Karnataka High Court
Smt. Gouri W/O G. Raju vs Devan Housing Finance on 10 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
R
DATED THIS THE 10 DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRL.RP.No.200005/2014
BETWEEN:
SMT. GOURI W/O G. RAJA
AGE: 52 YEARS, OCC: TEACHER
R/O C/O C.A. SWAMI
SECTOR NO.14, PLOT NO.58
NAVA NAGAR
BAGALKOT
... PETITIONER
(BY SRI R.S.LAGALI, ADVOCATE)
AND:
DEVAN HOUSING FINANCE
CORPORATION LTD., (DHFL)
REP. BY SHRI. SHIVARADDI
S/O HANAMAARADDI BENTUR
AGE:33 YRS, OCC. BRANCH INCHARGE
POWER OF ATTORNEY HOLDER OF
DEVAN HOUSING FINANCE CORPORATION LTD.,(DHFL)
S1 TO S6, 2ND FLOOR
MAHALAXMI COMPLEX
OPP. MADHALA MARUTI TEMPLE
MG ROAD, BIJAPUR
... RESPONDENT
(BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CRIMINAL
PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 10.12.2013 PASSED IN
CRIMINAL APPEAL NO.29/2013 BY THE PRINCIPAL SESSIONS
JUDGE, BIJAPUR THEREBY CONFIRMING THE JUDGMENT AND
ORDER OF CONVICTION DATED 16.04.2013 PASSED BY THE
JMFC-I COURT, BIJAPUR IN CRIMINAL CASE NO.431/2012 AND
CONSEQUENTLY ACQUIT THE PETITIONER/ACCUSED.
THIS PETITION HAVING BEEN HEARD ON 17.11.2021
AND RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This revision petition is filed challenging the judgment and order of conviction dated 10.12.2013 passed in Criminal Appeal No.29/2013 by the Principal Sessions Judge, Bijapur thereby confirming the judgment and order of conviction dated 16.04.2013 passed by the JMFC-I Court, Bijapur in Criminal Case No.431/2012 and prayed this Court to acquit the petitioner/accused.
2. The factual matrix of the case is that the complainant is the public limited company dealing in 3 housing finance. The complainant-Company has filed a private complaint under section 200 of Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter for brevity referred as 'the NI Act') against the accused-petitioner herein alleging that the accused had availed the housing loan of Rs.1,70,000/- under LC No.B0001484 after executing loan agreement, demand promissory note and other documents in favour of the complainant agreeing to pay the said loan in equated monthly installments and the said loan was sanctioned on 05.08.2003. The accused did not pay the amount within the period and became defaulter. He was due for a sum of Rs.2,67,054/- and for the said amount, the accused had issued a cheque dated 18.05.2011 drawn on Corporation Bank, Branch Bagalkot. When the complainant presented the cheque, the same was returned with an endorsement 'funds insufficient'. The complainant has informed the said fact to the accused by issuing legal notice dated 02.06.2011 and demanded to pay Rs.2,67,054/- and the said notice was duly served on 04.06.2011, but the 4 accused failed to repay the amount. Hence, the complaint was filed under section 200 of Cr.P.C. The trial Court after considering the material on record, taken cognizance and secured the accused and accused did not plead guilty and claimed for trial. The complainant in order to prove its case, examined one witness as P.W.1 and got marked documents at Exs.P.1 to 10. The accused was examined to give statement under section 313 of Cr.P.C., and accused denied the incriminating evidence but not led any defence evidence. The trial Court after considering both oral and documentary evidence convicted the accused and sentenced to pay an amount of Rs.2,97,000/- Being aggrieved by the said judgment of conviction and order of payment of fine, the appeal is filed before the Principal Sessions Judge and the same is numbered as Criminal Appeal No.29/2013. The appellate Court also on re-appreciation of both oral and documentary evidence confirmed the judgment of the trial Court. Hence, the present revision petition is filed by the accused. 5
3. In this revision petition, the accused/revision petitioner's main contention is that both the Courts have committed an error in convicting the accused and sentencing her to pay fine amount. The learned counsel appearing for the petitioner would vehemently contend that both the trial Court and appellate Court at Bijapur did not have the territorial jurisdiction to try the case. It is contended that the respondent Bank has branch at Bagalkot and further it is not in dispute that the main loan transaction has taken place at Bagalkot. The petitioner has issued the cheque drawn on Corporation Bank, Bagalkot Branch. Only fact that demand notice of dishonor was issued from Bijapur would not give jurisdiction to the trial Court at Bijapur. It is contended that the Court derives jurisdiction only when the cause of action arose within its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. It is contended that distinction must be borne in mind between the ingredients of an offence and commission of a part of the offence. Hence, on that count 6 itself, the impugned judgment of conviction and sentence requires interference by this Court. The learned counsel would also submit that on perusal of evidence of P.W.1/complainant, it is clear that he has admitted in his cross-examination regarding filing of the contents of the cheque except the signature and further there is an admission regarding change of ink. It is the specific defence of the petitioner that while she was availing the loan, the respondent has collected 21 signed cheque leaves from the petitioner. In the light of the admissions regarding the contents of cheque and change of ink, the defence of the petitioner appears to be more probable and these are the aspects not considered by the trial Court as well as appellate Court. It is also the contention that the cheque in question has been materially altered by the respondent company without the express or implied consent of the petitioner, the cheque only bears the signature of the petitioner and rest of the contents namely the amount has been filled by the respondent. It is contended that the cheque in question never issued 7 towards legally enforceable debt. The trial Court ought to have accepted the defence taken by the accused which is reasonably appears to be probable and both the courts have failed to take note of the said fact. The learned counsel also would vehemently contend that both the courts have failed to take note of the jurisdiction of the Court as well as merits of the case and hence, it requires interference by exercising revisional power.
