IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 Crl.L.P..No. 672 of 2011 ------------------------------- (CC.No.668/1999 of Judicial First Class Magistrate Court-I,NEYYATINKARA) .................... PETITIONER/COMPLAINANT: ------------------------------------------ B.VENUGOPALAN,BALAKRISHNA VILASATHU VEEDU,MANALOOR DESOM,NEYYATTINKARA VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.SREEKANTH S.NAIR RESPONDENTS(S): STATE & ACCUSED -------------------------- 1. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. M.SUBRAMANIYAM,RETIRED SUPERINTENDING OFFICER,PATTOM,THIRUVANANTHAPURAM,NOW RESIDING AT T.C.NO.38/425,KOCHAR ROAD,THIRUVANANTHAPURAM 695 001. R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 672 of 2011 ---------------------------------------- Dated this the 24th day of August, 2011 O R D E R The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks special leave under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the order of the trial court by which the learned Magistrate, in his complaint, acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the petitioner/complainant is that on 1.5.1999, the accused borrowed an amount of Rs.1 lakh from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 1.7.1999, which when presented for encashment, dishonoured for the reason that the account closed. According to the complainant, though a statutory notice was issued, the cheque amount was not paid and therefore, the accused has committed the offence CRL.L.P.NO.672 of 2011 :-2-: punishable under Section 138 of the N.I.Act. It is, with the above allegation, the complainant approached the court of Judicial First Class Magistrate-I, Neyyattinkara by filing a complaint based upon which cognizance was taken for the offence under Section 138 of the N.I.Act and C.C.No.668 of 1999 was instituted. 3. It appears that during the pendency of the matter before the court below, the charge was altered and a new charge was framed under Section 420 of I.P.C. and thereafter, the trial court convicted the accused under Section 420 of I.P.C. and also sentenced to undergo imprisonment for one year and to pay fine of Rs.5000/- and the default sentence is fixed as three months simple imprisonment. Against the above judgment of the trial court, the second respondent/accused preferred an appeal and the appellate court, by judgment dated 29.2.2008 in Crl.A.No.507 of 2005, remanded the matter back to the trial court for reconsideration and disposal from the stage of trial immediately before the stage at which Crl.M.P.No.9777 of 2004 was CRL.L.P.NO.672 of 2011 :-3-: filed in the trial court. From the impugned order, it appears that the Sessions Court has held that the procedure adopted by the trial court on the basis of Crl.M.P.No.9777 of 2004 is illegal and it was also observed by the appellate court that the delay can be condoned after the amendment of the N.I.Act and further that, even in a closed account, a prosecution under Section 138 will lie as it can be considered as an account maintained. 4. It is on the basis of the above mentioned order of the appellate court, the case was reconsidered by the trial court. Thus, by the impugned judgment, the trial court has found that the accused has received legal notice in terms of the proviso to Section 138 of the N.I.Act on 29.7.1999 and the complaint was filed only on 23.9.1999 and the complainant ought to have filed the complaint within one month from the date on which the cause of action arises and if it was not done, the complainant can very well file a petition to condone the delay, but in this case, no such petition for condonation of delay was CRL.L.P.NO.672 of 2011 :-4-: filed. Thus, according to the learned Magistrate, the complaint is bad for non-compliance of legal mandate laid down in Section 142(1)(b) of the N.I.Act and accordingly the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which leave of this Court is sought for under Section 378(4) of the Cr.P.C. 5. I have heard Mr.R.T.Pradeep, learned counsel appearing for the petitioner. I have also perused the judgment of the trial court. 6. The counsel for the petitioner vehemently submitted that since cognizance has already taken by the trial court, there is no justification for the trial court in acquitting the accused under Section 255(1) of the Cr.P.C., stating that the complaint was barred by limitation. In the light of the specific finding of the trial court that the complaint is bad for non-compliance of the legal mandate laid down under Section 142(1)(b) of the N.I.Act and in the light of the argument advanced by the learned counsel for the petitioner, the question to be CRL.L.P.NO.672 of 2011 :-5-: considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused under Section 255(1) of Cr.P.C. 7. In the present case, from the recital of the facts, it can be seen that the petitioner herein initially approached the trial court by filing a complaint for the offence under Section 138 of the N.I.Act and the court has taken cognizance for the said offence on the basis of such complaint and while the matter was pending before the trial court, an application was filed to alter the charge and consequently, a fresh charge was framed for the offence under Section 420 of I.P.C. and the trial was ended in its logical conclusion and found that the accused is guilty under Section 420 of I.P.C. Accordingly, appropriate sentence was imposed against him. The above conviction and sentence was challenged at the instance of the accused by preferring Crl.A.No. 507 of 2005 and after finding the irregular procedure and illegality committed by the trial court, the appellate court (the court of II CRL.L.P.NO.672 of 2011 :-6-: Additional Sessions Judge) remanded the matter as per its judgment dated 29.2.2008 in Crl.A.No.507 of 2005. The learned counsel for the petitioner made available to me a copy of the above judgment of the appellate