Landmark Case of Complaint against Judge
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF FEBRUARY, 2008
THE HON’BLE MR. JUSTICE V. JAGANNATHAN
CRIMINAL APPEAL Nos. 910/2007 C/W 919 / 2007
MANIPAL CENTRE APARTMENT
OWNERS ASSOCIATION APPELLANT
(By Sri. M.G. KUMAR LAW FIRM, ADV.)
SRI. S. RAJENDRA BABU RESPONDENT
(By Sri: B. SHIVAMALAPPA, ADV.)
CRL.A No.910/2007 FILED U/S 378 CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT LEAVE TO APPEAL AGAINST THE ACQUITTAL OF THE RESPONDENT AND PLEASED SET ASIDE THE ORDER DT.25.4.2007 IN C.C. NO.27356/2003 PASSED BY THE ACMM & ASCJ, B’LORE CITY.
CRL.A No.909/2007 FILED U/S.378 (4) CR.P.C. BY THE ADV. FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DT.25.4.07 PASSED IN C.C. NO.28590/03 ON THE FILE OF THE XX ACMM & ASCJ, B’LORE CITY – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S. 138 OF N.I. ACT.
THESE APPEALS COMING ON FOR HEARING ON THS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T
- These two appeals are disposed of by this common judgment in view of the trial court dismissing the complaints filed by the appellant herein on the identical grounds of the complaint being not filed within the statutory period and based on the said reasoning the trial court had acquitted the respondent of the offence punishable under Section 138 of Negotiable Instruments Act.
- The facts which are common giving rise to the complaints being filed in the two cases by the appellant are to the effect that an agreement was entered into between the appellant and respondent in respect of collection of parking fee and as per the terms of the parking contract entered into between the parties on 27.6.2001, the contract was awarded to the respondent for a total consideration of rs.13,81,369/- for the period from 1.7.2001 to 30.6.2002 and it was agreed by the parties that proportionate payment has to be made every month by the respondent. Accordingly, it is the case of the appellant that the respondent issued a cheque dated 2.11.2001 for a sum of Rs.1,15,114/- and the said cheque being presented was returned with an endorsement “insufficient funds” on 5.11.2001. The complainant issued a legal notice to the respondent on 12.11.2001 which was received by the respondent on 13.11.2001 and the respondent did not offer any reply to the said legal notice and thereupon the complainant filed the complaint before the trial court under Section 200 of Cr.P.C read with Section 138 of Negotiable Instruments Act on 21.12.2001.
- In respect of another cheque issued on 2.10.2001 for the very same amount of Rs.1,15,114/-, the said cheque was also returned with some endorsement of “insufficient funds” on 18.10.2001 and on 19.10.2001 the complainant issued a notice demanding payment from the respondent and the said notice was received by the respondent on 24.10.2001 and he offered no reply to the said legal notice also. Consequently, the complainant was constrained to file another complaint on 4.12.2001 for punishing the respondent for the offence punishable under Section 138 of N.I. Act.
- Thus Crl.A.No.909/2007 pertains to the case involving issue of cheque dated 2.11.2001 by the respondent and the Crl.A.No.910/2007 is in respect of the cheque issued dated 2.10.2001 both for identical sum of Rs.1,15,114/-. The learned trial judge considered the evidence placed by the parties which was common to both the cases and after taking into account the evidence of Pw-1 and Exs.P1 to P13 on behalf of the complainant and evidence of Dw.1 & 2 in support of the defence taken by the respondent, the trial court acquitted the respondent in both the cases and in coming to the said conclusion. The only factor that led the trial court to acquit the respondent is that it came to the conclusion that the complainant had not compiled with the mandatory requirement of Section 138 of N.I. Act in so far as the complaint being not filed within the statutory period as fixed under Section 138 (o) of the N.I. Act. The trial court did not consider any other aspect of the case, but only on the short ground of the complainant having been not filed within the prescribed time limit, the respondent was acquitted of the offence punishable under Section 138 of N.I. Act. Aggrieved by the aforesaid order of acquittal order passed in favour of respondent in the two cases, the appellant has preferred these two appeals.
