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N.K. Jinnah And Anr. vs Sunil Finance Agencies on 9 April, 2001

Madras High Court Madras High Court N.K. Jinnah And Anr. vs Sunil Finance Agencies on 9 April, 2001 Author: K Karpagavinayagam Bench: M Karpagavinayagam JUDGMENT

K. Karpagavinayagam, J.

1. Is it not so amazing to know that the Courts of Law also have become victims like the complainant at the

hands of the petitioners/accused, in the process of delaying and dragging on the proceedings initiated under Section 138 of the Negotiable Instruments Act by filing petitions after petitions before different forums including this Court suppressing the vital factors as well as the disposal of the earlier petitions by this Court, thereby gained five years?

Yes, this happened in this case

2. Let us now look into the factual matrix involving a chequered history, which is quite disturbing leading to

the filing of these two applications in Crl.O.P. Nos. 12121 and 12122 of 1999 seeking for quashing of the proceedings in two private complaints filed for the offence under Section 138 of the Negotiable Instruments Act by N.K. Jinnah and J. Nizar, the petitioners herein.

3. M. Mohanlal, the Proprietor of Sunil Finance Agencies, the complainant is a finance broker. He arranged

finance from various financiers for the accused/petitioners and their family members. The amount borrowed by the accused through the complainant from the various financiers will be paid back by the accused to the complainant, so that the complainant could distribute the said money to the various financiers. In respect of the amounts due by the accused in account and in respect of several earlier dishonoured cheques issued by the

accused and their family members, on the basis of talks of the settlement, the petitioners, the father and son issued two cheques, one by the father for the amount of Rs. 72,00,000/- dated 14.6.1995 and another by the son for the amount of Rs. 64,65,300/- dated 14.6.1995, in favour of the complainant towards the discharge of entire dues. Both the cheques were presented, but the same were returned dishonoured with the remarks "funds insufficient". Therefore, the complainant issued two different notices to the father and son dated

29.6.1995 to the various addresses of the petitioners but they successfully evaded the service of notice. All the

notices sent to different addresses of the petitioners were returned. On that basis, two complaints were filed by the complainant through his Power of Attorney Agent Sunil Kumar and the same were taken on file on

16.8.1995 in C.C. No. 6784 of 1995 against father Jinnah and C.C. No. 6786 of 1995 against son Nizar.

4. On receipt of summons, both the petitioners filed two separate applications on 29.3.1996 in M.P. No. 1798

of 1996 and 1799 of 1996 in these two complaints praying for discharge. The said discharge petitions were heard by the Trial Court and the same were ultimately dismissed on 4.7.1997 by the Trial Court. Against these orders, both the petitioners filed two separate revisions before this Court in Crl.R.C. Nos. 564 and 565 of 1997 and obtained stay of the proceedings. Ultimately, on 22.9.1997, the said revisions were dismissed by Hon'ble Govindarajan, J.

5. Even after the dismissal by the High Court, both the petitioners filed petitions in M.P. Nos. 675 and 676 of

1998 raising preliminary issue regarding the maintainability of the complaints on 8.4.1998. The Trial Court

again after hearing the Counsel for the parties passed a detailed order dismissing the said petitions on

25.5.1998.

6. Challenging the above order dated 25.5.1998, the petitioners this time filed two revision petitions before the

Sessions Court, Chennai in Crl.R.C. Nos. 93 and 94 of 1998. The Sessions Court also after hearing the parties,

dismissed the said revisions by passing a detailed common order on 21.10.1998.

N.K. Jinnah And Anr. vs Sunil Finance Agencies on 9 April, 2001

7. Being aggrieved over the said order passed by the Sessions Court in the revisions, the petitioners filed two

different applications before this Court on 12.11.1998 in Crl.O.P. Nos. 23069 and 23169 of 1998 under Section 482, Cr.P.C. to set aside the orders passed by the Sessions Court. These applications came up after two years for final disposal before this Court. On 2.11.2000 this Court considered the impugned orders and the submissions made by the Counsel for the parties, dismissed the said applications rejecting all the grounds raised.

