Hotline Shares and Securities Limited, Hubli and ors. Vs. Dinesh Ganeshmal Shah - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [mohan shantanagoudar, j] compensation pecuniary advantage question whether the amount received under mediclaim policy is deductable out of total compensation? held, the insurance money is by virtue of a contractual relationship between the deceased/injured and the insurance company and is payable to the legal heirs of the deceased/injured in terms of the contract. such money cannot be said to have been received by the heirs/injured only on account of the accidental death of the deceased/accidental injuries of the claimant, but truly it is a fruit of the premium paid by the deceased during his life time/injured. the deceased/injured would have bought the insurance policy as an act of his prudence to confer benefit either to himself or to his heirs in case of death. in the case of mediclaim policy, the amount is receivable by the claimant irrespective of accidental death or accidental injuries, even if the concerned person meets with the natural death or on the maturity of the insurance policy. so far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death or accidental injuries, with the pecuniary advantage which from whatever source to him by reason of the death/accidental injuries. in other words, it is the balancing of loss and gain of the claimant occasioned by the accident. but, this has to change its colour to the extent a statute intends to do. thus, it has to be interpreted in the light of the provisions of motor vehicles act. it is very clear that the act delivers compensation to the claimant only on account of accidental injury or death and not on account of any other form of death. thus, the pecuniary advantage accruing in this act has to be deciphered, correlating with the accidental death/injuries. if there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the motor vehicles act. if the pecuniary advantage resulting from death i.e., interpreted as pecuniary advantage coming under all forms of death, then it will include all the assets movable, immovable, shares, bank accounts, cash and every amount receivable under any contract. in other words, all heritable assets, including what is bequeathed by the deceased etc., by such interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability to pay compensation. such interpretation goes against the spirit of the motor vehicles act. under motor vehicles act, whatever, pecuniary advantage is received by the claimant from whatever source, would only mean which comes to the claimant on account of the accidental death/injuries only and not other form of death/illness. thus, it would not include that which claimant receives on account of other forms of death/illness, which he would have received even apart from accidental death/injuries. such pecuniary advantage would have no correlation to the accidental death, for which compensation is computed. any amount received or receivable not only on account of accidental death or accidental injuries but also that would have come to the claimant even otherwise, could not be construed to be a pecuniary advantage, liable for deduction. thus, the mediclaim amount received by the claimant cannot be deducted from out of the total compensation to be paid to the claimant. the amount received by the claimant under mediclaim policy would not come within the periphery of motor vehicles act to be termed as pecuniary advantage liable for deduction. when we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any correlation. the insured (deceased/injured) contributes his own money for which he receives the amount, has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. as aforesaid, the amount receivable as compensation under m.v. act is on account of injury accidental or accidental death, without making any contribution towards it. if if is so, the fruits of the amount received through contribution of the insured cannot be deducted out of the amount receivable under m.v. act. it is to be noted that the compensation payable under m.v. act is statutory, while the amount receivable under the life insurance policy or mediclaim policy is contractual. however, where the employer insures his employee as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. this is because, the employee receives the amount without his contribution. this is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. section 168; accident claim compensation claimant suffered comminute segmental fracture of shaft upper 3rd right femur with posterior cruciate ligament injury on the right knee inpatient in hospital for 11 days and underwent two surgeries with internal fixations tribunal in all awarded rs.61,000/- - in addition rs.5,000/- was awarded towards incidental charges no amount was awarded towards medical expenses because the claimant got reimbursement of medical expenses under a mediclaim policy