4. The learned counsel in support of his argument has relied upon the judgment of Hon'ble Apex Court in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra and another reported in (2014) 3 SCC (Cri) 673, wherein the Court held that place of issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of determining territorial jurisdiction for filing of cheque dishonour complaints.
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5. Per contra, the learned counsel for the complainant would vehemently contend that all transactions have taken place at Bijapur and Ex.P.8 to 10 disclose that all transactions have taken place at Bijapur and both the courts have given finding with regard to jurisdiction also. It is also elicited in the evidence of P.W.1 that they were having only service station at Bagalkot and not having any branch at Bagalkot. The loan availed at Bijapur and letters are addressed to the Bijapur branch and loan account is also maintained at Bijapur branch and all correspondence between the complainant and this petitioner taken place at Bijapur and cheque was also delivered at Bijapur and apart from that cheque was also presented at Bijapur and received the endorsement at Bijapur that cheque was not honoured. Merely because the petitioner herein having an account at Bagalkot cannot confer any jurisdiction and hence, his contention cannot be accepted.
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6. Having heard the learned counsels appearing for the petitioners and the learned counsel appearing for the respondent-complainant, the points that arise for consideration in this revision petition are:
a. Whether the Court in which the complaint is filed is having no jurisdiction to try the case as contended by the revisional petitioner?
b. Whether the Courts below have committed an
error in convicting and sentencing the
petitioner herein and it requires revisional jurisdiction with regard to legality and correctness of the judgment of respective courts?
c. What order? Point No.1
7. Having heard the learned counsel for the revisional petitioner and also counsel appearing for respondent/complainant it is not in dispute that the complaint is filed before Bijapur Court and on perusal of the complaint, it is evident that a specific averment is 10 made regarding transaction between the complainant and the petitioner herein. In the complaint, a specific averment is made that petitioner herein has approached to the complainant for financial assistance and availed the housing loan by executing the loan document and hence, loan was sanctioned on 05.08.2003. But he failed to repay the amount and complaint averment is specific that in order to repay the amount, he has issued the cheque belonging to Corporation Bank, Bagalkot branch and the said cheque was dishonoured. The complainant in order to substantiate his contention that having availing the loan produced the documents Ex.P.1 to 10. Before considering the grounds urged in this revision petition, this Court would like to refer the documents which have been marked. Ex.P.1 is the subject matter i.e., cheque in question. Ex.P.2 is the endorsement issued by the Corporation Bank, Bagalkot branch. Ex.P.3 is the legal notice issued through an advocate of Bijapur. Exs.P.4 and P.5 are postal receipt and postal acknowledgment. Ex.P.6 is the power of attorney. Ex.P.7 is the reply given by the 11 accused to the counsel of the complainant. Ex.P.8 is the complainants' housing finance corporation limited account with loan account is maintained at Bijapur. The bank statement is clear that an amount of Rs.2,67,054/- was due. Ex.P.9 is the document of loan application given by the accused/petitioner herein addressing the said letter to the Bijapur branch. Ex.P.10 is the letter addressed to the Branch Manager, Bijapur Branch by revisional petitioner herein seeking time to repay the loan amount.
