Case Note & Summary
The complainant, M/s Travel Force, a division of M/s Hede Consultancy Co. Ltd., filed a criminal complaint against Dr. Mohan N. Bhave under Section 138 of the Negotiable Instruments Act, 1881, alleging that a cheque for Rs. 12,00,000 issued by the accused was dishonoured due to 'payment stopped by drawer'. The learned Judicial Magistrate First Class (J.M.F.C.) issued process against the accused on 30.07.2001 after recording the complainant's statement on oath. The accused applied for recall of process on 24.02.2004, which was dismissed on 07.10.2004. The accused then approached the High Court under Section 482 Cr.P.C. and Article 227 of the Constitution, but the High Court declined to exercise its extraordinary jurisdiction and directed the accused to file a revision before the Sessions Court, granting 15 days to present the petition. The accused filed the revision before the Additional Sessions Judge, who entertained it and set aside the order issuing process, holding that the cheque was given as security and not for discharge of a debt. The complainant challenged this order in the present revision. The High Court held that the revision before the Sessions Court was not time-barred as it was filed pursuant to the High Court's direction. On merits, the High Court found that the Sessions Court erred in concluding that the cheque was given as security, as this was a factual issue requiring trial. The High Court set aside the Sessions Court's order and restored the order issuing process, directing the trial to proceed expeditiously.
Headnote
A) Criminal Procedure - Limitation for Revision - Section 397 Cr.P.C. - The revision filed by the accused against the order issuing process was not time-barred as it was filed within 15 days of the High Court's order directing the Sessions Court to register and dispose it as a revision application, and the High Court had condoned the delay by implication. (Paras 5-6)
B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Issuance of Process - The order issuing process was based on the complainant's statement on oath and the cheque return memo, and the accused's defence that the cheque was given as security and payment was stopped due to non-receipt of fixed deposit receipt was a matter for trial. (Paras 3, 7)
C) Criminal Procedure - Recall of Process - Section 204 Cr.P.C. - The Sessions Court, while exercising revisional jurisdiction, could not recall the process on the ground that the cheque was given as security, as that was a question of fact to be decided at trial. (Para 7)
Issue of Consideration
Whether the learned Additional Sessions Judge erred in entertaining the revision application filed by the accused against the order issuing process, despite the same being time-barred, and whether the order issuing process was sustainable.
Final Decision
The High Court allowed the revision, set aside the order of the Additional Sessions Judge dated 17.03.2006, and restored the order of the J.M.F.C. dated 30.07.2001 issuing process against the accused. The trial court was directed to proceed with the case expeditiously.
Law Points
- Limitation for revision
- Recall of process
- Section 138 Negotiable Instruments Act
- 1881
- Section 397 Cr.P.C.
- Section 482 Cr.P.C.
- Article 227 Constitution of India
Case Details
2006 LawText (BOM) (10) 83
Criminal Revision Application No. 28 of 2006
Mr. V. B. Nadkarni, Senior Advocate with Mr. Y. V. Nadkarni, Advocate for the Petitioner; Mr. A. D. Bhobe, Advocate for Respondent no.1; Mr. C. A. Ferreira, Public Prosecutor for Respondent no. 2
Dr. Mohan N. Bhave, State of Goa
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Nature of Litigation
Criminal revision against order of Additional Sessions Judge setting aside issuance of process under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
The complainant sought to set aside the order of the Additional Sessions Judge dated 17.03.2006 and restore the order of the J.M.F.C. issuing process against the accused.
Filing Reason
The complainant alleged that the accused issued a cheque for Rs. 12,00,000 which was dishonoured due to 'payment stopped by drawer', and the accused failed to pay despite notice.
Previous Decisions
The J.M.F.C. issued process on 30.07.2001; the accused's application for recall of process was dismissed on 07.10.2004; the High Court in Criminal Misc. Application No. 52/2005 directed the accused to file a revision before the Sessions Court; the Additional Sessions Judge allowed the revision and set aside the process on 17.03.2006.
Issues
Whether the revision filed by the accused before the Sessions Court was time-barred?
Whether the Sessions Court was correct in setting aside the order issuing process on the ground that the cheque was given as security?
Submissions/Arguments
The complainant argued that the revision before the Sessions Court was time-barred as it was filed beyond the period of limitation from the order issuing process dated 30.07.2001.
The accused argued that the revision was filed within 15 days of the High Court's order dated 06.04.2005, as directed, and therefore not time-barred.
The complainant further argued that the Sessions Court erred in holding that the cheque was given as security, as that was a matter for trial.
Ratio Decidendi
The revision before the Sessions Court was not time-barred as it was filed pursuant to the High Court's direction, which impliedly condoned the delay. On merits, the Sessions Court erred in concluding that the cheque was given as security without trial, as the nature of the transaction and the defence were questions of fact to be decided at trial. The order issuing process was based on prima facie material and could not be set aside in revision.
Judgment Excerpts
The learned Additional Sessions Judge has held that the said revision was filed on behalf of the accused in terms of the Order of this Court dated 06.04.2005.
The order issuing process was based on the complainant's statement on oath and the cheque return memo, and the accused's defence that the cheque was given as security and payment was stopped due to non-receipt of fixed deposit receipt was a matter for trial.
Procedural History
The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 on 17.11.2000. The J.M.F.C. issued process on 30.07.2001. The accused applied for recall of process on 24.02.2004, which was dismissed on 07.10.2004. The accused filed Criminal Misc. Application No. 52/2005 before the High Court under Section 482 Cr.P.C. and Article 227 of the Constitution, which was disposed of on 06.04.2005 with a direction to file a revision before the Sessions Court. The accused filed a revision before the Additional Sessions Judge, who allowed it on 17.03.2006, setting aside the process. The complainant filed the present revision against that order.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 397, 482, 204
- Constitution of India: 227