medical expenses was rs.1,22,300/- - in appeal, held, the amount received under medical expenses should not be deducted. accordingly the claimant was awarded rs.1,22,300/- towards medical expenses and further a sum of rs.15,000/- was awarded towards conveyance, nourishment and other incidental expenses totalling to rs. 2,45,000/- with interest at 6% p.a. on the enhanced compensation - even after the expiry of the statutory period since the petitioners have failed to pay the amount, the complaint came to be lodged. as amended in 1973 which clearly shows that the complaint presented by the advocate would be due compliance required by section 200 of the cr.orderm.p. chinnappa, j.1. heard sri k. appa rao, the learned counsel appearing for the petitioners and sri c.h. jadhav, learned counsel appearing for the respondent.2. the facts of the case may be summarised as follows:the respondent herein filed a complaint under section 200 of the cr. p.c. against the petitioners for the alleged offence punishable under section 138 of negotiable instruments act on the allegation that in the business transactions, the petitioners were due certain amount and the second petitioner issued a cheque on behalf of the first petitioner-company bearing no. 885572, dated 12-11-1999 drawn on united western bank limited, hubli for a sum of rs. 6,29,369/-. when the respondent presented the cheque for realisation to the vysya bank, gadag branch, it was reported on 27-11-1999 with an endorsement 'insufficient funds'. on information being received on 29-12-1999, the respondent issued a notice on 11-1-2000 which was replied by the second petitioner on 31-1-2000. however, notice issued to the 3rd petitioner was not claimed. even after the expiry of the statutory period since the petitioners have failed to pay the amount, the complaint came to be lodged. the learned magistrate has taken cognizance of the offence and registered a case in c.c. no. 318 of 2000 and issued process to the petitioners. the petitioners questioned the said order before the learned sessions judge, gadag in cri. r.p. no. 105 of 2000. by order dated 25-6-2001, the learned sessions judge dismissed the revision petition. hence, the petitioners approached this court under section 482 of the cr. p.c.3. the petitioner questioned the order passed by the court on three counts. firstly, the complaint was not presented by the complainant but the same was presented by the advocate in the absence of the complainant, therefore, the very receipt of the complaint itself is invalid and the entire proceedings is liable to be quashed. secondly, he submitted that accused 3 is merely a director and his presence as an accused person is unnecessary and therefore, the complaint is liable to be quashed insofar as accused 3 is concerned. thirdly, he submitted that from the perusal of the complaint no cause of action is stated, therefore the same is liable to be quashed.4. however, the learned counsel appearing for the respondent fully supported the impugned order. coming to the first point that whether the complaint presented by the advocate is valid or whether it is liable to be quashed, the learned counsel has drawn my attention to the judgment of the calcutta high court in abhoyeswari v kishori mohan, air 1914 cal. 479, wherein it is held that the words 'at once' in section 200 of the cr. p.c. indicate that ordinarily a complaint must be presented in person. a complaint should never be accepted which is not signed by the complainant and is not preferred by a person duly authorised to prefer that specific complaint.5. the learned counsel for the respondent, on the other hand submitted that the words 'at once' have been deleted in 1973 of the cr. p.c. as amended in 1973 which clearly shows that the complaint presented by the advocate would be due compliance required by section 200 of the cr. p.c. while emphasizing his argument, he has also drawn my attention to the judgment rendered by the kerala high court in rajan george v state of kerala, 1999 (1) crimes 519 (ker.), wherein the kerala high court has held that the court was not disabled from taking cognizance of the offence when complaint was filed by a pieader in absence of a complainant. the court could have not been in a position to take cognizance only on the day complaint was presented.6. allahabad high court in a judgment between baldev das v state, 1952 cri. lj. 1711 (all.), held that the complainant should have either personally presented the complaint before the city magistrate or should have engaged a lawyer to perform the duty of presenting the complaint in person.7. further, in 1985 cri. l.j. noc item no. 73 (punj. and har.), page 32, punjab and haryana high court has held that presence of complainant, not always essential.8. c.ujarat high court in anil g. shah v i.j. chittaranjan company, 1998 cri. lj. : 3870 (guj.) held that dishonour of cheque in regard to complaint need not be lodged by payee personally, complaint