whether cognizance deserves to be taken on the protest petition or otherwise?

reported/published in http://judis.nic.in/judis_andhra/filename=9826

HON'BLE SRI JUSTICE K.G.SHANKAR    

Criminal Revision Case No.2456 of 2012

22-4-2013    

Donthy Reddy Achyuta Reddy

The State of A.P., Through P.P., High Court of A.P., Hyderabad; and another

Counsel for the petitioner: Sri L.T.Rajagopal
                                             
Counsel for respondent No.1: Public Prosecutor
Counsel for respondent No.2: Party-in-person
     
<Gist :

>Head Note:

? Case referred:
1. AIR 1970 SC 962

Judgment:    

        The sole accused in C.C.No.490 of 2012 on the file of the XVII Additional
Chief Metropolitan Magistrate, Hyderabad, filed the revision questioning the
order of the Court dated 10-7-2012 taking cognizance of the case on the protest
petition filed by the 2nd respondent herein.  The 2nd respondent filed a private
complaint before the XVII Additional Chief Metropolitan Magistrate, Hyderabad,
against the petitioner.  The learned XVII Additional Chief Metropolitan
Magistrate referred the same to Musheerabad Police under Section 156(3) Cr.P.C.
Consequently, the Police registered the complaint as First Information Report in
Crime No.363 of 2010 under Section 420 I.P.C.  After due investigation, the
Police submitted a final report that the case was civil in nature and that the
complaint therefore was referred.  Aggrieved by the same, the 2nd respondent
filed a protest petition before the XVII Additional Chief Metropolitan
Magistrate.  After recording the sworn statement of the 2nd respondent, the
learned XVII Additional Chief Metropolitan Magistrate took the case on file on
10-7-2012.  Aggrieved by the same, the present revision is laid.

2. While the petitioner is represented by a counsel, the husband of the 2nd
respondent tried to represent the 2nd respondent.  As the husband of the 2nd
respondent is not an Advocate, I declined to hear him representing the 2nd
respondent.  The 2nd respondent consequently filed written arguments.

3. The point for consideration is 
whether cognizance deserves to be taken on the
protest petition or otherwise?

4. Point:-  The case of the 2nd respondent is that the petitioner fraudulently
induced the 2nd respondent on
10-01-2001 to part with cash of Rs.2,50,000/- to the petitioner as hand loan and
that the petitioner thus cheated the 2nd respondent.  The 2nd respondent further
contended that the petitioner fraudulently issued
a cheque for Rs.2,50,000/- in favour of the
2nd respondent after closing the account and that he thus acted with intentional
dishonesty.  Her case is that the petitioner consequently is liable for
punishment under Section 420 IPC.

5. Sri L.T.Rajagopal, learned counsel for the petitioner, attacked the order of
the trial court on three grounds, viz., (1) the petition is barred by
limitation,
(2) the offence of Section 420 IPC prima facie is not made out and (3) the order
of the trial court is laconic and deserves to be set aside.  The learned counsel
for the petitioner contended that while the offence allegedly occurred on 10-01-
2001, the complaint was lodged
8 years thereafter and that the petition more or less is hopelessly barred by
limitation.

6. On behalf of the 2nd respondent, it was suggested in the written arguments
that there is no period of limitation for lodging a complaint in respect of the
offence of cheating.  Under Section 468(2)(c) Cr.P.C., there is no period of
limitation if the offence alleged is punishable with imprisonment for a period
more than 3 years.
The 2nd respondent cited The Assistant Collector of the Customs, Bombay v. L.R.
Melwani1 in support of her contention.  In that case, the Supreme Court held
that if the delay in filing the complaint has satisfactorily been explained by
the complainant, the delay can be condoned.  The Supreme Court further observed
that the delay per se is not a ground to quash a complaint.  Further, this is a
case where the question of delay did not arise.  Indeed, the complaint was
lodged about 8 years after the petitioner received Rs.2,50,000/- from the
2nd respondent, according to the 2nd respondent.
The delay in filing the complaint is a question of fact and the appreciation of
the filing of the complaint with such
a delay cannot be exercised in a petition under Section 482 Cr.P.C.  It is for
the trial court to decide whether the delay is a ground apart from other grounds
to conclude that the complainant has failed to establish the guilt of the
accused beyond reasonable doubt.  Consequently, the question of delay is not a
valid ground in this petition.

7. The 2nd ground of attack by the learned
counsel for the petitioner is that the offence under Section 420 IPC prima facie
is not made out.  In this context, the learned counsel for the petitioner
submitted that a case was already filed by the 2nd respondent under Section 138
of the Negotiable Instruments Act, 1881
(the Act, for short) and consequently, this petition is not maintainable.  The
cause of action for this petition inter alia is the issuance of a cheque by the
petitioner dishonestly after the petitioner had closed the account, whereas the
cause of action in a petition laid in respect of the offence under Section 138
of the Act would appear to be different.  Added to it, the 2nd respondent also
contended that the petitioner borrowed Rs.2,50,000/- from the 2nd respondent
with dishonest intention at the time of the borrowal itself.  Thus, the 2nd
respondent alleged that the very borrowal was with dishonest
and fraudulent intention.  Such an intention on the part of the petitioner
constitutes the offence under
Section 420 IPC.  Whether the contention is true or otherwise is for the trial
court to decide.  Insofar as the parameters relate to revision, the question is
whether an allegation is made against the petitioner that he cheated the 2nd
respondent and whether the 2nd respondent stated the circumstances in which the
petitioner cheated her.  The 2nd respondent satisfied these circumstances.
Consequently, I am constrained to hold that the
2nd respondent prima facie made out a case triable by the Court.  The 2nd
objection raised by the petitioner consequently is not sustainable.

8. The 3rd contention raised by the learned counsel for the petitioner is that
the order dated 10-7-2012 by the trial court is cryptic and deserves to be set
aside.  Clearly the order is laconic.  It did not contain the reasons for taking
cognizance of the case by the trial court.  Be that as it is, the circumstances
of the case as mentioned already clearly establish that the
2nd respondent made out a prima facie case.  Consequently, the order dated 10-7-
2012 by the trial court is just and reasonable.  It does not require any
interference.  The revision case accordingly is found to be devoid of merits and
is dismissed.
___________________
K.G.SHANKAR, J.
22nd April, 2013.

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