- I have heard Sri. M.G.Kumar, learned counsel for the appellant and Sri. B.G. Shivamallappa, learned counsel for the respondent, and carefully perused the entire material on record.
- The learned counsel for the appellant at the outset submitted that there has been some mis-carriage of justice and the appellant has not been able to get justice even after two rounds of litigation in as much as on an earlier occasion, the respondent had been convicted by the trial court vide judgment dated 15.4.2005 and following the appeal preferred by the respondent before the Fast Tract Court, the order of conviction was set aside and the matter was remanded to the trial court for fresh disposal and after the remand, the present Judgment has been passed by the trial court and the learned trial judge has lost sight of the very provision of law contained in Section 138 as well as Section 142 of N.I. Act and the view by the trial court that the complaint ought to have been filed within 15 days of issuing notice to the respondent to make the payment is unheard of and no such requirement is also to be found in Section 138 or 142 of N.I. Act.
- It is his submission that the learned trial judge has deliberately passed impugned judgment which is quite contrary to the Provisions of law as contained in Section 138 and 142 of N.I. Act. The trial court could not have held that the complaint was barred by time and further contended that there has been a deliberate failure on the part of the trial Judge in not following the Provisions of law as contained in the N.I. Act and also the law laid down by the Apex Court and other High Courts in this regard. It is his submission that the appellant has suffered greatly and having regard to the fact that the proceedings under N.I. Act are summary in nature, it is ironical that the complainant has been made to fight for justice even now in the year 2008 when the two Cheque issued by the respondent pertains to the year 2001. Inspite of several years having been elapsed between these two events, the complainant is still to get justice and therefore, the view taken by the trial court in acquitting the accused on erroneous understanding of the provisions of law regarding requirements of notice, therefore, cannot be sustained,
- It is his further submission that being the Presiding Officer of Special Court dealing with the case under the N.I. Act if the trial Judge were to pass the orders as has been passed in the instant case and if the said reasoning of the trial court were to be taken as understanding of the law by the trial Judge, then no cases under the N.I. Act could be filed before the learned trial Judge. Therefore, the matter requires serous consideration and the same will have to be brought to the notice of the Hon’ble Chief Justice for taking necessary action against the erring judicial officer concerned. Therefore, the learned counsel for the appellant submitted that he is left with no other alternative than to file a complaint. Accordingly, the complaint filed be placed before the Hon’ble Chief Justice so that the matter can be dealt separately in an in-house proceedings as has been observed by the Apex Court In the matter of ‘K’ a Judicial Officer, reported in AIR 2001 SC 972.
- Coming to the merits of the two appeals, the submission made by the learned counsel for the appellant is that the impugned judgments of the trial court cannot be sustained on the face of it and, therefore, instead of remanding the matter to the trial court for fresh disposal, having regard to the long lapse of time between the date of issuance of the two Cheques and as of now and also having regard to the proceedings under the N.I. Act being summary in nature, this court, instead of remanding matter, can dispose of the same once and for all having regard to the evidence placed on record by both parties and this would avoid further delay. It is his submission that the respondent-accused issued the two Cheques in question towards his liability as per the terms of the agreement of the parking contract and as the two Cheques were dishonored and further the legal notices issued also being not replied by the respondent, the complaints filed are within time as required under the provisions of Sections 138 and 142 of the N.I. Act and, as such, the appellant has made out a case against the respondent in respect of the commission of the offence punishable under Section 138 of the N.I. Act by the respondent and hence, the impugned orders of acquittal be set aside and the respondent be convicted for having committed the offence in question by allowing the two appeals.
- On the other hand, the learned counsel for the respondent-accused submitted that if this court were to take the view that the judgments of the trial court are not sustainable in law as regards the requirement of notice and lodging of the complaints are concerned, the matters be remanded to the trial court for fresh disposal because, the trial court had acquitted the respondent in both the cases only on the basis of its finding that the complaints were not filed within the statutory period. As there was no discussion of the merits of the case, remand is the only solution. As regards the merits of the case are concerned, the submissions made is that the respondent did not collect the parking fee for the months of October and November 2001 as the contract was terminated by the appellant and, therefore, the question of the respondent becoming liable to pay the amounts mentioned in the two Cheques does not arise.