filed by power of attorney of payee is legal, hamsa v ibhrahim ruby leather exports v k. venu, 1994(1) crimes 395 1994(1) crimes 820 (mad.) also of the same view.9. at this stage, the learned counsel for the respondent submitted that the advocate acts as an agent by filing the vakalath. in this case, admittedly, vakalath was filed by the advocate when he presented the complaint. therefore, the complaint presented by the advocate is not a bar; on the other hand it is a proper presentation of the complaint. the court also has not rejected the same; on the other hand, he had received the complaint and posted the case for recording the sworn statement of the complainant. that means to say that on that date itself he has taken cognizance of the offence.10. in addition to that the division bench of madhya pradesh high court in state of madhya pradesh v s.p. mathur, 1970 cri. l.j. 922 (mp), held that it would not be proper to dismiss the complaint sent by post on the ground that it was not validly presented. that means to say even when the complaint is sent through post, the same can be received by the court and the court can act on it. therefore, the first contention of the petitioner that it is improper presentation of the complaint and the same is liable to be quashed on that ground itself is unsustainable.11. it is no doubt true that the first petitioner is a company wherein the second and third petitioners are the managing director and director respectively. needless to say that unless there is specific allegation, all the directors need not be arrayed as accused persons. in support of that argument, learned counsel placed reliance on a decision of this court in smt. deveemmma and ors. v shivalingappa, 2002(2) kar. l.j. 248 : ilr 2002 kar. 1026, wherein it is held that proceedings cannot be quashed because the question that has to be examined is whether directors are also responsible to repay the loan and that is purely a matter of evidence.12. it is necessary to refer to the complaint to find out as to whether any allegation made against the third petitioner to hold that he is also a necessary party in this proceedings. the learned counsel has drawn my attention to the allegations contained in para 2 wherein it is specifically stated that accused 2 and 3 approached the complainant and requested to make financial help and by taking into consideration the business of accused 1, the complainant made financial help at the first instance in the year 1995-96 to accused 1-company. in para 4 also, it is mentioned that thereafter only accused 2 and 3 managed the affairs of the company. in para 5 it is also stated that accused 2 and 3 went on promising to pay back the credit outstanding in the name of accused 1-company and ultimately, accused 2 issued a cheque on behalf of the first petitioner with the knowledge of the third petitioner bearing no. 855572, dated 12-11-1999. that cheque was dishonoured. the complainant had issued notice to accused 2 and 3 on 11-1-2000. the accused 3 did not claim the notice and he had also not sent any reply. the accused 3-ra-mesh gandhi is the third petitioner in this case. therefore, prima facie there are materials to show the involvement of the third petitioner in this transaction. at this stage it cannot be said that arraying him as an accused person is improper or illegal. therefore, this argument is also unsustainable.13. the learned counsel appearing for the petitioners however, submitted that from the perusal of the complaint, the cause of action is not mentioned and on that count also the complaint is liable to be quashed. this argument though appears to be reasonable, if reference is made to the sworn statement, it is clear that the complainant has specifically stated that the second petitioner admittedly sent a reply on 2-2-2000 but he has not paid the amount. further all the documents viz., cheque, notice, reply notice, etc., on which the respondent has relied on have been made available before the court, therefore, there cannot be any difficulty for the court to find out as to when cause of action arose in this case. this is a technical ground raised by the petitioners which can be clarified or established by the parties only at the trial and it is a settled law that the complaint cannot be dismissed on technical ground. therefore, it is too early for any court to hold that the complaint does not have cause of action; on the other hand, it can be clarified undisputedly by the parties at the time of trial. in a decision in k. bhaskaran v sankaran vaidhyan balan, it is held that strict interpretation would give handle to the trickster drawer of the cheque. therefore, prima facie it is clear that the impugned order does not call for interference.14. therefore, viewed from any angle, i do not find any merit in this petition. accordingly, the petition is dismissed. however, liberty is reserved to both the parties to raise all these contentions at the trial.

