Judgment:
A. Gopal Reddy, J.
1. This appeal is directed against the Judgment of 5th Metropolitan Magistrate, Hyderabad in C.C. No. 261 of 1996 dated 1.5.2000 whereby the 1st respondent-accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act.
2. The appellant-company filed the above complaint under Section 138 of the Negotiable Instruments Act (for short 'the Act') stating that the company used to facilitate the members of the company to save money and advance loans to the members. Accused who is a member of the company raised loan of Rs. 90,000/- from the appellant-company under Loan Account No. OL160 undertaking to repay the same with interest. The accused issued a cheque dated 11.12.1995 (Ex.P.6) for a sum of Rs. 10,000/- towards part payment of the loan, but when the cheque was presented, it was dishonoured for 'insufficient funds' on 20.12.1995. The appellant, therefore, got issued a legal notice on 26.12.1995, but in spite of receipt of notice on 4.1.1996, the accused neither paid the amount nor gave any reply.
3. In order to prove the guilt of the accused, P.W.1 was examined on behalf of the company and P.Ws.2 and 3 who are the managers of the bank were examined and Exs.P.1 to P.11 were marked. No oral or documentary evidence was let in on behalf of the respondents.
4. The learned Metropolitan Magistrate held that the complaint was initially filed on 9.2.1996 by the accountant of the company. The same was returned on 12.2.1996 on the ground that he was not competent to file it. Thereafter, deleting the name of the accountant and inserting the name of P.W.1 the complaint was re-presented on 26.3.1996. The cause of action arose on 20.1.1996 and the period of limitation within which the complaint is to be filed expires on 20.2.1996. It was held that since the complaint has not been re-presented within the period of limitation i.e. on or before 20.2.1996, the complaint is barred by limitation. It was further held that P.W.1 was authorized to represent the case only on 4.3.1996 and, therefore, the complaint, which was filed on 12.2.1996 by a person who is not authorized to file it, is not maintainable and since it was re-presented by the authorized person after the period of limitation is over, the complaint is barred by limitation. The Court below further held that the complainant has not filed any statement in respect of the loan raised by the accused. It was pointed out that P.W.1 admitted that Ex.P.6 cheque does not disclose whether it was issued towards Account No. OL160 for clearing the loan amount or for any other accounts. In the absence any material that the cheque was issued in discharge of any particular loan account, an inference can be drawn that the cheque was not at all issued by the accused exclusively towards Loan Account No. 0L160 and the accused being a debtor and having not issued the cheque for discharge of any particular debt, he cannot be convicted for the offences and accordingly acquitted him.
5. Sri N.V. Raghavareddy learned Counsel for the appellant contended that the complaint was filed within the period of limitation and it is only at the instance of the Court that the same was represented by filing the same through an authorized person and in the absence of any specific time granted by the court, the time taken for making re-presentation cannot be treated as delay and as the complaint at the first instance was filed within the period of limitation, the complaint must be treated as having been filed within limitation. In support of the said contention, reliance has been placed on the decision of Madras High court in A. Vinayagam v. Dr. Subash Chandran 2000(2) ALD (Crl.) 150 (MAD).
6. As rightly contended by Raghava Reddy, learned Counsel for the appellant that the first ground on which the lower Court held that the complaint is barred by limitation cannot be sustained. Indisputably, the complaint was filed well within the time i.e. on 9.2.1996, but the Court returned the same on 12.2.1996 on the ground that complainant was filed by a person who is not authorized to file it and the same was re-presented on 26.3.1996 with the authorization of P.W.1.
In A. Vinayagam v. Dr. Subash Chandran (supra), a Division Bench of the Madras High Court has the occasion to deal with similar question on reference made to it on the conflicting views expressed by two learned Judges of that High Court. The reference made to the Division Bench was 'In order to decide as to whether the complaint for the offence under Section 138 of the Negotiable Instruments Act filed before the Court is within time, which is the date to be taken into account - Is it the date of presentation made before the Court or the date on which the Court took cognizance?'. It was held that once the complaint was filed within limitation and merely because the Magistrate 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 of the complaint would be held to be beyond limitation. The reference was answered as under:
We, therefore, answer the reference by holding that the date, which is to be taken into account, would be the date on which the complaints were initially presented. They being within limitation, the complaints would have to be held as validly filed and on that count, the accused cannot claim any benefit. We also hold that the act on the part of Court taking cognizance of the complaints has no concern with the date of filing of the complaint on a proper reading of Section 142(b).
