VIJAY GANESH GONDHALEKAR Vs. RAMCHANDRA GIRDHARILAL SARDA

JUDGEMENT

(1.) THE applicants seek to quash and set aside the order of issuing process as well as order dated 14-1-1999 passed in Criminal Complaint Case No. 1275 of 1996. The respondent No. 1 had filed a complaint under section 138 of the Negotiable Instruments Act read with sections 403, 406 and 420 of the Indian Penal Code against the present applicants. This complaint was presented to the Court on 22-11-1996 and on the same day complainant was examined under section 200 Cri. P. C. Process was issued against the present applicants under section 138 of the Negotiable Instruments Act vide order dated 6-2-1997. The present applicant No. 1, viz. accused No. 1 filed an application on 1-4-1997 for dismissal of the complaint as the same was not signed by the complainant and as such was not maintainable. This application was disposed of by the trial Court vide order dated 14-1-1999 stating that the learned predecessor had already taken cognizance of the case and process was issued and as such, accused could not raise objection since the Court had already taken cognizance of the matter. The respondent No. 1 had also filed an application for permission to sign the complaint and vakalatnama and this application was also dismissed on the ground that the predecessor had already taken cognizance of the matter and process issued as a result of which application became infructuous.

(2.) LEARNED Advocate appearing on behalf of the applicants urged before me that section 142 of the Negotiable Instruments Act lays down that no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. Thus, according to the learned Advocate for the applicants, written complaint is sine qua non for taking cognizance under section 138 of the Negotiable Instruments Act and a written complaint obviously is required to be signed by the complainant and in the absence of any signature of the complainant on the complaint, the Court could take cognizance and could not have examined the complainant under section 200 Cri. P. C. Therefore, according to learned Advocate for the applicant, the signing of verification statement on the same day would not cure the defect and bar created by section 142 (a) of the Negotiable Instruments Act. Learned Advocate for the appellant relied upon the judgment of the Madras High Court in (M. A. Abdul Khutoos v. M/s. Ganesh and Coy Oil Mills) 1994 (4) All. M. R. 3 in support of his contention that a complaint is required to be signed and the oral examination under section 200 Cri. P. C. would not cure defect in view of section 142 (a) of the Negotiable Instruments Act which requires a complaint to be made in writing.

(3.) LEARNED Advocate for applicants also relied upon three judgments of the Apex Court on the question of bar of taking cognizance. In (State of Maharashtra v. Dr. Budhikota Subbarao) 1993 (3) S. C. C. 339, failure to obtain sanction for prosecution was held to have vitiated the entire proceedings against the accused inasmuch as requirement of obtaining sanction for prosecution was mandatory and the bar of taking cognizance of offence in the absence of sanction was absolute. In (Delhi Development Authority v. Kochhar Construction Work and another) 1998 (8) S. C. C. 559, an unregistered firm had filed application for arbitration under section 20 of the Arbitration Act and by virtue of bar under section 69 (2) of the Partnership Act, it was held that the proceedings were ab initio defective and subsequent registration of the firm done even if before the period of limitation had run out, cannot cure the initial defect. In (State of Kerala v. M. S. Mani and others) 2001 (6) SCALE 258 the consent of Attorney General/solicitor General had not been taken for initiating proceedings. The contempt petition was filed on 17th May, 1999 and it was held that the fact remains that the motion to take action against the respondents under section 15 was not made with the consent of the learned Attorney General or Solicitor General and therefore is incompetent and subsequent obtaining of the consent does not cure the initial defect so as to convert the incompetent motion into a maintainable petition.