Rahminder Kaur vs S.F. Industries

C.S. Karnan, J.—The revision petitioner/second accused has preferred the present revision in Crl. R.C. No. 933 of 2006 against the order

made in Crl. MP. No. 974 of 2005 in C.C. No. 13029 of 2005 on the file of XIII Metropolitan Magistrate, Court, Egmore. The short facts of the

case are as follows:

The accused had represented that they were the owners of the land situated at Ambattur and further represented that they had got the said

property as their share from the ancestral property. They agreed to sell the same to the complainant and received a sum of Rs. 5,30,000/- as

advance from the complainant. Subsequently, the accused for reasons best known to them had refused to sell the land to the complainant and

further they had also sold a part of the said land to some other persons. When the complainant approached the accused and enquired about the

sale of the said land to third persons, the accused failed to give proper reply and in turn blamed the complainant for not paying balance sale

consideration in time. Hence, the complainant demanded the accused to give back the advance amount and the accused had initially refused to

repay the same. Hence, the complainant had to initiate criminal action against the accused for cheating. Subsequently, the accused had represented

that they have a joint account in a bank and that it would suffice it either of them signed the cheques. Thereafter, they issued six cheques to the tune

of Rs. 5,30,000/-. Subsequently, the accused sent a lawyer''s notice stating that they were liable to pay only Rs. 3,30,000/- and refused to honour

the cheques and demanded return of the cheques. The complainant was forced to initiate a civil suit in O.S. No. 364 of 2004 before the learned

District Munsiff cum Judicial Magistrate, Ambattur. The accused finally, with the help of mediators agreed to settle and thereafter had cleared 2 out

of the 6 cheques viz., cheque No. 946982 and cheque No. 946984 drawn for a total sum of Rs. 1,30,000/-.

As per the instructions of the accused, when the complainant presented one of the above said cheques viz., cheque No. 946979, dated

20.9.2004, drawn on ICICI Bank, Anna Nagar Branch, Chennai for a sum of Rs. 1,00,000/- with their bankers viz., Karnataka Bank, Triplicane

Branch, the said cheque was returned unpaid with an endorsement of ""insufficient funds"" on 21.9.2004. The complainant sent a legal notice to the

accused on 9.10.2004, which was served on the first accused on 13.10.2004 and on the second accused on 12.10.2004. As the accused had

neither replied nor effected cheque payment even after receipt of notice, the complainant had filed a complaint against the accused for an offence

u/s 138 of Negotiable Instruments Act before the XIII Metropolitan Magistrate, Court, Egmore, Chennai.

Subsequently, the case was taken on file of XIII Metropolitan Magistrate, Court, Egmore as C.C. No. 13029 of 2005. During the case

proceedings, the second accused i.e., the wife of first accused had filed a petition in Crl. M.P. No. 974 of 2005 in C.C. No. 13029 of 2005 u/s

239 of Cr. P.C. to discharge her from the proceedings in C.C. No. 13029 of 2005. It was submitted that the petitioner was a house wife, and had

never represented that she was the owner of the land situated at Ambatur and she had never said that she has got the said property as her share

from ancestral property. It was submitted that she never came forward to settle the issue and to repay the amount and had never requested the

complainant not to proceed with any criminal action since she is not aware of the allegations. It was submitted that if at all any cheque has been

issued, it should have been issued by her husband, i.e., the first accused and has stated that the said account is not a joint account and that it is

either or survivor account"" and she has not signed the said cheque and as such she is not liable to be prosecuted for a criminal offence. It was also

submitted that the petitioner is not aware of any civil suit and that she is not a party to any suit before any Court. It was submitted that she had sent

a legal notice to the complainant on 28.9.2004 informing him that she is in no way connected to the alleged transaction. It was submitted that she is

not liable to pay any amount to the petitioner as there was no legal debt. Hence, it was prayed to discharge her from the proceedings in C.C. No.

13029 of 2005.