Judgment:
ORDER

M.P. Chinnappa, J.

1. Heard Sri K. Appa Rao, the learned Counsel appearing for the petitioners and Sri C.H. Jadhav, learned Counsel appearing for the respondent.

2. The facts of the case may be summarised as follows:

The respondent herein filed a complaint under Section 200 of the Cr. P.C. against the petitioners for the alleged offence punishable under Section 138 of Negotiable Instruments Act on the allegation that in the business transactions, the petitioners were due certain amount and the second petitioner issued a cheque on behalf of the first petitioner-company bearing No. 885572, dated 12-11-1999 drawn on United Western Bank Limited, Hubli for a sum of Rs. 6,29,369/-. When the respondent presented the cheque for realisation to the Vysya Bank, Gadag Branch, it was reported on 27-11-1999 with an endorsement 'insufficient funds'. On information being received on 29-12-1999, the respondent issued a notice on 11-1-2000 which was replied by the second petitioner on 31-1-2000. However, notice issued to the 3rd petitioner was not claimed. Even after the expiry of the statutory period since the petitioners have failed to pay the amount, the complaint came to be lodged. The learned Magistrate has taken cognizance of the offence and registered a case in C.C. No. 318 of 2000 and issued process to the petitioners. The petitioners questioned the said order before the learned Sessions Judge, Gadag in Cri. R.P. No. 105 of 2000. By order dated 25-6-2001, the learned Sessions Judge dismissed the revision petition. Hence, the petitioners approached this Court under Section 482 of the Cr. P.C.

3. The petitioner questioned the order passed by the Court on three counts. Firstly, the complaint was not presented by the complainant but the same was presented by the Advocate in the absence of the complainant, therefore, the very receipt of the complaint itself is invalid and the entire proceedings is liable to be quashed. Secondly, he submitted that accused 3 is merely a Director and his presence as an accused person is unnecessary and therefore, the complaint is liable to be quashed insofar as accused 3 is concerned. Thirdly, he submitted that from the perusal of the complaint no cause of action is stated, therefore the same is liable to be quashed.

4. However, the learned Counsel appearing for the respondent fully supported the impugned order. Coming to the first point that whether the complaint presented by the Advocate is valid or whether it is liable to be quashed, the learned Counsel has drawn my attention to the judgment of the Calcutta High Court in Abhoyeswari v Kishori Mohan, AIR 1914 Cal. 479, wherein it is held that the words 'At once' in Section 200 of the Cr. P.C. indicate that ordinarily a complaint must be presented in person. A complaint should never be accepted which is not signed by the complainant and is not preferred by a person duly authorised to prefer that specific complaint.

5. The learned Counsel for the respondent, on the other hand submitted that the words 'at once' have been deleted in 1973 of the Cr. P.C. as amended in 1973 which clearly shows that the complaint presented by the Advocate would be due compliance required by Section 200 of the Cr. P.C. While emphasizing his argument, he has also drawn my attention to the judgment rendered by the Kerala High Court in Rajan George v State of Kerala, 1999 (1) Crimes 519 (Ker.), wherein the Kerala High Court has held that the Court was not disabled from taking cognizance of the offence when complaint was filed by a Pieader in absence of a complainant. The Court could have not been in a position to take cognizance only on the day complaint was presented.

6. Allahabad High Court in a judgment between Baldev Das v State, 1952 Cri. LJ. 1711 (All.), held that the complainant should have either personally presented the complaint before the City Magistrate or should have engaged a lawyer to perform the duty of presenting the complaint in person.

7. Further, in 1985 Cri. L.J. NOC Item No. 73 (Punj. and Har.), page 32, Punjab and Haryana High Court has held that presence of complainant, not always essential.

8. C.ujarat High Court in Anil G. Shah v I.J. Chittaranjan Company, 1998 Cri. LJ. : 3870 (Guj.) held that dishonour of cheque in regard to complaint need not be lodged by payee personally, complaint filed by power of attorney of payee is legal, Hamsa v Ibhrahim Ruby Leather Exports v K. Venu, 1994(1) Crimes 395 1994(1) Crimes 820 (Mad.) also of the same view.

