IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Criminal Appeal No. 909/2007

BETWEEN:

M/s. Manipal Centre Apartment Owners Association APPELLANT

AND

Sri. S. Rajendra Babu RESPONDENT

Complaint against XX Additional Chief Metropolitan Magistrate & XXII ASCJ, Bangalore city, Bangalore.

Appellants counsel humbly submits as follows:

1. Appellant's counsel on record was also the Appellant's counsel in C.C No.28590/2003 and PCR No.2954/2001 before the court of the XX ACMM and XXII ASCJ, Bangalore city.

2. That PCR No. 2954/2001 was filed before the XIV ACMM, Mayohall, Bangalore, on 29.12.2001, U/s. 138 of the Negotiable Instruments Act, to prosecute and punish the Respondent for committing an offence of cheque dishonor. That after recording the sworn statement, the court below took cognizance of the complaint and issued summons against the Respondent in C.C. No.28590/2003. Subsequently, the case was transferred to the court of the XX ACMM and ASCJ, Bangalore city.

3. That when the Respondent was evading service, summons was published in the newspaper. But still the Respondent never turned up nor appeared before the court. Consequently, following a High Court judgment, the then learned magistrate recorded evidence of the complainant and found the Respondent guilty and convicted him to pay a fine of Rs. 2,30,228/- by Judgment and Order dated 15.04.2005. Subsequently, when the Respondent was apprehended by the police for committal, filed Criminal Appeal bearing No. 229/2005 before the Session's court whereby the matter was remanded back to the court below to reopen the proceedings and afforded an opportunity to the Respondent.

4. Consequent to the remand, the Respondent cross-examined the Complainant's witness, PW-1 and also examined himself along with a witness as DW-1 and DW-2. For the Complainant's side, 13 documents were marked as Ex. P1 to P13 whereas no documents were marked on behalf of the Respondent/ accused.

5. The brief facts of the case are that the Appellant is a multistoried complex having more than 300 office premises. That the Appellant is a Registered Association of the Apartment owners of the building.

6. That the Respondent-Accused on 27.06.2001 entered into a parking fees collection contract with the Appellant. That accordingly the Respondent-Accused collected the parking fees in the Appellant's premises as agreed and as per the contract, the Respondent issued a cheque for Rs. 1,15,114/- dated 02.11.2001 in favor of the Appellant towards payment of the monthly collection charges. But when the cheque was presented, it was dishonored and returned on 5.11.2001 and received from the bank along with the debit advice on 6.11.2001.

7. Consequently, on 12.11.2001, the Appellant issued a Notice demanding payment of the cheque amount within 15 days of the notice. The undisputed fact of the case is that the Respondent received the notice on 13.11.2001 but the Respondent neither paid the cheque amount nor replied to it. Therefore, the Appellant filed PCR No.2954/2001 on 21.12.2001, under section.138 of the N.I. Act. That after closing evidence in the proceedings, the case was set for arguments and at that stage the then learned magistrate was transferred and Sri. S.M. Channappanavar was the new presiding officer of the court. That at the time of arguments on 24.04.2007, Complainant counsel's junior colleague, Mr. Prashanth, Advocate, appeared before the court below and requested the court to hear the Appellant's arguments. But surprisingly the learned judge ignored the request and stated that no arguments are required and the court would take care of the complaint on its own. Accordingly, the court below reserved the case for judgment and posted it for orders on 25.04.2007 without hearing any arguments. But surprisingly on the following day, the court below dismissed the complaint U./s. 138 of the Negotiable Instruments Act by a most reckless order without reason or rhyme in law or facts. Consequently, the Appellant has filed this appeal aggrieved by the said order passed by the learned magistrate.

8. That on 24.05.2007, when the counsel received the copy of the Judgment, was shocked to find that the learned magistrate has dismissed the complaint without any legal ground. The magistrate has deliberately passed the Judgment maliciously, knowing fully well that it is contrary to law.

The following is the text of the judgment pronounced.

"5 Heard the arguments.

The following points which arise for my consideration are as under:

1. Whether complainant has complied the mandatory requirement of Sec.138(c) of NI Act?

2. What order?

3. My findings on the above points are as under:

Point No.1 in the negative

Point no.2 as per final orders.

