Haresh Kumar N. Shah vs A.Y. Prabhakar

A.K. Rajan, J.—This appeal against the acquittal against the dismissal of the private complaint filed u/s 138 of Negotiable Instruments Act.

Learned counsel appearing for the complainant submitted that only point for consideration is that whether the complaint has been filed in time or

not.

The case of the complainant is that he paid a sum of Rs.5,00,000/-on various dates as an advance in pursuance of an agreement entered into

between them for the purchase of a property, on condition that failing to execute the sale deed, the accused should return the amount. On account

of various circumstances, the said property could not be handed over to the complainant by the accused. Hence, the complainant called upon the

accused to repay the advance. The accused returned a sum of Rs.4,00,000/- to the complainant and for the balance of Rs.1,00,000/-, he gave a

cheque dated 10.04.1991 drawn on Indian Bank, Egmore Branch. When the said cheque was presented for payment, the same was dishonoured

with an endorsement ""insufficient funds"". Hence, the complainant issued a notice dated 09.05.1991, calling upon the accused to pay the said sum.

In spite of the notice the accused kept quiet. The accused has committed an offence punishable u/s 138 of the Negotiable Instruments Act.

Therefore, the complainant filed a private complaint before the learned trial Magistrate who in turn took up the matter on his file in C.C.No. 6392

of 1991 and the trial Magistrate convicted the accused. Against the said conviction, the accused filed an appeal before the IV Additional Sessions

Judge, Chennai in C.A.No. 84 of 1994 who in turn set aside the order of the trial Magistrate. Aggrieved by the judgment of the lower appellate

Judge, the complainant has come forward with the above appeal.

Learned counsel appearing for the complainant submitted that the only point that arises for consideration is whether the complaint has been filed

in time or not.

According to the complainant, the complaint was filed on 26.6.1991 itself which was within the period of limitation. But the sworn statements

were recorded only on 09.07.1991 and it was taken on file on 11.07.1991. The lower appellate Court has taken the date on which the complaint

was taken on file for the purpose of determining the period of limitation.

As per the judgment of the Division Bench of this Court reported in A. Vinayagam -vs- Dr. Subbash Chandran (2001) 1 L.W.Cri. 460 the date

on which the complaint was initially present is the date of complaint for the purpose of limitation under the Act. Therefore, counsel submitted that

the complaint was filed in time.

Learned counsel appearing for the respondents pointed out that the lower appellate Court has held clearly that there is no record to show that

the complaint was filed in time.

In order to verify the claim of the complainant, whether the complaint was filed on the date claimed by the appellant/complainant, it called for the

relevant registers, like Stamp Account Register etc., the stamp Account register was not available and hence, the Court found that the complaint

was not filed on the date as it was claimed. This conclusion of the lower appellate Court cannot be said to be illegal. Hence, it is accepted and the

appeal is liable to be dismissed.

Normally, when a complaint is presented either in the open Court or to the office, the first thing the office is to do is affix the seal of the Court on

the complaint as well as the Court fee affixed on the complaint.

But strangely, no seal of the Court is found on the complaint nor the learned Magistrate has initialed it. When the complaint was presented in the

open Court to the Magistrate directly, in the absence of such initial, it cannot be said that the complaint was presented within the period of

limitation.

Further, complaint has to be filed along with the vakalat. But there is no vakalat found in the records. Therefore, it appears that no vakalat was

filed along with the complaint. All these things taken together would show that the complaint was not filed in time.

Therefore, the order of the lower appellate cannot be set aside and hence, the appeal is dismissed.