7. We may also refer to a decision of the Kerala High Court in Labour Enforcement Officer (Central) Cochin v. C.V. Avarachan and Ors. 2004(4) A.I.C.L.R. 13 : 2004 Crl.L. 2582, wherein a learned Single Judge of the Kerala High Court also considered a similar question. The case relates to violation of the provisions of the Payment of Wages (Mines) Rules, 1956. The Labour Enforcement Officer (Central), Cochin detecting certain violations filed complaints on 10.6.1992 within the period of limitation. The period of limitation prescribed under Section 468 of the Code of Criminal Procedure for taking cognizance is six months. Though the complaints were initially filed on 10.6.1992 i.e. within the period of limitation of six months prescribed under Section 468 of the Code of Criminal Procedure, the Court returned them as copies of documents referred to in the complaints were not produced along with the complaints. No specific time was prescribed by the Court for compliance. The complainant re-presented the same after curing the defects on 30.6.1992 by which date the six months prescribed under Section 468 Cr.P.C is over. However, cognizance was taken on 30.6.1992 and the matter was proceeded with. Finally, judgment was passed acquitting the accused on the ground that the prosecution is barred by limitation. It was held that the date of initial presentation has to be considered and reckoned as crucial unless there be unreasonable delay in re-presentation in violation of the directions issued by the Court. If on account inadvertent oversight the court had returned the complaints without specifying any time limit for re-presentation, then the relevant question can be whether re-presentation has been made within a reasonable time and it depends upon facts and circumstances of each case. It was held that the complaints must be reckoned as complaints presented within time and re-presented after curing the defects in accordance with law without any unreasonable delay and in the circumstances the fact that re-presentation was made on 30.6.1992 cannot alter the position regarding the applicability of Section 468 Cr.P.C.
8. At this stage, It is apt to note the Judgment of the Supreme Court in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd., and Anr. : 2002CriLJ266 . The question involved is whether a complaint lodged under Section 138 of the Negotiable Instruments Act by Manager or Deputy General Manager who had not been authorized by Board of Directors to sign and file complaint on behalf of company who is payee can be a ground for quashing the complaint and whether authorization must be on the date when the complaint is filed or whether subsequent authorization validate the complaint. While dealing with the said question, the Supreme Court has approved the ratio laid down by the Apex Court in Vishwa Mitter v. O.P. Poddar : 1984CriLJ1 and Associated Cement Co., Ltd. v. Keshvanand : 1998CriLJ856 . In Vishwa Mitter v. O.P. Poddar (supra), the Supreme Court held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case, the only eligibility criterion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criterion is satisfied as the complaint is in the name and on behalf of the appellant Company. In Associated Cement Co. Ltd. v. Keshvanand (supra) the Supreme Court held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that it is open to the de jure complainant- company to seek permission of the Court for sending any other person to represent the company in the Court. It was also held that even presuming that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the Company can send a person who is competent to represent the company and the complaint could not be quashed on that ground. Approving the same, the Supreme Court inM.M.T.C. Ltd. Case held that the same cannot be a ground for quashing complaint since the defect is curable.
9. From the above, it is seen that that though a complaint has been initially filed by a person who is not authorized, but such defect can be rectified by the company at a later stage by authorizing a competent person to represent company.
