K. Mahadevan vs Y. Venkatesh and Another

The Criminal Revision Case is filed by the petitioner-de facto-complainant challenging the judgment of the II Metropolitan Magistrate, Visakhapatnam, dt. 3rd May 1991, passed in C.C. No. 353 of 1990, on his file, acquitting respondent No. 1 herein (accused) of the offence u/s 138 of the Negotiable Instruments Act.

The gravamen of the charge against the accused is that the accused gave two cheques dt. 25-6-1989 and 20-7-1989 for Rs. 3,600/- and Rs. 9,500/- respectively, drawn on Vysya Bank Limited Visakhapatnam, in favour of the petitioner herein in connection with the credit transactions between them, that the petitioner presented both the cheques in Karnataka Bank on 19-7-1989 and 20-7-1989 respectively and the Manager of Karnataka Bank, in turn, sent the cheques to Vysya Bank Limited for collection, that the Vysya Bank Limited returned those two cheques to the Karnataka Bank on 20-7-1989 and 21-7-1989 respectively with an endorsement "Exceeds arrangements as there is no cash balance in the account of the accused", that the petitioner thereupon gave a statutory notice to the accused, who, having received it on 4-8-1989, did not pay the amounts covered by the two cheques even after lapse of 15 days and that therefore he filed a private complaint in the lower Court for an offence u/s 138 of the Negotiable Instruments Act, which was forwarded by the Magistrate to the police for investigation u/s 156(3) of the Code of Criminal Procedure. After completing investigation into the case, the police filed the charge sheet. Thereafter, the learned Magistrate took the case of file, under S. 138 of the Negotiable Instruments Act, examined the accused u/s 251, Cr.P.C. and thereafter examined P.Ws. 1 to 4 and marked Exs.P-1 to P-11. Ultimately, after trial, the learned Magistrate acquitted the accused of the offence u/s 138 of the Negotiable Instruments Act. Aggrieved thereby, the present revision is filed by the de facto complainant (P.W. 1).

The main contention advanced by the learned counsel for the petitioner, Mr. T. Bali Reddi, is that u/s 142 of the Negotiable Instruments Act cognizance should have been taken on the private complaint filed by the petitioner itself but the private complaint filed by the petitioner should not have been forwarded to the police u/s 156(3) of the Code of Criminal Procedure for investigation and that the procedure adopted by the trial Court is illegal.

u/s 142 of the Negotiable Instruments Act, 1881, no Court shall take cognizance of any offence punishable u/s 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. That means, Section 142 contemplates of filing of a private complaint only. This section does not give any indication to refer such a private complaint filed by the payee or the holder in due course to the police for investigation u/s 156(3) of the Code of Criminal Procedure by the Magistrate before whom such a complaint is filed. In the case on hand the complaint filed by the petitioner was forwarded by the Magistrate to the police for investigation u/s 156(3) of the Code of Criminal Procedure and after conducting investigation the police filed the charge sheet and cognizance was taken by the Magistrate on the charge sheet filed by the police. It is a glaring defect in the procedure adopted by the Magistrate. In identical circumstances, in Y. Venkateshwara Rao v. Mahee Handlooms (P) Ltd. (1) 1992 (3) ALT 73, this Court held as follows :

"As evidenced by Section 142 of the Negotiable Instruments Act no Court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in the course of the cheque. In the present case, the case was taken cognizance on a police complaint and consequently, as rightly submitted by the learned counsel for petitioner, the complaint is not taken on file property. In view of the provisions of Section 142(a) of the Negotiable Instruments Act, the proceedings in C.C. No. 184 of 1991 on the file of VI Metropolitan Magistrate are quashed on and from referring the case by the learned Magistrate u/s 156(3) of the Code and thereafter."

The complaint filed by the petitioner having been forwarded by the Magistrate to the police for investigation u/s 156(3) and the police having filed the charge sheet after investigation and the Magistrate taking cognizance on the police charge sheet, it is a glaring defect in the procedure adopted by the learned Magistrate. When there is some glaring defect in the procedure or there is a manifest error on a point of law, the Supreme Court held in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, as follows at page 11 of Cri.L.J. :

"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have though fit to appeal but this jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 (of the Code of the Criminal Procedure, 1898) forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly covert finding of acquittal into a finding of conviction."

It was further held by the Supreme Court in the said decision as follows :

"Two contingencies arise in such a case as to the nature of the order to be passed. In the first place, there may be an acquittal by the trial Court. In such a case if the High Court is justified, on principles enunciated above to interfere with the order of acquittal in revision, the only cadre open to it is to set aside the acquittal and send the case back to the trial Court for retrial ............"

Following the above judgment of the Supreme Court, I hereby set aside the impugned order of acquittal recorded by the learned Magistrate and remit the matter back to the trial Court for retrial afresh with a direction to treat the complaint filed by the petitioner herein as a private complaint and proceed further with the case in accordance with the provisions of Chapter XV of the Code of Criminal Procedure and dispose of the same, on merits, afresh in accordance with law.

The Criminal revision Case is, therefore, allowed and remand is accordingly ordered.

Revision allowed.