The respondent/complainant in his counter had submitted that at the time of issuance of the cheques in question, the petitioner had represented

that the bank account in which the cheques were drawn is a joint account which can be operated by both herself and her husband and only based

on her inducement, the respondent had received the cheques from the accused. It was submitted that the petitioner along with her husband had

attempted to deceive him of his hard earned money and that he was ready to establish the role played by this petitioner at the time of trial. It was

also submitted that the present petition filed by the petitioner u/s 239 of Cr. P.C. is not maintainable as the complaint u/s 138 of Negotiable

Instruments Act, being a summons case is covered by the Chapter XX of the Code of Criminal Procedure and does not contemplate a stage of

discharge like Section 239 Cr. P.C., which provides for discharge only in a warrant case.

When the case was taken for hearing on 28.10.2005, the learned Magistrate, on perusal of records and on hearing the arguments of either sides

opined that the present case filed u/s 138 of Negotiable Instruments Act is a summons case and that once a case has been taken on file, the Court

does not have the power to recall the process issued. The learned Magistrate also observed that either by examination of complainant and witness

u/s 200 or by inquiry contemplated u/s 202, if it is seen that there is sufficient ground for proceeding with the complaint, there is no requirement of

hearing of summoned accused at any of the stages. The learned Magistrate observed that no witnesses had been examined and that only after

examination of witnesses, the case can be decided on merits. The learned Magistrate also observed that in the cheque given to the complainant, the

name of petitioner/accused had been printed in the cheque. Hence, the learned Magistrate observed that the issues regarding whether or not the

cheque has been advanced to discharge a legally enforceable debt or issued as security and whether or not the petitioner/accused received

consideration from the respondent/complainant and whether the petitioner had signed in the cheque could all be decided only after a full fledged

trial. As such the learned Magistrate on considering that no witnesses had been examined and no documentary evidence had been marked, along

with the petition, held that the petitioner/accused could not be discharged from the criminal case, at this stage of the case and hence dismissed the

petition.

Aggrieved by the dismissal of her petition, the petitioner/second accused has preferred the present revision.

It was pointed out that the cheque dated 20.9.2004 (cheque No. 946979) had not been signed by the petitioner and the account is also not a

joint account and that it is an ""either or survivor account"". As such, no offence has been made out on the petitioner. It was contended that the

learned Magistrate erred in holding that once cognizance of complaint is taken, he had not authority to discharge the petitioner, when there is

manifest error. It was pointed out that when the basic ingredient for attracting Section 138 of Negotiable Instruments Act is not there against the

petitioner, the learned Magistrate ought to have discharged the petitioner.

The learned counsel for the revision petitioner, in support of his contentions has cited the following judgments:

N. Gopalan Vs. K. Udhayakumar

Negotiable Instruments Act, 1881 (26 of 1881), Section 141 - A proprietary concern is not covered under definition of ""Company"" found in

Explanation to Section 141 - Husband cannot be prosecuted for offence u/s 138 as a person responsible for conduct of business of proprietary

concern of his wife.

The learned counsel for the respondent submitted that the discharge petition was dismissed by the learned Magistrate after assigning valid

reasons stating that the accused name was typed in the cheque and that the veracity of the signature and liability could be determined only after trial

after framing necessary issues regarding this. The learned counsel further submitted that as per the cheque leaf, the revision petitioner and her

husband are jointly operating the account. Therefore, both are jointly and severally liable to pay the amount for discharge of a legally enforceable

debt of a sum of Rs. 5,30,000/-. The discharge petition has been filed by the accused only in order to drag on the proceedings. The main case is

pending since 2004 onwards. The learned counsel further submitted that speedy trial is necessary under Article 21 of the Constitution.

From the foregoing discussions and on perusing the impugned order, and after hearing the arguments of the learned counsels, this Court does

not find any discrepancy in the said impugned order. Therefore, this Court is not warranted to interfere with the impugned order passed by the

learned Magistrate. This Court directs the learned Magistrate to dispose the main case on topmost priority basis. Resultantly, the above revision is

dismissed. Consequently, the order passed in Crl. M.P. No. 974 of 2005, on the file of XIII Metropolitan Magistrate Court, Egmore, dated

28.10.2005 is confirmed. Consequently, connected miscellaneous petition is closed. Accordingly ordered.