8. Having considered these documents, it is clear that the complainant is having a branch at Bijapur and the revisional petitioner by giving application to the branch at Bijapur had availed the loan from Bijapur branch and also letter is addressed seeking repayment of loan to the Bijapur address and all transactions were taken place at Bijapur, except the cheque which pertains to the Bagalkot branch. It is also specific in the complaint averment that when the cheque was presented in the bank of complainant, the same was returned with an endorsement 12 of the payer bank in terms of Ex.P.2. Having taken note of all these material available on record when all the transactions have taken place at Bijapur i.e., application was given to the Bijapur branch, loan was availed from Bijapur branch and loan application was also given to the Bijapur branch and letter was addressed to the Bijapur branch seeking further time to pay the balance amount Exs.P.8 to P.10 substantiate that the transactions were taken place at Bijapur only. It is also not in dispute that the cheque was delivered at Bijapur and also presented from the bank of complainant and endorsement was issued in terms of Ex.P.2 communicating the same to the Axis Bank wherein, the cheque was presented i.e., at Bijapur.
When such being the case, the very contention of the revisional petitioner cannot be accepted. The judgment of Hon'ble Apex Court in the case of Dasharath Rupsingh Rathod referred supra relied upon by the petitioner's counsel is not applicable to the facts on hand in view of all transactions were taken place in Bijapur. Apart from this, the Court would also like to refer the provisions of the NI 13 Act i.e., under section 142 (as amended by II Ordinance 2015) and also under section 142A (as inserted by II ordinance, 2015). This Court would like to refer the judgment of the Hon'ble Apex Court in the case of Bridgestone India Private Limited vs. Inderpal Singh reported in 2016 (1) AKR 207, wherein the Hon'ble Apex Court discussed the earlier judgment passed by the said Court in Dashrath Rupsingh Rathod's case which I have referred above. Referring the said judgment, the Hon'ble Apex Court in Bridgestone India Private Limited case observed that in view of effect of amendment of section 142 and insertion of section 142A(1) vide 2015 II Ordinance, the Court held that the courts at places where the cheque is delivered for collection has territorial jurisdiction entertaining the complaint also section 142(a)(i) gives retrospectivity to the provision. The Hon'ble Apex Court in this judgment discussed section 177 of Cr.P.C., as discussed in Dasharath Rupsingh Rathod's case and having considered the amendment particularly the paragraph Nos.58 to 58.7 of Dashrath 14 Rupsingh Rathod's case supra and extracting section 142 of NI Act i.e., in the principal Act and also insertion of Sections 1 and 2 in respect of section 142 and so also explanation and also section 142(A) in detail discussed in paragraph Nos.11, 12, 13, which I would like to extract as follows:
"11. It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted into the Negotiable Instruments Act. A perusal of Sub- section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non-obstante clause in sub-section (1) of 15 Section 142A. Likewise, any judgment, decree, order or direction issued by a Court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied, that the judgment rendered by this Court in Dashrath Rupsingh Rathod's case would also not non-suit the appellant for the relief claimed.
12. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142A(1) to the effect, that the judgment rendered by this 16 Court in Dashrath Rupsingh Rathod's case, would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises.
13. Since cheque No.1950, in the sum of Rs.26,958/-, drawn on the Union Bank of India, Chandigarh, dated 02.05.2006, was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the appellant on 04.08.2006, we are of the view that the Judicial Magistrate, First Class, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881, after the promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015. The words "...as if that sub-section had been in force at all material times..." used with reference to Section 142(2), in Section 142A(1) gives retrospectivity to the provision."17
9. The Hon'ble Apex Court in this judgment has categorically held that it is imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure and also a reference was made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted into the Negotiable Instruments Act as proviso and comes to the conclusion that in view of the said amendment any judgment, decree, order or direction issued by a Court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. Whether cheque is delivered for collection (through the account of the branch of the bank where payee or holder in due course maintains an account). It is also held that based on section 142(1)(a) to the effect that the judgment rendered by the Hon'ble Apex Court in Dashrath Rupsingh Rathod's case, would not stand in the way of the appellant. Insofar as territorial jurisdiction for 18 initiating proceedings emerges from the dishonor of the cheque in the present case.