8. In the meantime, P.W. 1 was examined on 8.1.1999 and 29.1.1999 in chief before the Trial Court. He was

cross-examined by the Counsel for the petitioners on 28.5.1999 and 12.8.1999. P.W.2, the Bank Manager was examined in chief on 9.4.1999 and he was cross-examined by the Counsel for the petitioners on 28.5.1999. Then, prosecution side was closed.

9. In the meantime, after the commencement of trial and after the cross-examination of P.Ws. 1 and 2 was

over, the petitioners filed these applications in Crl.O.P. Nos. 12121 and 12122 of 1999 before this Court seeking for quashing of the proceedings arising out of the two private complaints in July, 1999 raising the very same grounds.

10. This Court by the order dated 15.3.2000 granted interim stay of the proceedings in these two complaints

on condition that the petitioners shall deposit 50 percent of the cheque amount before the Trial Court within two weeks from the date of the order. However, the said amount was not deposited in the Trial Court.

11. Ultimately, these two applications came up for final disposal on 7.2.2001. When the matter was called, the

Counsel for the petitioners requested for permission to withdraw these petitions. At that stage, this Court was brought to the notice by the Counsel for the respondent/ complainant that the petitioners have earlier filed several petitions before this Court as well as the Sessions Court and the same were dismissed and trial also had already commenced and the prosecution side was over and without showing the same, the order of stay was obtained from this Court and, therefore, the Counsel for the petitioners may not be permitted to withdraw these petitions.

12. On the basis of the said statement made by the Counsel for the respondent, permission for withdrawal was

not granted. The Counsel for the respondent was directed to file a detailed counter relating to the disposal of the earlier petitions and also giving a reply to the grounds mentioned in the petitions and the matter was adjourned to 22.2.2001. Accordingly, on 22.2.2001, the Counsel for the respondent filed a common counter affidavit in both these cases setting out the reply to the grounds and giving the details of the earlier disposal.

13. On going through the counter filed by the respondent, it is crystal clear that the petitioners filed

applications after applications before different forums raising the very same grounds and obtained stay of the proceedings without showing the earlier disposal. It is also seen from the records that the petitioners have come to this Court as a third round of litigation. This fact is not disputed. It is also not disputed that the fact of earlier disposal of the petitions filed by the petitioners raising the similar grounds by rejecting the same and the fact of commencement of trial have been suppressed in the present petitions.

14. Thus, the following four factors would emerge:

"(1) Even though the complaints were filed in August, 1995, the petitioners from the beginning have not been co-operating with the Trial Court for the proceedings to go on. They filed discharge petitions on 29.3.1996 and the same were dismissed by the Trial Court on 4.7.1997 giving detailed reasons for rejecting the points raised. This order was challenged before this Court in two revisions and the same were dismissed by this Court on 22.9.1997. Again raising the same points, the petitioners filed petitions before the Trial Court questioning the maintainability of the complaints on 8.4.1998 and the same were dismissed on 25.5.1998. They filed revisions on 8.6.1998 before the Sessions Court and the same were dismissed on 21.10.1998. Challenging the said order passed in revision, the petitioners filed applications under Section 482, Cr.P.C.

N.K. Jinnah And Anr. vs Sunil Finance Agencies on 9 April, 2001

before this Court on 12.11.1998. Ultimately, this Court dismissed the applications on merits on 2.11.2000. In the second round of litigation, which was disposed of by this Court on 2.11.2000, the petitioners have not mentioned anything about the disposal of the petitions by the Trial Court on 4.7.1997 and the orders passed by this Court on 22.9.1997.

(2) In the present applications, namely third round of litigation, the petitioners never cared to mention either the first round of proceedings or the second "ound of proceedings. On the other hand, the reading of the present petitions would show as if they have come to the High Court challenging the proceedings in question for the first time. Furthermore, the points, which were already dealt with by this Court in the earlier two proceedings, have again been raised before this Court in these two applications. This is, in my view, not only suppression of facts but also amount to trying to cheat or hoodwink the Courts of Law.