- Having thus heard the submissions made by the learned counsel for the parties, the following points arise for consideration:
- Whether the appellant has made out a case for the matters being disposed of finally by this court instead of remanding the same to the trial court?
- Whether the orders of acquittal passed by the trial court in the two cases are sustainable in law in view of the reasons assigned by the trial court?
Point No. (i)
- The submission of the appellant’s counsel is that, already the matter had been remanded to the trial court once by the Fast Track Court when the respondent appealed against his conviction and, as of now, more than seven yeas have elapsed since the time of issuance of the two Cheques. As the proceedings under the N.I. Act are of summary nature, it is all the more necessary that the cases under the N.I. Act are disposed of at the earliest keeping in view the above said procedure contemplated. In this connection, reference is also made to Section 143(3) of the N.I. Act and the said clause reads as under:
“143 Power of Court to try cases summarily:-
- Every trial under this section be conducted as expeditiously as possible and an endeavor shall be made to conclude the trial within six months from the date of filing of the complaint.”
- As far as the scope of this court to appreciate the evidence on record independently is concerned, the observations of the Apex Court in the case of Suga Ram @ Chhuga Ram Vs. State of Rajasthan, reported in A.I.R. 2006 S.C. 3258, have to be taken into consideration and the said observations are as under:
“The trial court is required to carefully appraise the entire evidence and then come to a conclusion. If the trial court is at lapse in this regard, the High Court is obliged to undertake such an exercise by entertaining the appeal. If trial court on the facts of the case did not perform its duties, as is enjoined on it by law, the High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, reappreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. By refusal without giving any reasons a close scrutiny of the order of acquittal, by the appellant forum, has been lost once and for all.”
- Therefore, in the light of the aforesaid proposition of law laid down by the Apex Court, I am of the view that the matters can be disposed of on the basis of the evidence on record particularly having regard to the ingredients to be established in order to attract Section 138 of the N.I. Act. Hence, having regard to the facts and circumstances of this case referred to above and the law laid down by the Apex Court in the above mentioned Suga Ram’s case, I am of the view that in order to meet the ends of justice, it is necessary to dispose of the matters without remitting them to the trial court so that the agony of the appellant going through one more round of trial proceedings can be avoided. This view of mine is also fortified by the well known saying that “Justice delayed is justice denied”. Point No. (i) is accordingly answered.
Point No. (ii)
- Coming to the merits of the case, in order to attract an offence punishable under Section 138 of the N.I. Act, the ingredients to be satisfied have been laid down by the Apex Court in the case of Saroj Kumar Poddar Vs. State (NCT of Delhi), reported in (2007) 2 S.C.C (Crl) 135. As paragraph-10 of the judgment, the Apex Court has observed thus:
*10. For creating a criminal liability in terms of the said section, the complainant must show:
(i) that a cheque was issued;
(ii) that same was presented;
(iii) but, it was dishonoured;
(iv) a notice in terms of the said provision was served on the person sought to be made liable, and
- despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.”
16, In the instant case, insofar as Crl.A.No.909/2007 is concerned, it is not in dispute that there was an agreement entered into between the appellant and the respondent as per Ex.P-2 towards parking contract and secondly, the respondent was required to issue Cheque every month in a sum of Rs.1,15,114/- and accordingly, the respondent issued a cheque on 2.11.2001 for the said amount. That the said cheque was returned on 5.11.2001 is also not in dispute as could be seen from the Bank’s endorsement as per Exs.P-4 and P-5. The appellant issued a legal notice dated 12.11.2001 as per Ex.P-6 and the same was received by the respondent on 13.11.2001 as per Ex.P-7 and the postal receipt and acknowledgement in proof of the same is also dated 13.11.2001 as per Ex.P-8 is also not in dispute. The respondent gave no reply to the legal notice issued to him is also a fact which the parties do not dispute. The complaint was filed on 21.12.2001.
