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TMI Blog2007 (10) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... te complaint, lodged by the respondent, under Section 138 of The Negotiable Instruments Act, as regards dishonour of a cheque. 3. While the court fee payable for the complaint was Rs.325/-, at the time of presenting the complaint on 29.09.2003, the complainant paid Rs.100/- only, thereby the complaint was returned by the Judicial Magistrate on 10.10.2003, mentioning, sufficient stamps to be affixed . 4. After complying with the said direction, the complaint was re-presented on 16.10.2003 and, on 20.10.2003, the said complaint was again returned with an endorsement that in the petition, name of the accused, who issued the cheque on behalf of the firm, i.e., fourth accused was not clearly mentioned. When it was re-presented on 23.10.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on either in Cr.P.C. or Criminal Rules of Practice, for return of complaint, for the purpose of affixing proper court fee, after it was presented with deficit court fee and, as such, the complaint should have suffered dismissal at the hands of the Magistrate, for insufficient court fee. 7. Conversely, learned counsel for the respondent would submit that law recognises return of complaint by a Judicial Magistrate, for making good of certain defects, and, returning of complaint, which was presented to the Court in time, and its representation afterwards could, in no way, be construed as extension of statutory period of limitation and the order of returning the complaint was only administrative, which was not at all judicial, so as to preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectively, we have to see, whether they would prejudice the valuable legal rights of the accused. If the answer is positive, the proceedings in C.C.No.104 of 2004 will have to face quashment. 10. It is well settled that an irregularity can at any time be rectified, but the answer will be emphatically NO, in case of illegality and if it occurs in a proceeding, it has to be axed out. 11. Learned counsel for the petitioners cites a Division Bench decision of this Court in A.Vinayagam and three others v. Dr.Subash Chandran and another, 2000 (I) CTC 225, in which it was held that it is the duty of the complainant to produce defectless complaint, which becomes the property of the Court, after Court seal is affixed on it and the Court fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin limitation, merely because the Magistrates, completely contrary to the procedure known to law, chose to return the same without fixing the date for re-presentation, it should not be held that the subsequent filing by the complainants would be held to be beyond limitation. 12. Following the principle laid down in the decision aforementioned, it is to be held that though there was deficit court fee on the date of original presentation of the complaint within the prescribed period of limitation, it could be said to be valid, irrespective of the subsequent returns by the Court. The return of plaint for rectification of certain defects as to court fee and re-presentation by the party after rectification to the Court are the stages in adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent that the grounds, which are portrayed by the petitioners in the present petition, were already available at the time of filing the previous petition and, after a lapse of about one year, the petitioners have come forward with this petition. 15. On 24.06.2005, the trial has commenced. The complainant filed proof affidavit for chief-examination and produced 36 exhibits. After a lapse of over one year i.e., on 02.11.2006, the present petition has been presented before this court, for quashing the proceedings. 16. In this context, learned counsel for the respondent would strenuously argue that after the trial was opened for examination of witnesses, there would be no quashment of the proceedings and, hence, the case ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter. In other words, the case before the trial Court, which is in part-heard stage, can, in no way, be quashed and if any order of quashment is passed, it would be classically improper. Hence, it is not proper for this Court, to exercise the power, conferred under Section 482 Cr.P.C. In the light of the illuminating judicial pronouncements and in view of the circumstances available in this case, no valid ground is made out to interfere with or disturb the proceedings in C.C.No.104 of 2004 on the file of Judicial Magistrate, Sathiamanagalam, and the said case has to come to its logical conclusion. 18. Therefore, this petition is devoid of merits and dismissed. Consequently, the connected Criminal M.P.No.1 of 2006 is also dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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