TMI Blog2010 (8) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.1998, which was returned unpaid on 15.10.1998. Demand notice was tendered on 28.10.1998 and was returned as unclaimed on 5.11.1998. Another copy of the notice was sent under Postal Certificate, which was not returned, and hence, complaint was filed on 15.12.1998. After recording verification of the complainant, learned Magistrate had issued process. 3. The revision application was argued and heard on several occasions and written submissions have also been filed by learned counsel for the parties. After the petition being entertained in the year 2003 and being admitted and the accused being released on bail in January 2004, it was supposed to be heard on 12.2.2004. However, hearing was adjourned from time to time. At one stage, order dated 12.3.2007, as under, had to be made by this Court. 1. Even as the applications were partly heard on 09.3.2007 and the hearing resumed today, learned counsel Mr.J.R.Dave along with learned advocate Mr.T.V.Shah argued practically for the whole day on behalf of the applicants. Upon conclusion of their arguments for the applicants and calling upon the learned counsel for the respondent, original complainants, it was stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdles, it would not be reasonable to remand the matter for re-trial. Therefore, the appellate Court took into consideration the documentary evidence, which was already exhibited, as also statement of the accused himself and found that cheques were given in discharge of debt or liability of accused persons. The accused raised plea of limitation on the basis that he was served demand notice on 29.10.1998 and counting the period of 15 days from that date the complaint filed on 15.12.1998 was time barred. However, the Court relied upon endorsement of unclaimed on 3.11.1998 and receipt of the returned notice on 5.11.1998 to hold that the complaint was filed within time. 4.1 The accused had also raised plea of necessity of referring the cheque in question for opinion of hand writing expert, the application for which was rejected by learned Magistrate and Criminal Revision Application arising therefrom was also rejected. It was found by the appellate Court that the accused himself having admitted his signature on the cheque in his further statement, opinion of hand writing expert was otherwise also unnecessary. The plea of the accused about absence of consideration or legal du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said to have been proved, if the oral evidence in that regard were discarded. He also argued that joint purshis filed by the parties could not cure illegality or material irregularity in the face of express provision of Sub-section (3) of Section 326. He also argued that material particulars on the basis of which conviction was recorded were not put before the accused persons under Section 313 of the Criminal Procedure Code and the order of conviction and sentence passed by the Magistrate was illegal in view of provisions of Section 273, as the accused and his advocate were not present at the time of pronouncement of judgment. 7. As against above arguments for the accused, it was submitted for the original complainant, by learned counsel Mr.T.S.Nanavati, that the accused had consistently attempted to delay and defeat justice by seeking repeated adjournments and the trial was practically conducted as in a summons case. As for the alleged violation of Section 200 of Criminal Procedure Code, it was submitted that the Magistrate could take cognizance initially under Section 190 of Criminal Procedure Code and the Magistrate was required to examine the complainant and witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused appears to have applied for bail on the same date without remaining personally present or being taken into custody. Thus, the accused persons appear from the record to have taken all the opportunities for delaying trial and waived all the opportunities to lead any evidence in defence and to further cross-examine witnesses of the complainant despite an application in that regard being granted by the Court by order dated 2.2.2002, even after the stage of final arguments. 9. The following judgments and relevant observations made therein were discussed at the bar in support of respective submissions: a. State of Madhya Pradesh v. Bhooraji and others [AIR 2001 SC 3372]: 12. Section 465 of the Code falls within Chapter XXXV under the caption, Irregular Proceedings . The chapter consists of seven sections starting with S.460 containing a catalogue or irregularities which the legislature thought not enough to axe down concluded proceedings in trials or enquiries. Sections 461 of the Code contains another catalogue (of) irregularities which (in) the legislative perception would render the entire proceedings null and void. It is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cheque which covers an amount exceeding ₹ 5,000/- the Court has power to award compensation to be paid to the complainant. 32. The question of sentence and award of compensation must be considered by the trial Court. We deem it feasible that the magistrate shall hear the prosecution and the accused on those aspects. Of course, if the complainant and accused settle their disputes regarding this cheque, in the meanwhile, that fact can certainly be taken into consideration in determining the extent or quantum of sentence. c. In Patel Dinneshkumar Shivram Somdas v. Patel Keshavlal Mohanlal [2000 Cri.L.J. 3547], Full Bench of this Court held as under: 8. ......Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires.... d. Ghanshyam M.Swami v. M/s.Classic Steel Products [1991 (2) G.L.H.121]: 11. It is quite clear that one month's period referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there are sufficient grounds for proceeding, he can straightway issue process to the accused but before he does so, he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. 3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the equiry ordered is not satisfied that there are sufficient grounds for proceeding, he can dismiss the complaint. 4. Where Magistrate orders investigation by the police before taking cognizance under S.156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described above. g. Harihara Iyer v. State of Kerala [2000 DCR 461]: 12. It is undisputed that the taking of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra, (1976) 1 SCC 438: (AIR 1976 SC 557) this Court held thus : The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him. 144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed different punishment after hearing him. The contention that the complaint was barred by limitation is equally devoid of merit insofar as the notice under section 138 was not accepted by the accused till 05.11.1998, though presented, and the complaint was filed on 15.12.1998, which was within 30 days of the accused failing to pay within 15 days of the constructive receipt of the notice. If the accused had the opportunity to receive and accept the notice till 05.11.1998 when it was returned as unclaimed, the date for counting the period of 15 days has to be that date because within that period he had the option to pay and avoid the completion of the offence under section 138 of the Act. 11. Under the above circumstances, none of the alleged irregularities are found to be vitiating the proceedings before the learned magistrate, under the provisions of section 461 of the Cr.P.C. Having regard to the provisions of section 465 of the Code, none of the alleged irregularities have occasioned a failure of justice; but there is palpable injustice in the matter of sentence which appears to have been constricted by limitation on the powers of the magistrate in that regard. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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