17 Section 138(b) of the N.I. Act requires the payee or the holder of the cheque to give a notice to the drawer of the cheque within 30 days of the receipt of the information by him from the Bank (w.e.f.6.2.2003, the period has been mentioned as 30 days in place of 15 days). As far as the cause of action to file the complaint is concerned, Section 142(b) provides that the complaint will have to be made within one month of the date on which the cause of action under Section 138 (c) arises. Thus, a combined reading of the above provisions of the N.I. Act makes it clear that it is only on the failure of the drawee to make the payment within the aforesaid period (30 days w.e.f. 6.2.2003 or 15 days prior to amendment) that the cause of action arises to lodge the complaint within one month from the said date.
- Unfortunately, in the instant case, the trial court has observed that complaint ought to have been filed within 15 days of service of notice to the respondent. The trial court, therefore, committed serious error in not taking note of the requirement of law as far as lodging of the complaint is concerned. Hence, the view taken by the trial court cannot be sustained in the face of the specific provisions as contained in Section 138(b) and (c) read with Section 142(b).
- As far as the liability of the respondent is concerned, the appellant has placed the evidence of P.W.1 and the said evidence has not been seriously challenged in the cross-examination. At the same time, the respondent, examined as D.W.1, has admitted the agreement entered into between him and the complainant and it is his case that he could not collect the amount and, therefore, he was compelled to close the contract on 30.9.2001. He also admits that the complainant sent him a letter stopping further contract and that the said termination letter was handed over to him personally. The complainant has placed the letter before the trial court as per Ex. P-13.
- Having considered the said document Ex.P-13, which is dated 22.11.2001,and the respondent having not replied to the said letter of termination, and further having failed to offer his explanation to the legal notice issued as per Ex.P-6, it is established that the appellant has proved that the respondent was due in a sum of Rs.1,15,114/- in regard to which cheque dated 2.11.2001 was issued and likewise, he was also due in an identical sum of Rs.1,15,114/- in respect of which he issued another cheque dated 2.10.2001.
- Thus, considering the entire evidence on record, I have no hesitation to come to the conclusion that the appellant has proved the essential ingredients of Section 138 of the N.I. Act as required and as having been mentioned by the Apex Court in the case of Saroj Kumar Poddar, supra. As all the ingredients of the offence punishable under Section 138 of the N.I. Act are satisfied and having been established beyond reasonable doubt, the complainant has made out a case for conviction of the respondent for having committed the offence under Section 138 of the N.I. Act. No other view is possible from the entire evidence on record.
- In respect of the cheque issued on 2.10.2001 is concerned, which is the subject matter of Crl.A. No, 910/2007, the evidence placed by the parties are identical except for the dates. The stand taken by the complainant as well as the respondent are also one and the same as has been referred to above in connection with Crl.A.No.909/2007. In the second case, the cheque was issued on 2.10.2001 and it was dishonored on 18.10.2001 and the complainant received the dishonored cheque along with the debit notice on 19.10.2001. Legal notice was issued to the respondent on 22.10.2001 and it was received and acknowledged by the respondent on 24.10.2001. There was no reply offered by the respondent and the complaint was finally lodged on 4.12.2001. Thus, the above facts are not in dispute and, as such, the complaint was lodged within the statutory period as required and the trial court committed the very same mistake in the second case also as it had committed in the earlier case. Therefore, for the very same reasons mentioned above while dealing with Crl.A. No.909/2007, the respondent is liable to be convicted for having committed the offence under Section 138 of the N.I. Act in respect of the cheques issued on 2.10.2001.
- For the aforesaid reasons, the judgments of acquittal passed by the trial court in both the above cases cannot be sustained in law and the respondent is liable to be convicted for having committed the offence punishable under Section 138 of the N.I. Act in respect of the two Cheques issued by him which were dishonoured by the Bank and the respondent also having failed to pay the said amounts despite notices being given to him.