9. At this stage, the learned Counsel for the respondent submitted that the Advocate acts as an agent by filing the vakalath. In this case, admittedly, vakalath was filed by the Advocate when he presented the complaint. Therefore, the complaint presented by the Advocate is not a bar; on the other hand it is a proper presentation of the complaint. The Court also has not rejected the same; on the other hand, he had received the complaint and posted the case for recording the sworn statement of the complainant. That means to say that on that date itself he has taken cognizance of the offence.

10. In addition to that the Division Bench of Madhya Pradesh High Court in State of Madhya Pradesh v S.P. Mathur, 1970 Cri. L.J. 922 (MP), held that it would not be proper to dismiss the complaint sent by post on the ground that it was not validly presented. That means to say even when the complaint is sent through post, the same can be received by the Court and the Court can act on it. Therefore, the first contention of the petitioner that it is improper presentation of the complaint and the same is liable to be quashed on that ground itself is unsustainable.

11. It is no doubt true that the first petitioner is a company wherein the second and third petitioners are the Managing Director and Director respectively. Needless to say that unless there is specific allegation, all the Directors need not be arrayed as accused persons. In support of that argument, learned Counsel placed reliance on a decision of this Court in Smt. Deveemmma and Ors. v Shivalingappa, 2002(2) Kar. L.J. 248 : ILR 2002 Kar. 1026, wherein it is held that proceedings cannot be quashed because the question that has to be examined is whether Directors are also responsible to repay the loan and that is purely a matter of evidence.

12. It is necessary to refer to the complaint to find out as to whether any allegation made against the third petitioner to hold that he is also a necessary party in this proceedings. The learned Counsel has drawn my attention to the allegations contained in para 2 wherein it is specifically stated that accused 2 and 3 approached the complainant and requested to make financial help and by taking into consideration the business of accused 1, the complainant made financial help at the first instance in the year 1995-96 to accused 1-company. In para 4 also, it is mentioned that thereafter only accused 2 and 3 managed the affairs of the Company. In para 5 it is also stated that accused 2 and 3 went on promising to pay back the credit outstanding in the name of accused 1-company and ultimately, accused 2 issued a cheque on behalf of the first petitioner with the knowledge of the third petitioner bearing No. 855572, dated 12-11-1999. That cheque was dishonoured. The complainant had issued notice to accused 2 and 3 on 11-1-2000. The accused 3 did not claim the notice and he had also not sent any reply. The accused 3-Ra-mesh Gandhi is the third petitioner in this case. Therefore, prima facie there are materials to show the involvement of the third petitioner in this transaction. At this stage it cannot be said that arraying him as an accused person is improper or illegal. Therefore, this argument is also unsustainable.

13. The learned Counsel appearing for the petitioners however, submitted that from the perusal of the complaint, the cause of action is not mentioned and on that count also the complaint is liable to be quashed. This argument though appears to be reasonable, if reference is made to the sworn statement, it is clear that the complainant has specifically stated that the second petitioner admittedly sent a reply on 2-2-2000 but he has not paid the amount. Further all the documents viz., cheque, notice, reply notice, etc., on which the respondent has relied on have been made available before the Court, therefore, there cannot be any difficulty for the Court to find out as to when cause of action arose in this case. This is a technical ground raised by the petitioners which can be clarified or established by the parties only at the trial and it is a settled law that the complaint cannot be dismissed on technical ground. Therefore, it is too early for any Court to hold that the complaint does not have cause of action; on the other hand, it can be clarified undisputedly by the parties at the time of trial. In a decision in K. Bhaskaran v Sankaran Vaidhyan Balan, it is held that strict interpretation would give handle to the trickster drawer of the cheque. Therefore, prima facie it is clear that the impugned order does not call for interference.

14. Therefore, viewed from any angle, I do not find any merit in this petition. Accordingly, the petition is dismissed. However, liberty is reserved to both the parties to raise all these contentions at the trial.