For the following:

R E A S O N S

8. Para No.1: The notice was issued on 12.11.2001 and the complaint is lodged on 21.12.2001. As per Sec.138(c) of NI Act, the complaint should have been filed within 15 days from the date of service of notice. The accused received the notice on 13.11.2001 and the complaint is lodged on 21.12.2001. The complaint is not within the statutory period of 15 days after the service of the notice to the accused. The amendment to Sec.142 (b) came into force from 6.2.2003, the case in hand is earlier to the amendment of Sec.142 (b). As per the new amendment. The complaint may be lodged even after the expiry of 30 days. If the complainant satisfies the court that he had sufficient cause for not making a complaint within the statutory period. The said benefit is not available to the complainant in the case, because, the notice to the accused and the complaint are much prior to the date of 6.2.2003, the date on which the amendment came into force.

9. There is a delay of 23 days in lodging the complaint. The complainant ought to have lodged the complaint on or before 28.11.2001, but the complainant lodged the complaint on 21.12.2001. so, the complainant has not complied with the statutory requirement of Sec.138 of NI Act.

10 If the complaint is not filed within the statutory period fixed u/s.138 (c) of the Act, the only course left to the court would be to dismiss the complaint. Therefore, the jurisdiction of this court is seriously affected and the complaint stands dismissed. Accordingly, I answer point No.1 in the negative.

11 Para No.2: In view of my findings on points 1 and 2, I proceed to pass the following:

O R D E R

The accused is not found guilty of the offence punishable under section 138 of NI Act and he is acquitted u/s.255 (1) of Cr.P.C.

The Bail bond of the accused stands cancelled".

9. That the impugned order passed by the Learned Judge is perverse and illegal and has been deliberately rendered without affording an opportunity to the Appellant to argue the complaint filed under Section 138 of the Negotiable Instruments Act.

10. That even a layman in this country is fully aware that a complaint under section 138 of the Negotiable Instruments Act can be filed only after 15 days of notice to the Accused for payment. That section 138 of the Negotiable Instruments Act, very clearly prescribes that within 15 days of the notice, if the Accused fails to pay the cheque amount, then it amounts to an offence. No complaint can be filed before the notice period of 15 days. That only on the 16th day the cause of action to file the complaint arises, and thereafter time to file is within one month after the 16th day of the notice. Therefore, the complaint filed by the Appellant on 21-12-2001 after the notice was served to the Respondent on 13-11-2001 was well within time. That the 15 days notice period expired on 28-11-2001. Hence complaint could have been filed any day between 29-11-2001 and 29-12-2001 as per Section 138 & 142 of N.I. Act. But the court below has deliberately passed a malicious order contrary to law holding that the Complaint filed on 21-12-2001 is time barred. That such conduct amounts to an offence U/s.219 of IPC. Further, it has resulted in grave miscarriage and travesty of justice.

11. That it definitely warrants an enquiry by this Hon'ble High Court in exercise of its power under Article-235 of the Constitution. That there is definite needle of suspicion pointing against the said judge and definitely warrants disciplinary action in accordance with law to uphold the majesty of law and save the temple of justice from being eroded by a black sheep in the system.

12. That the court below has taken a view in violation of section 138 and 142 of the Negotiable Instruments Act, which amounts to gross disobedience and judicial misconduct for deliberate failure to follow the statute and law laid down by the Supreme Court and also by the various High Courts. That the manner in which the court below has throttled justice deserves to be deprecated and reprimanded. That such verdict clearly proves scant respect for law of the country and the law laid down by the Supreme Court and various High Courts.

13. Criminal Appeal No. 910/2007 is also arising from another Judgment and Order dated 25-4-2007, passed by the same court in C.C. No. 27356/2002 whereby the Complaint filed by the Appellant against the Respondent in respect of another cheque dishonor was dismissed on the same grounds contrary to law.

14. That if no corrective action is taken the judge shall continue to wreck and sabotage the judicial process and system.

For the reasons stated above this Hon'ble Court be pleased to recommend necessary action to uphold the Majesty of law and Justice.

BANGALORE

DATE: 31-1-2008 ADVOCATE FOR APPELLANT