10. In the instant case, it is not in dispute that the complaint has been filed on 9.2.1996 i.e. within the period of limitation but it was returned for rectifying some defects on 12.2.1996 and the same was re-presented on 26.3.1996 i.e.; within six weeks from the date of return. The Court has also not fixed any time for re-presentation. Therefore, it cannot be said that there is abnormal delay in re-presenting the complaint and it must be held that it has been filed within a reasonable time. Further, after re-presentation of the complaint, the compliant was taken cognizance after recording the sworn statement of the director re-presenting the complaint on 30.3.1996. It may also be noted that while taking cognizance the Magistrate has not recorded anything about the authorization in representing the company or the delay in re- presenting the complaint. Therefore, I am of the considered view that once a complaint is filed within the limitation period the same has to be treated as validly filed and the defects, if any, in the complaint can be cured at any time. If a complaint is returned on the ground that it has been filed by an unauthorized person, such defect can be rectified during the course of trial by substituting the name of an authorized person to represent the company. Therefore, it is clear that when a complaint is returned due to certain defects and the same is re-presented after rectifying the defects, it is the date of filing of original complaint that is relevant for deciding limitation but not the date of re-presentation of the complaint. As such, the finding of the Magistrate that the complaint ought not to have been taken cognizance suffers from a legal infirmity and cannot be sustained. The finding of the Court below to that extent is liable to be set aside and acquittal of accused on that ground cannot be sustained.
11. However, the other grounds taken into account by the Magistrate in acquitting the accused appears to be justifiable for the reason that even according to P.W.1 there are three types of loan accounts and that the accused kept a sum of Rs. 45,000/- in a fixed deposit. P.W.1 has also deposed that the said amount was adjusted towards loan and that he has no knowledge about the nature of the transaction or the security given by the accused, but the complainant generally sanction loans to the members after the loan is properly secured. No statement of account has been filed by the complainant in respect of the loan raised by the accused and he admitted that Ex.P.6 cheque does not disclose as to whether it was issued towards Loan Account No. OL160 for clearing the amount. The complainant assign number to very loan and cheque in question was not issued towards any particular loan nor any letter was given by the accused stating that the cheque in question was issued in respect of a particular loan. Therefore, as rightly held by the Court below, an inference can be drawn that the cheque in question was not obtained from the accused exclusively towards Loan Account No. OL160. P.W.1 categorically admitted that the cheque in question was not issued towards particular loan amount. The lower Court held that when once the complainant has failed to prove that the cheque was issued for a particular loan account and once the accused being a debtor not at all issued the cheuqe voluntarily for discharge of any particular debt, accused cannot be convicted for the offence. In the considered opinion of this Court, the said finding recorded by the lower Court cannot be interfered with.
12. Further, a Full Bench of this Court in G. Vasu v. Syed Yaseen Sifuddin Quadri : AIR1987AP139 held that though the evidential burden is initially placed on the defendant by virtue of Section 118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the prontoe or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption 'disappears'. The Supreme Court analyzing the same in M.s. Narayana Menon v. State of Kerala (2006) 3 SCC (Crl.) 30 held that 'if for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a 'fortiori' even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court'. Considering the facts and circumstances of the case, the Supreme Court held:
We, in the facts and circumstances of this case, need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of the debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act.
13. In the instant case, as already pointed out above, P.W.1 himself admitted that the accused raised three types of loans and Ex.P.6 cheque does not disclose whether it was issued towards Loan Account No. OL160 in question or towards any other particular loan account nor any letter accompanied it. Therefore, no offence can be said to have been made out. The initial burden is on the accused by cross-examining the complainant to prove that it was not issued in discharge of a particular debt and, in the present case, the same was duly discharged by the accused by eliciting through the cross-examination of the complainant, therefore, the burden now shifts upon the complainant to prove that the cheque was in fact issued in discharge of the particular loan account in question. But, the complainant has not discharged the burden shifted upon it. Therefore, the complainant-appellant having failed to do so, the accused cannot be held to be liable for the offence and he is entitled to be acquitted.
14. In view of the same, the acquittal of the accused on the ground that the complainant has failed to discharge the burden that the cheque was issued towards the loan account do not suffer from any legal infirmity. Therefore, no interference is called for with the judgment of the Court below on that account.
15. In the result, the appeal fails and it is accordingly dismissed.