Mubarak Nisha vs R.M. Subramanian

Karpagavinayagam, J.—This is a revision preferred by the petitioner, Mubarak Nisha, a pardanishan lady, accused in C.C. No. 219 of

1994 on the file of the Chief Judicial Magistrate, Pudukkottai, which is directed against the order in Crl. M.P. No. 883 of 1995 dismissing the

petition filed by her for discharging her and dropping the proceedings u/s 227, read with section 239 of the Code of Criminal Procedure, 1973.

The facts in brief are as follows :

The complainant, the respondent, R.M. Subramanian, filed a complaint against the petitioner u/s 138 of the Negotiable Instruments Act, 1881,

stating that on January 14, 1994, the accused/petitioner borrowed a sum of Rs. 3 lakhs from the complainant/respondent and issued three post

dated cheques. In respect of one such cheque, the complainant already filed a complaint before the lower court in C.C. No. 62 of 1994. In

respect of other two cheques, the complaint in question was filed and the same was taken on file in C.C. No. 219 of 1994 on the file of the Chief

Judicial Magistrate, Pudukkottai. After a receipt of summons in the above case, the petitioner/accused filed a petition for discharge u/s 227 read

with section 239 of the Code of Criminal Procedure, 1973, raising several questions of law in Crl. M.P. No. 883 of 1995. However, the learned

Chief Judicial Magistrate, Pudukkottai, rejected the contentions and held that the complaint was maintainable, thereby the petition was dismissed.

Hence, the present revision.

At the outset, I must mention that the petition filed by the petitioner before the learned Chief Judicial Magistrate in Crl. M.P. No. 883 of 1995,

u/s 227 read with section 239 of the Code of Criminal Procedure, 1973, is misconceived. Section 227 of the Code of Criminal Procedure, 1973,

relates to the powers of the sessions court to frame charges. Section 239 relates to the powers of the Magistrate to discharge the accused in a

warrant case. But, this case having been filed u/s 138 of the Negotiable Instruments Act, relates to summons procedure contemplated under the

Code of Criminal procedure, 1973. As such, the petition filed by the petitioner before the lower court under the relevant section was not

competent and the same was not maintainable. However, as per the decision in K.M. Mathew Vs. State of Kerala and another, , the Supreme

Court held that even in summons cases, the petition could be maintained u/s 204 of the Criminal Procedure Code, 1973, to drop the proceedings.

So, I have no hesitation to hold that though the petition was filed by quoting wrong provisions, viz., section 227 read with section 239 of the

Criminal Procedure Code, 1973, it could be construed as having been filed u/s 204 of the Criminal Procedure Code, 1973, to drop the

proceedings and discharge the accused.

In the revision, though there are several contentions raised, I feel that the revision has to be allowed on a simple and substantial ground, which is

given as follows. In the complaint, it has been mentioned by the complainant that the husband of the accused requested the complainant not to

present the other two cheques (the cheques in question) to the bank for realisation. But, however, the complainant presented the two cheques

dated March 14, 1994, and April 14, 1994, issued by the accused to him for realisation of the amounts with the banker, Punjab National Bank,

Pudukkottai branch. On the basis of this, the petitioner contended in her petition in Crl. M.P. No. 883 of 1995, that since the two cheques in

question, which were presented to the bank for collection, despite the request made by the husband of the accused not to present them, the

presentation of the cheques without the knowledge of the petitioner/accused could not be construed to be an offence u/s 138 of the Negotiable

Instruments Act. Besides this point, there were other grounds raised such as limitation, etc. Unfortunately, the lower court, while rejecting the

contention raised by the petitioner and dismissing the petition, referred only to the other points, but failed to refer to this important point.

It was brought to my notice by Mr. Ravichandran, learned counsel for the petitioner, the decision reported in M/s. Electronics Trade and

Technology Development Corpn. Ltd., Secunderabad Vs. M/s. Indian Technologists and Engineers (Electronics) Pvt. Ltd. and another, in which it

was held as follows (at page 34) :

... after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to

present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and it is returned on

instructions, section 138 does not get attracted.

So, on the basis of this observation, learned counsel for the petitioner contended that even on the admitted facts, the allegations contained in the

complaint would not construe an offence u/s 138 of the Negotiable Instruments Act and so the proceedings have got to be dropped.

Mr. Jawahar Sundaram, learned counsel appearing for the respondent, though opposed this petition in respect of the other grounds raised in this

revision, fairly admitted that since there is an admission in the complaint itself regarding the request of the husband of the petitioner/accused asking

the complainant not to present the cheques and in spite of the request, the complainant presented the cheques and got them dishonoured, would

show that he has no case. So, on the basis of the direct citation submitted by learned counsel for the petitioner, I hold that the complaint which has

been filed by the complainant/respondent, which was taken on file in C.C. No. 219 of 1994 on the file of the Chief Judicial Magistrate,

Pudukkottai, is not maintainable and as such the order of the lower court is liable to be set aside and the same is set aside and the proceedings

initiated against the accused/petitioner on the complaint of R.M. Subramanian, the respondent are dropped. The revision is allowed. Since the main

revision case has been allowed, no further orders are necessary in Crl. M.P. No. 3430 of 1995.