Shree Maruthi Yarns vs Sri Ramakrishna Mills (Coimbatore) Limited

S. Palanivelu, J.—This petition has been filed to call for the records in C.C. No. 104 of 2004, pending on the file of Judicial Magistrate

Court, Sathiamangalam, and quash the same.

Petitioners are accused in the calendar case, which was registered on the strength of a private complaint, lodged by the respondent, u/s 138 of

The Negotiable Instruments Act, as regards dishonour of a cheque.

While the court fee payable for the complaint was Rs. 325/-, at the time of presenting the complaint on 29.09.2003, the complainant paid Rs.

100/- only, thereby the complaint was returned by the Judicial Magistrate on 10.10.2003, mentioning, ""sufficient stamps to be affixed"".

After complying with the said direction, the complaint was re-presented on 16.10.2003 and, on 20.10.2003, the said complaint was again

returned with an endorsement that in the petition, name of the accused, who issued the cheque on behalf of the firm, i.e., fourth accused was not

clearly mentioned. When it was re-presented on 23.10.2003 on fourth occasion, the complaint was again subjected to return by the Court on

14.11.2003, stating that the previous return was not complied with properly and, hence, the same was further re-presented on I9.ll.l003.

Thereafter, on 09.02.2004, after scrutiny of the complaint and recording the sworn statement of the complainant, the learned Judicial Magistrate

found a prima facie case and took cognizance of the matter.

The main contention of the learned Counsel for the petitioners is that after receipt of a complaint by a criminal Court, return of the same to the

complainant is alien to criminal law and, hence, the complaint has to suffer dismissal in limine, in view of the defects found therein. It is his further

contention that the moment the court seal is affixed on the complaint, the complaint becomes the property of the Court and it is strange to return

back the same, which act of the Court would vitiate the proceedings and that the law expects a defect free complaint to be made to a Judicial

Magistrate to take cognizance of the offence and, as a corollary, the Magistrate should have dismissed the complaint u/s 203 Cr.P.C. Also, it is his

argument that repeated returns of complaint by the Judicial Magistrate is out of the framework of The Negotiable Instruments Act and, by means

of return, the legal point of limitation for lodging the complaint is miserably thwarted.

One more point canvassed on behalf of the petitioners is that there is no provision either in Cr.P.C. or Criminal Rules of Practice, for return of

complaint, for the purpose of affixing proper court fee, after it was presented with deficit court fee and, as such, the complaint should have suffered

dismissal at the hands of the Magistrate, for insufficient court fee.

Conversely, learned Counsel for the respondent would submit that law recognises return of complaint by a Judicial Magistrate, for making good

of certain defects, and, returning of complaint, which was presented to the Court in time, and its representation afterwards could, in no way, be

construed as extension of statutory period of limitation and the order of returning the complaint was only administrative, which was not at all

judicial, so as to prejudice the rights of the other side, which have accrued to him by law of limitation.

In order to justify the order of return passed by the Judicial Magistrate, learned Counsel for the respondent seeks aid of Section 207 Cr.P.C.,

which provides that when the Magistrate was not competent to take cognizance of the matter, he may return it for presentation before the proper

Court. By saying so, the learned Counsel submits that the return of complaint cannot be said to be unknown to criminal law. In so far as affixing of

inadequate court fee is concerned, he relied upon the provisions of Sections 4 and 5 of the Tamil Nadu Court Fee and Suit Valuation Act, 1955,

which empower the Presiding Officer of a Court to extend the time for affixing proper court fee payable on the plaint or petition, as the case may

be. In support, he also relies upon the analogous provisions of Order 7, Rule 11 C.P.C., stating that the plaint shall be rejected only where the

relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply

the requisite stamp-paper within a time to be fixed by the Court, fails to do so. He further adds that the Court has got every right to require a party

to supply additional requisite stamp paper to rectify the defect, which is a mere procedural aspect and not an illegality.

With regard to the events of returning and re-presenting the complaint by the Court and the complainant respectively, we have to see, whether

they would prejudice the valuable legal rights of the accused. If the answer is positive, the proceedings in C.C. No. 104 of 2004 will have to face

quashment.

It is well settled that an irregularity can at any time be rectified, but the answer will be emphatically NO, in case of illegality and if it occurs in a

proceeding, it has to be axed out.

Learned Counsel for the petitioners cites a Division Bench decision of this Court in A. Vinayagam and 3 others Vs. Dr. Subash Chandran and

another, , in which it was held that it is the duty of the complainant to produce defectless complaint, which becomes the property of the Court, after

Court seal is affixed on it and the Court fee stamps have been cancelled. It was further held therein that endorsement of returns would not be

termed to be judicial orders and they could, at the most, be termed to be administrative orders and only after examining the complainant or

witnesses, the order passed by the Magistrate would be a judicial one, in the absence of which, the Judicial Magistrate has no jurisdiction to pass

any orders. In the said decision, two previous judgments of this Court in T. Vanamalai v. T.D. Sundara Varadhan 1995 (2) L.W.(Crl.) 405 and D.