(3) As noted above, this Court ordered stay of proceedings on 15.3.2000 in these two applications on

condition that the petitioners shall deposit 50 percent of the cheque amount before the Trial Court within two weeks. Admittedly, this order had not been complied with nor the proceedings were allowed to go on. The irony is, as indicated above, when the matter came up before this Court on 7.2.2001, there was an attempt by the Counsel for the petitioners to withdraw these petitions. Fortunately, the Counsel for the respondent brought to the notice of this Court with regard to the earlier happenings. Since the reason for withdrawal was not bonafide, permission for withdrawal was not granted.

(4) This apart, the trial had commenced and P.W.1 was examined on 8.1.1999, 29.1.1999 and he was cross-examined on 28.5.1999. P.W.2, the Bank Manager also was examined on 9.4.1999 and cross-examined on 28.5.1999. Knowing fully well that P.Ws. 1 and 2 were examined and cross-examined by the Counsel for the petitioners, the petitioners have chosen to file these two applications 'seeking for quashing of the proceedings without mentioning about the progress of the trial. As a matter of fact, the prosecution case was closed. At that stage, these applications have been filed raising several grounds, which were already dealt with by this Court."

15. Thisconduct on the part of the petitioners/contemners would not only injure the other party in the

litigation, but also would cause most mischievous consequence to the administration of criminal justice. This would certainly be termed as an absolute abuse of Court's process.

16. As has been held in Wright v. Bennett, 1948 1 All E.R. 227, taking of successive actions covering the

same ground and litigating over again the same question is clearly an act of abuse of the process of Court.

17. As pointed out by the Apex Court in Chandra Shashi v. Anil Kumar Verma, , the stream of administration

of justice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State.

18. Filing of any petition to stall the judicial proceedings in any Court of law by suppressior of facts exposes

the intention of the party concerned in perverting the course of justice. Anyone, who may be a client or a Counsel, who makes an attempt to impede or undermine or obstruct the free flow of the holy stream of justice by resorting to the filing of these petitions, would cause serious damage to the institution.

19. Under those circumstances, this Court felt that the petitioners have abused the process of Court by filing

applications one after another to stall the proceedings in the Trial Court by misleading the Court and thereby, they interfered with the administration of justice, which would amount to contempt of Court.

20. In the above circumstances, by the order dated 22.2.2001, this Court was constrained to take suo motu

contempt proceedings and issued contempt notice to both the petitioners Directing them to appear before this

Court to give explanation as to why they should not be punished for contempt of Court.

N.K. Jinnah And Anr. vs Sunil Finance Agencies on 9 April, 2001

21. On receipt of the said notice, both the petitioners appeared before this Court on 22.3.2001. The Counsel

for the contemners, who is now a different Counsel, requested time to file affidavits tendering unconditional apology for the act committed by the contemners. This Court adjourned the matter to enable them to file those affidavits seeking for unconditional apology. Accordingly, both of them on 30.3.2001 filed separate affidavits tendering unconditional apology for the act committed by them and further they would 'undertake in the said affidavits that they would co-operate for the expeditious disposal of the criminal complaints in C.C. Nos. 6784 and 6786 of 1995 pending on the file of the X Metropolitan Magistrate. On the basis of the said affidavits, the learned Counsel for the contemners pleaded that the contemners may be discharged by admonishing them. However, this Court felt that since the contempt, which is serious in nature has been committed by the contemners, they should be suitably dealt with by imposing punishment of imprisonment. The maximum punishment under Section 12(2) of the Contempt of Courts Act is six months' imprisonment or Rs. 2,000/- fine. When the contemners were asked about the punishment, they would plead that in lieu of imprisonment, they would prepare to pay some cost or compensation.

22. The history of the case, as narrated above, would reflect about the entire course of conduct adopted by the

contemners, which is only with a view to frustrate and delay indefinitely the trial against the contemners. There is no difficulty to see that the conduct of the contemners mentioned above speaks volumes for the dishonest attitude adopted by the contemners towards the Courts of Law. Where there is a patent dishonesty on the part of the contemners, the law does not require that the Court should sit back with folded hands and fail to take any action in the matter, merely accepting the artificial statement of the contemners tendering unconditional apology.

23. In that view of the matter, it shall be held that the contemners are guilty of misconduct amounting to

contempt. As provided in the penal section, they can be either sent to imprisonment or sentenced to pay a fine. But, as stated above, the contemners pleaded for mercy stating that they would be prepared to pay cost or compensatioh and in that they could be suitably punished.

