. At that stage, the accused would appear before

the Court and request for recalling of the process as the same was invalid.

In this case, the stage of Section 204 Cr.P.C. was already over. The accused were questioned u/s 251 Cr.P.C. and examination of the

witnesses had already commenced and the evidence was taken u/s 254 Cr.P.C. and the case is at the fag end of trial. Therefore, dropping of the

proceedings, at this stage, would not arise at all.

Similarly, requesting for discharge is not at all sustainable in summons cases as the provision of discharge is only applicable to the warrant

cases. Therefore, the prayers for discharge and dropping of the proceedings, in my view, are not sustainable.

Even on merits, I am of the considered opinion that the contention of the petitioners in regard to the question of period of limitation has to be

rejected in limine.

According to the petitioners/accused, the statutory notice was sent to the accused on 29.5.1999 and the same was received on 7.6.1999 and

15 days expired on 22.6.1999 and as such, the complaints ought to have been filed within one month from that date, but the complaints were

presented only on 26.6.1999 beyond the period of limitation.

This contention is factually incorrect. According to the complainant, the cheques were presented on 17.5.1999 and the same were returned

and the intimation was given to the complainant on 24.5.1999. Within 15 days, he sent a statutory notice to the accused on 29.5.1999 and the

same was returned to the complainant on 9.6.1999 as ""unclaimed"".

On learning that the second accused is available at Coimbatore, he again sent the copy of the notice dated 29.5.1999 along with the covering

letter and the same was received by him on 24.6.1999 and since the cheque amount was not paid within 15 days from 24.6.1999, after lapse of

15 days, the complaints were filed on 25.7.1999 within one month after expiry of 15 days. This has been clearly stated in the deposition also.

It is now contended that the postal cover as ""unclaimed"" dated 7.6.1999 shall be construed to mean that notice was served and if that date is

calculated as the date of service, the complaints are not within the time.

There is no merit in this contention. When the very same question on similar facts has been dealt with by this Court, this Court would hold in

PONNUSAMY, C. v. R. KRISHNASAMY 2001 (4) C.T.C.617 that the return of the postal cover as ""unclaimed"" would not amount to

constructive service when it is not mentioned by the complainant in his complaint that the accused was evading service of notice.

In this case, it is not the complainant''s case that on receipt of returned postal cover on 9.6.1999, he felt that the accused was evading service

and therefore, the postal cover was returned. On the other hand, on coming to know that he was available at Coimbatore, he sent the same notice

dated 29.5.1999 along with the covering letter dated 17.6.1999 in order to see that the notice dated 29.5.1999 is served on the accused. In other

words, the complainant would not contend that the accused was evading service and his only concern was to collect the cheque amount from the

accused after serving the demand notice dated 29.4.1999.

In view of the above fact situation, it has to be held that the notice was sent on 29.5.1999 within 15 days from the date of intimation of

dishonour and the same was sent again with covering letter dated 17.6.1999 which was received by the accused on 24.6.1999. Therefore, it has

to be construed that the notice which was sent on 29.5.1999 was served on the accused on 24.6.1999.

Hence, the date of sending of notice has to be construed as 29.5.1999 within the stipulated time and the service of notice dated 29.5.1999

which was served on the accused on 24.6.1999 has to be taken as constructive and actual service. After constructive service on 24.6.1999, he

waited for 15 days and thereafter, within a month, he filed the complaints on 25.7.1999. Therefore, the complaints were filed within the period of

limitation. Consequently, it has to be held that the revisions have to be dismissed on both the grounds that the petitions are not maintainable in law

and unsustainable on merits.

It is seen from the impugned order that the petitioners have been dragging on the matter for a number of hearings and the petitioners obtained

adjournment after adjournment numbering more than 25 and the matter was adjourned for one year on several hearings only at the instance of the

accused. In these circumstances, it has to be held that the applications for dropping of the proceedings have been filed not with any bona fide

intention but only to drag on the proceedings further.

Under those circumstances, it would be appropriate to direct the petitioners to pay costs of Rs.5,000/- (Five thousand only) to the respondent

within one month from today. The trial Court is directed to continue the trial and dispose of the matter within two months from the date of receipt

of this order.

With the above observations, the revisions are dismissed. Consequently, connected Crl.M.Ps. are also dismissed.