Ramamoorthy v. K.J. Duraisamy 1995 (1) L.W.(Crl.) 300, were referred to and finally on the basis of the dictum laid down by the Apex Court, it

was concluded that the date of initial presentation of the complaint has to be taken for the purpose of calculating the limitation and, hence, it should

be deemed to have been validly filed and, on that ground, the accused cannot claim any benefit. The relevant portion of the said Division Bench

judgment in Vinayagam''s case reads as follows:

...It is the cardinal principle of law that the act of court should not prejudice any one ""Actus curise neminem Gravabit"". The Supreme Court has

reiterated this principle in Jang Singh Vs. Brijlal and Others, . There, the Supreme Court had refused to find fault with a party, who had made short

payment by one rupee, for which the court was responsible. We would choose the same course by holding that once the complaints were filed

within limitation, merely because the Magistrates, completely contrary to the procedure known to law, chose to return the same without fixing the

date for re-presentation, it should not be held that the subsequent filing by the complainants would be held to be beyond limitation.

Following the principle laid down in the decision aforementioned, it is to be held that though there was deficit court fee on the date of original

presentation of the complaint within the prescribed period of limitation, it could be said to be valid, irrespective of the subsequent returns by the

Court. The return of plaint for rectification of certain defects as to court tee and re-presentation by the party after rectification to the Court are the

stages in administrative procedures. Since the complainant or any of the witnesses were not examined, the return by the Court was not at all a

judicial order, so as to prejudice the accused. The accused has no say in the matter of payment of deficit court fee by the complainant before

taking cognizance of the complaint by the Judicial Magistrate, since it is a matter between the Court and the complainant. When the complaint is

presented within the statutory period, the accused has no right to focus his attention to the proceedings and contend that the inadequately stamped

complaint would cause prejudice to him. In case the complaint got time barred, it could be observed that the valuable statutory right, which would

accrue to the accused, would get endangered. In the absence of such circumstance before taking cognizance, the acts of the Court, which are

purely administrative in nature, could not be questioned or challenged by the accused persons. Though the return of complaint by the Judicial

Magistrate is an irregular procedure, it could not be termed to affect the rights of the accused, as, such irregularity could always be rectified. I

hasten to add, that, in this case, it is not an irregularity.

It transpires that the accused had already knocked the doors of this Court by filing Criminal O.P. No. 28835 of 2004 for quashment of the

very same C.C. No. 104 of 2004 on certain other grounds, but the said petition was dismissed on 24.01.2005.

It is contended by the learned Counsel for the respondent that the grounds, which are portrayed by the petitioners in the present petition, were

already available at the time of filing the previous petition and, after a lapse of about one year, the petitioners have come forward with this petition.

On 24.06.2005, the trial has commenced. The complainant filed proof affidavit for chief-examination and produced 36 exhibits. After a lapse

of over one year i.e., on 02.11.2006, the present petition has been presented before this court, for quashing the proceedings.

In this context, learned Counsel for the respondent would strenuously argue that after the trial was opened for examination of witnesses, there

would be no quashment of the proceedings and, hence, the case has to see its quietus. He placed reliance upon a decision of this Court in P.

Sumathi v. M.P. Ashok 2002 (4) CTC 323 in which, a decision of the Hon''ble Apex Court was referred and followed. The relevant portion of

the said judgment, which contains the incorporation of the relevant portion of the Supreme Court judgment, is as follows:

In support of this, I would rely upon the decision reported in Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., , wherein it has been

observed as follows:

Where the accused moved the High Court at the time when the trial was almost coming to a close and what remained to be done was the

examination of two prosecution and one court witnesses and the High Court quashed the charge and entire proceedings on the grounds that the

complainant suppressed material facts and that the evidence on record did not establish the alleged offence. The order was liable to be set aside.

The proper course at that stage to be adopted by the High Court was to allow the proceedings to go on to come to its logical conclusion, one way

or the other and decline to interfere with those proceedings. The questions whether there was suppression and whether the evidence established

the alleged offence were matters to be considered by the trial court after an appraisal of the entire evidence.

Guided by the principles set out in the above said decision of the Apex Court, this Court has to allow the trial Court to proceed with the trial

and dispose of the matter. In other words, the case before the trial Court, which is in part-heard stage, can, in no way, be quashed and if any order

of quashment is passed, it would be classically improper. Hence, it is not proper for this Court, to exercise the power, conferred u/s 482 Cr.P.C.

In the light of the illuminating judicial pronouncements and in view of the circumstances available in this case, no valid ground is made out to

interfere with or disturb the proceedings in C.C. No. 104 of 2004 on the file of Judicial Magistrate, Sathiamanagalam, and the said case has to

come to its logical conclusion.

Therefore, this petition is devoid of merits and dismissed. Consequently, the connected Criminal M.P. No. 1 of 2006 is also dismissed.