24. It is true that this Court would recognise the powers of imposing suitable costs in contempt proceedings.

In other words, it is specifically laid down that the power of Court in contempt proceedings is not restricted only to punishing the contemners but also extends to granting of consequential relief, namely compensation. This is laid down in Elgi Finance Limited, Etc. v. Coronation Printing Ink Manufacturing Company, Etc. and Anr., 2000(1) L.W. (Crl.) 350, and Noorali Babul Thanewala v. Sh. K.M.M. Shetty, .

25. In view of the above situation, this Court felt that the petitioners could be directed to pay compensation of

Rs. one lakh each towards the Gujarat Relief Fund. When this Court asked whether they would be prepared to pay the same to the Gujarat Relief Fund, they agreed for the same and they requested for time. Accordingly, they were directed to file an affidavit seeking for time for payment of compensation and the matter was adjourned. On 4.4.2001, both of them filed affidavits seeking for two months' time for making payment of Rs. one lakh each towards the Gujarat Earthquake Relief Fund.

26. In view of the realisation of the act committed by the petitioners, their readiness to pay some

compensation towards the Gujarat Relief Fund for the inconvenience caused to the Court and their promptness

in filing such undertaking affidavit before this Court, instead of directing them to pay one lakh each, within two months, I deem it fit to direct the petitioners to pay Rs. 50,000/- each within one month. Accordingly, both the petitioners are directed to send the total amount of Rs. 1,00,000/- by means of Demand Draft to the Prime Minister's Gujarat Earthquake Relief Fund within one month from today and the copy of the Demand Draft or voucher for the same should be filed before the Trial Court within one month, i.e. on or before

9.5.2001.

27. Even regarding the grounds mentioned in these petitions, in my view, they do not merit consideration.

N.K. Jinnah And Anr. vs Sunil Finance Agencies on 9 April, 2001

28. Regarding the point in respect of service of notice, this Court in Kannan v. Kothandan, 1995 M.L.J. (Crl.)

664, and Karnataka Public Service Commission v. P.S. Ramakrishna, , held that the notice sent to the respondent returned with the endorsement "not present" shall be deemed to have been served.

29. Relating to the question of legally enforceable debt or liability, as held in K. Krishna Bai v. Arti Press, I

(1992) BC 361=1991 L.W. (Crl.) 513 and Devendra Kumar Rai v. Ram Gopal Rai, II (1999) BC 525=11 (1999) CCR 512=1999 Cri.L.J. 1349, the debt is legally enforceable against the person who owed the debt or is under liability, but need not necessarily be a debt or liability of the person, who actually draws the cheque.

30. In regard to the Power of Attorney of the Proprietor or Proprietary concern, it is held in B. Mahendra Jain

v. C.K. Mohammed All, 1997(2) L.W. (Crl.) 637, that the power of attorney agent of the payee, who is an individual or.a Proprietor will be competent to make a complaint in writing, under Section 142(a) of the Negotiable Instruments Act to facilitate the valid cognizance being taken by the Magistrate. Besides that, Section 139 provides that when there is an issuance of cheque in favour of the payee, it must be presumed that the said cheque was issued for the discharge of liability, which is legally enforceable.

31. Under those circumstances, none of the grounds raised in these petitions would deserve acceptance.

Therefore, the petitioners have to necessarily face the trial before the Trial Court.

32. The petitioners have also given undertaking in their affidavits that they will cooperate for the expeditious

disposal of both these complaints by facing the trial without putting any more hurdle to the continuance of the trial. Accordingly, the petitioners are directed to face the trial. The Trial Court also is directed to finish the trial and dispose of the matter within two months from the date of receipt of acopy of this order. It is made clear that any violation of this order would be very seriously viewed.

33. With the above observations, the petitions, namely, Crl.O.P.Nos. 12121 and 12122 of 1999 are dismissed.

Consequently, Crl.M.P. Nos. 5375 and 5376 of 1999 are closed. Suo Motu Contempt Application No. 129 of 2001 is ordered as stated above.