court. The operative portion of the above judgment of the appellate court is quoted hereunder for convenience:- “................Here, two options available for the complainant. One is that while proceeding with the complaint, he could have brought out in evidence the elements of Section 420 of IPC and counsel have submit for framing charge u/s.420 of IPC. The other was that file a revision before the appropriate court. At the very same time, it is to be noted that the procedure adopted by the lower court is illegal. Thus, immediately before the stage when Crl.M.P.9777/04 is filed, the case has to be proceeded. Thus, the case has to be remanded back to the lower court to proceed from that stage onwards and to arrive at a conclusion of the trial, as per law. At this juncture, I am not hesitating to highlight that the delay can be condoned after the amendment of Negotiable Instruments Act. Further that even in a closed account, a prosecution u/s.138 will lie as it can be considered as an account maintained. With the above observation, the appeal remanded back to the lower court for fresh disposal in accordance with law from the stage as indicated above.” From the above judgment, it can be seen that the appellate court has highlighted the fact that the delay can be condoned after the CRL.L.P.NO.672 of 2011 :-7-: amendment of the N.I.Act. The appellate court has also found that connected with a closed account, prosecution under Section 138 will lie. But, in spite of the above specific observation and the finding of the appellate court and granting the opportunity to file petition to condone the delay, the petitioner herein miserably failed to proceed with the trial in any of the options mentioned by the appellate court and even no petition was filed to condone the delay. It is under the above circumstances, the trial court is constrained to find that the complaint was filed belatedly and there was non-compliance of the legal mandate as stipulated in Section 142(1)(b) of the N.I.Act. 8. Sri.R.T.Pradeep, learned counsel for the petitioner strenuously submitted that the trial court has taken cognizance once for the offence under Section 138 of the N.I.Act and therefore, the reasons stated by the trial court for acquitting the accused are not legally and factually sustainable. It is the further submission of the learned counsel that the petitioner is ready to file a delay petition CRL.L.P.NO.672 of 2011 :-8-: either before this Court or before the trial court so as to get over the legal reason assigned by the learned Magistrate to acquit the accused. I am unable to sustain the above contention and the request of the learned counsel for the petitioner. 9. Having regard to the facts and circumstances involved in the case, it can be seen that as per the remand order of the appellate court, the petitioner was granted the very effective remedy to get over the statutory limitation in filing the complaint and to proceed with the case. It is relevant to note that initially, cognizance was taken for the offence under Section 138 of the N.I.Act and the accused did not raise any objection at that point of time. However, the trial court has not entered into any finding for the offence under Section 138 of the N.I.Act., later charge was framed for the offence under Section 420 of I.P.C. that too at the instance of the petitioner and finally, the trial court found that the accused is guilty under Section 420 of I.P.C. It is the above finding of the trial court which is set aside by the appellate CRL.L.P.NO.672 of 2011 :-9-: court as per the judgment indicated above. So, even though the accused did not challenge the proceedings of the learned Magistrate against taking cognizance for the offence under Section 138 of the N.I.Act, on the ground of limitation, subsequently, opportunity was given to the petitioner/complainant as per the judgment of the appellate court to file petition for condonation of delay, but the petitioner has not chosen to avail that opportunity and no petition was filed to condone the delay. There is no rule or law or precedent making the Magistrate powerless from entering into a finding, based upon any circumstances or facts, which are omitted to have been considered at the stage of taking cognizance and entering into the merits of the case, which would likely to relate back to the stage of taking cognizance. However, it is crystal clear that the complaint is barred by limitation since the same was not filed within the time stipulated in accordance with the provisions of Section 138 of the N.I.Act. CRL.L.P.NO.672 of 2011 :-10-: 10. In the present case, as per the impugned judgment dated 6.6.2011, the learned Magistrate has already held that the accused is not guilty and accordingly, he is acquitted. Therefore, this Court, while exercising the jurisdiction either under Section 378(4) of the Cr.P.C. or in case of entertaining an appeal under Section 378(4) of Cr.P.C., against an order of acquittal, has no jurisdiction to condone the delay that occurred while filing the complaint, especially Section 138 provides the time limit, which is a condition precedent for entertaining the complaint itself and for taking cognizance for the offence under Section 138 of the N.I.Act. So also, this Court will not be justified in directing the trial court to entertain an application for the condonation of delay as contemplated by the provisions of the N.I.Act, to rectify the inherent defect of the complainant's case, that too after the final disposal of the case, by which the accused got an acquittal. In the result, the petitioner has miserably failed to make out a case to grant special leave under Section 378(4) of Cr.P.C. and CRL.L.P.NO.672 of 2011 :-11-: accordingly, this Crl.Leave Petition is dismissed. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.672 of 2011 :-12-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 CRL.L.P.NO.672 of 2011 :-13-: