K.P.V. Textiles and anr. Vs. Malook Chand Naresh Chand - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the cheque was submitted by the complainant-company for encashing the same through its banker at sirsa, but this cheque could not be cleared and encashed and was returned unpaid and unsatisfied. shimpi, air 1961 sc 1494). departure from this principle is permitted if the object and scheme of the statute would be defeated otherwise (vide chief inspector of mines v. kumaresan's case [1992] 74 comp cas 848 (ker) that the words in the relevant provisions of the act are not so ambiguous as to afford scope for an interpretation which leads to the disastrous consequences cited above. giridharilal rathi [1992] 73 comp cas 421 (ap), relied upon by the complainant-company, the main question involved was whether the accused had to pay the money to the complainant and whether hehad issued the cheque as well as all other questions of fact had to be established on evidence. the aforecited authority in ramanujachari's case [1992] 73 comp cas 421 (ap) is not applicable to the facts of the case in hand and is clearly distinguishable. 12. for the foregoing reasons, the complaint as well as the consequent proceedings taken thereunder against the accused-petitioners are hereby quashed and this petition is accordingly allowed.s.s. grewal, j. 1. this petition under section 482 of the code of criminal procedure, 1973 (hereinafter referred to as 'the code'), relates to quashment of complaint, annexure p-1, under section 138 read with section 141 of the negotiable instruments act, 1881, as amended by act no. 66 of 1988 (hereinafter referred to as 'the act'), and consequential proceedings taken thereunder pending in the court of the chief judicial magistrate, sirsa.2. in brief, the facts relevant for the disposal of this petition as emerge from the complaint, are that the complainant-company is engaged in its legitimate and lawful activities at sirsa and at other places within india, and enjoys great goodwill and high reputation amongst men of similar trade and other persons. the accused-company through its partner, accused no. 2, purchased goods from the complainant-company on credit basis and in this regard huge sums accumulated towards the price and the other expenses concerning the goods which the accused are liable to pay to the complainant-company factually and legally. it was further alleged that a number of cheques were issued by the accused-company in favour of the complainant-company as payment of the price of goods supplied and one such cheque bearing no. qlk 374956, dated july 20, 1990, in the sum of rupees one lakh was issued by accused no. 2 on behalf of the accused-company. the said cheque was drawn on the punjab national bank, coimbatore. the cheque was submitted by the complainant-company for encashing the same through its banker at sirsa, but this cheque could not be cleared and encashed and was returned unpaid and unsatisfied. the matter was brought to the notice of the accused telegraphically and it was followed by a legal notice dated september 11, 1990, sent by shri rajesh sethi, advocate, sirsa, on behalf of the complainant-concern. the accused-company in its reply dated september 30, 1990, through its counsel informed about the bouncing of the cheque and also its non-encashment due to non-availability of accused no. 2 in the town and consequent non-arrangement of the funds in the bank account. thereafter, long discussions commenced between the complainant and the accused-company and the latter unequivocally promised and agreed to the complainant-concern for sending the aforesaid cheque again for clearance through their banker at sirsa in the second week of january, 1991, at any time. the complainant-firm re-submitted the said cheque to their banker at sirsa, i.e., the state bank of india, sirsa, on february 9, 1991, but the same was again returned uncashed by the banker of the accused-company with a letter dated january 12, 1991, wherein the reason for uncashing of the cheque was given as 'exceeds arrangements'. the banker of the complainant-concern forwarded the bounced cheque along with the cheque-return memo dated february 1, 1991. then, the complainant-concern gave a legal registered notice dated february 11, 1991, under section 138(b) of the act through shri s.s. goyal, advocate, sirsa. the accused-firm did not make the payment as demanded under the legal notice. it is further alleged that the aforesaid cheque bounced on january 12, 1991, on account of gross negligence on the part of the accused-firm, who had not cared to rectify their defect despite full knowledge. it was next pleaded that the period for making the payment under section 138(c) of the act had also expired and the accused in their reply dated february 23, 1991, to the aforesaid legal notice pleaded that they are trying to get rid of their criminal liability which otherwise may be fastened upon them on account of bouncing and dishonouring of the cheques. it was next pleaded that the accused who were in charge of and responsible for the functioning of the company have made themselves liable for punishment under section 138 read with section 141 of the act.3. learned counsel for the parties were heard.4. the objection raised on behalf of the complainant-company that alternative remedy by way of revision is available, or that the accused moved an application before the chief judicial magistrate that the complaint be dismissed and on this score no petition under section 482 of the code is maintainable is without any merit, in view of the authority of the apex court in state of bihar v. murad ali khan, air 1989 sc 1, wherein it was held that when the high court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the magistrate taking cognizance of an offence the high court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the court or not.5. the cheque dated july 20, 1990, issued by accused-petitioner no. 2 on behalf of the accused-company could not be encashed when the same was presented for encashment by the complainant-company through its banker, the state bank of india. sirsa branch and the same was returned with the