- As far as the complaint that is filed by the learned counsel for the appellant is concerned, the Apex Court, in the matter of ‘K’ a Judicial Officer, reported in A.I.R. 2001 S.C. 972, cautioned the High Courts with regard to making adverse remarks against subordinate judicial officers and the said observations are as under:
“The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied, however, the High Courts have to remember that criticisms and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in open and therefore becomes public. The same Judge who found himself persuaded, sitting on judicial side, to make observations guided by the facts of a single case against a subordinate Judge may, sitting on administrative side and apprised of overall meritorious performance of the subordinate Judge, may irretrievably regret his having made those observations on judicial side the harming effect whereof even he himself cannot remove on administrative side. Thirdly, human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher Court gives the litigating party presence of victory not only over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial authority of the deciding Judge. Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court – a situation not very happy from the point of view of the functioning of the judicial system. May be for the purpose of pleading his cause he has to take the assistance of a legal practitioner and such legal practitioner may be one practicing before him. Look at the embarrassment involved. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be rules out. Such an incident would have a seriously demoralising effect not only on him but also on his colleagues.
There is an alternate safer and advisable course available to choose. The conduct of a judicial officer, unworthy of him, having come to the notice of a Judge of the High Court hearing a matter on the judicial side, the lis may be disposed of by pronouncing upon the merits thereof as found by him but avoiding in the judicial pronouncement criticism of, or observations on the ‘conduct’ of the subordinate judicial officer who had decided the case under scrutiny. Simultaneously but separately in-office proceedings may be drawn up inviting attention of Hon’ble Chief Justice to the facts describing the conduct of the subordinate Judge concerned by sending a confidential letter or note to the Chief Justice. It will thereafter be open to the Chief Justice to deal with the subordinate judicial officer either at his own level or through the inspecting Judge or by placing the matter before the Full Court for its consideration. The action so taken would all be on the administrative side. The subordinate Judge concerned would have an opportunity of clarifying. He would not be condemned unheard and if the decision be adverse to him, it being an administrative side, he would have some remedy available to him under the law. He would not be rendered remediless.”
- In the light of the above observations made by the Apex Court, I am of the view that the complaint that is filed by the learned counsel for the appellant requires to be placed before the Hon’ble Chief Justice and hence, the same will have to be dealt separately.
- Heard the learned counsel for the parties on the question of sentence to be imposed. The submission of the learned counsel for the appellant is that, even on the earlier occasion, the respondent had been convicted but, as there was some defect in the earlier order passed, the matter had to be remitted to the trial court for fresh consideration and as of now, more than seven years have elapsed and hence maximum fine amount be imposed upon the respondent. On the other hand, the learned counsel for the respondent submits that having regard to the facts and circumstances of the case, the court may impose fine as it deems it in the circumstances of the case.
- Having thus heard the submissions of both sides and taking note of the facts and circumstances of this case and the long period that is elapsed, in my view, the ends of justice can be squarely met by imposing fine which will be equal to twice the amount of the Cheques.
- In the result, I pass the following order:
Both the appeals are allowed and the impugned judgments of the trial court in C.C. Nos.28590 and 27356 of 2003 are set aside.
The respondent is convicted for the offence punishable under Section 138 of the N.I. Act in respect of C.C. No.28590/2003 and he is punished with payment of dine, which is equal to twice the amount of the cheque. In default of payment of fine amount within a period of three weeks, he shall undergo rigorous imprisonment for a period of one year.
In respect of the offence punishable under Section 138 of the N.I, Act in regard to which C.C. No.27356/2003 has been filed, the respondent is convicted for the said offence and he is punished with payment of fine, which is equal to twice the amount of the cheque. In default of payment of fine amount within a period of three weeks, he shall undergo rigorous imprisonment for a period of one year.
The default sentence imposed as above shall run consecutively one after the other.
Out of the fine amount imposed upon the respondent separately in the two cases, 10% of the said fine amount in each of the two cases shall be paid to the State Government and the balance shall be paid to the appellant.