10. Having taken note of the principles laid down in the judgments and also considering the facts and circumstances of the case and as I have already pointed out that all transactions were taken place at Bijapur i.e., giving application for loan to the branch of Bijapur, loan was availed from Bijapur, and bank loan account was also maintained in the bank of Bijapur and letters are also addressed by the revisional petitioner to the Bijapur branch and cheque was also delivered for collection through the account of the branch of the bank where payer availed the loan and payee also having the branch at Bijapur and also holder in due course maintains account at Bijapur, the very contention of the learned counsel for the petitioner that the Court at Bijapur is not having jurisdiction cannot be accepted. This Court also subsequent to the judgment in the case of Bridgestone India Private Limited referring the said judgment and 19 also referring the judgment in the case of Dashrath Rupsingh Rathod's considering the issue involved with regard to the jurisdiction, in the judgment of Gopal Krishna S/o Srinivasa vs. Abdul Bakai S/o Hussain Basha reported in 2019 (4) KLJ 401, discussed the scope of section 138, 142, 142-A of the NI Act and also scope of section 397 and 401 of Cr.P.C., and held that place of territorial jurisdiction of the Court to try the said offence and also taken note of effect of amended provisions and applicability of the said amendment came to the conclusion that proviso and Amendment Act of 2015 is aptly applicable and the very contention of respondent in that case that both of them were residing at Sandur and cheque is presented at Hospet is not acceptable. This Court having considered the principles enunciated in Bridgestone India Private Limited case ordered to present the cheque at Hospet. In the case on hand also, having considered the amended provisions as well as the principles laid down in the judgment referred supra particularly in Bridgestone India Private Limited, the 20 very contention of the revisional petitioner that Court at Bijapur is not having jurisdiction cannot be accepted. The proviso of section 142(2) is very clear that offence under section 138 shall be inquired into and tried only by a Court within whose local jurisdiction, a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated and also explanation is clear that where a cheque is delivered for collection at any branch of the bank of payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. When such amendment was brought in 2015 and inserted section 142(2) of the NI Act, the very contention of the petitioner that the Bijapur Court is not having jurisdiction to try the complaint filed 21 for the offence under section 138 of NI Act, cannot be accepted.
11. I have already pointed out that all transactions have taken place at Bijapur and loan was availed at Bijapur and loan application was given at Bijapur, correspondences were made at Bijapur and cheque was delivered at Bijapur and loan account was maintained by the payee at Bijapur, no doubt, the learned counsel for the petitioner brought to the notice of this Court the answer elicited in the mouth of P.W.1 regarding having the service branch at Bagalkot, but it is clear that they were having only this service center at Bagalkot and he categorically admits that they were not having any branch at Bagalkot and only one officer by name Nagaraj Pattar is incharge officer at Bagalkot. No doubt, the accused is residing at Bagalkot and the same will not confer any jurisdiction and also merely because the accused is having Corporation Bank account at Bagalkot, the same will not confer any jurisdiction.
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12. P.W.1 also categorically given admission that cheque was presented at Bijapur Axis Bank and also endorsement was given by the bank of the petitioner in respect of Axis Bank in terms of Ex.P.2. It is suggested that he has falsely deposed that cheque is presented at Axis Bank and the same was categorically denied. Hence, having taken note of all these materials available on record, the very contention of the petitioner cannot be accepted. Hence, I answer point No.1 in negative. Point No.2
13. Regarding exercising of revisional power by the Court is concerned, the same is also limited, the Court has to exercise revisional power only if the judgment of conviction and sentence which is affirmed by the appellate Court is not in conformity with the legality and correctness of the judgment and both the orders suffer from illegality and correctness of the order, only then the Court can exercise revisional jurisdiction. I do not find such illegality 23 committed by both the courts and having considered Exs.P.1 to P.10 and evidence, it is not in dispute regarding availing of loan and only contention was taken that the contents of the cheque at Ex.P.1 signature and hand writing made in Ex.P.1 are in different ink. The said contention also cannot be accepted. Recently the Hon'ble Apex Court held that once signed cheque is delivered, the contention of the accused cannot be accepted and he has to rebut the case of the complainant. In the case on hand, the accused has not rebutted the evidence of complainant by leading any defence evidence. No doubt, the accused cross examined the witness P.W.1 to rebut his evidence by way of cross-examination of P.W.1 and the same is also not done with regard to transaction is concerned and the counsel mainly has concentrated with regard to jurisdiction while cross-examining P.W.1. When such being the facts and circumstances of the case, I do not find any reason to exercise revisional jurisdiction and hence, I do not find any merit in the revision petition.
24Point No.3
14. In view of the observations made above, I pass the following:
ORDER The revision petition is dismissed.
Sd/-
JUDGE VNR