remarks 'exceeds arrangements' by the banker of the accused. intimation in respect thereof was sent to the complainant-company from its own banker. admittedly, no complaint was filed by the complainant-company after it received intimation about the bouncing of the aforesaid cheque. the allegation that the accused committed an offence under section 138 read with section 141 of the act relates only to the bouncing of the cheque when it was presented by the complainant-company for the second time for encashment on february 9, 1991, to its banker at sirsa and the same could not be got cleared and instead was dishonoured and bounced again. on this basis, it was rightly contended on behalf of the accused-petitioners that' the complainant-company cannot have a second cause of action on the same cheque as no complaint was filed when the cheque in question bounced for the first time constituting the first cause of action.6. reliance on behalf of the accused-petitioners was rightly placed on a division bench authority of the kerala high court in n.c. kumaresan v. ameerappa [1992] 74 comp cas 848, wherein it was observed as follows (at page 851) :'from the scheme of the provisions in chapter xvii of the act two features loom large : the first is that more than one cause of action on the same cheque is not contemplated or envisaged. the second is, institution of prosecution cannot be made after one month of the cause of action. if more than one cause of action on the same cheque can be created, the consequence would be that the same drawer of the cheque can be prosecuted and even convicted again and again on the strength of the same cheque. the legislature cannot be imputed with the intention to subject a drawer of a cheque to repeated prosecutions and convictions on the strength of one cheque.'7. the contrary view expressed by balakrishnan j. in mahadevan sunil kumar v. bhadran [1992] 74 comp cas 805 (ker), was not regarded as the correct view by the division bench in n.c. kumaresan's case [1992] 74 comp cas 848 (ker) with the following observations (at p. 852) ;'even if such a view is possible, it is one of the settled principles of interpretation of statutes that when two interpretations are possible of a penal provision, only that which is less onerous to the accused should be preferred (vide maxwell on the interpretation of statutes, 12th edition, page 239) : 'the principle applied in construing a penal act is that if, in construing the relevant provisions, there appears any reasonable doubt or ambiguity, it will be resolved in favour of the person who would be liable to the penalty. the learned author quoted lord esher mr. from the decision in tuck and sons v. priester [1887] 19 qb 629, 638 thus : 'if there are two reasonable constructions we must give the more lenient one. that is the settled rule for the construction of a penal section.' the supreme court had adopted the same principle for interpretation on penal statutes (vide m. v. joshi v. m. u. shimpi, air 1961 sc 1494). departure from this principle is permitted if the object and scheme of the statute would be defeated otherwise (vide chief inspector of mines v. karam chand thaper, air 1961 sc 838 and maharaja booh depot v. state of gujarat, air 1979 sc 180).'8. while dealing with this aspect of the case, it was further observed in n. c. kumaresan's case [1992] 74 comp cas 848 (ker) that the words in the relevant provisions of the act are not so ambiguous as to afford scope for an interpretation which leads to the disastrous consequences cited above. we have already indicated the possibility of such consequences ensuing if more causes of action than one are permitted to arise in respect of the same cheque.9. in the authority of the andhra pradesh high court in p.t.v. ramanujachari v. giridharilal rathi [1992] 73 comp cas 421 (ap), relied upon by the complainant-company, the main question involved was whether the accused had to pay the money to the complainant and whether hehad issued the cheque as well as all other questions of fact had to be established on evidence. in view of the peculiar circumstances of the aforecited authority, it was observed that it was for the complainant to establish the various allegations through evidence. the facts of the case in hand are entirely different where admittedly the accused had issued the cheque in favour of the complainant which could not be encashed even though the same was pfesented twice for encashment by the complainant-company. the aforecited authority in ramanujachari's case [1992] 73 comp cas 421 (ap) is not applicable to the facts of the case in hand and is clearly distinguishable.10. the argument advanced on behalf of the complainant-company that the accused in their reply dated september 30, 1990, mentioned that the aforesaid cheque could not be encashed because of non-availability of accused no. 2 in the town and consequent non-arrangement of funds in the bank account would not help the case of the complainant. there is no specific mention in the aforesaid reply dated september 30, 1990, that the cheque was dishonoured because of non-arrangement of funds. rather, it is specifically mentioned in the reply dated september 30, 1990, that the complainant-company was asked to retain the cheque for some time but the said company presented the cheque for collection all of a sudden. it is thus quite apparent that at no stage before the institution of the present complaint, the accused-petitioners had in writing requested the complainant-company to represent the cheque which had already been dishonoured, or gave any assurance that in case any such cheque is represented the same would be encashed.11. from the above discussion, it is quite obvious that the allegations set out in the complaint do not in law constitute or spell out any offence in respect of which the present complaint has been filed. thus, continuation of the proceedings on the aforesaid complaint would amount to abuse of the process of the court.12. for the foregoing reasons, the complaint as well as the consequent proceedings taken thereunder against the accused-petitioners are hereby quashed and this petition is accordingly allowed.