Kerala High Court
Kannan N. 27 vs State Of Kerala on 25 October, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939
Crl.MC.No. 4047 of 2014 ()
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CC 4571/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT - VI,
ERNAKULAM
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PETITIONER/ACCUSED :
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KANNAN N. 270, UPPARA STREET,
COIMBATORE - I, TAMILNADU - 641 001
BY ADVS.SRI.K.NIRMALAN
SRI.A.RAJASIMHAN
RESPONDENTS/STATE AND THE DEFACTO COMPLAINANT:
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1. STATE OF KERALA
REPRESENTED BY THE PUBI PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. M/S. JRG WEALTH MANAGEMENT LTD
JRG HOUSE, ASOKA ROAD, KALOOR, COCHIN - 17 ,
REPRESENTED BY ITS AUTHORISED REPRESENTATIVE
S. SANJAYAN, AGED 41 YEARS
R1 BY PUBLIC PROSECUTOR SAIGI JACOB PALATTY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLYHEARD
ON 25-10-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
bp
Crl.MC.No. 4047 of 2014 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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A1: - TRUE COPY OF THE COMPLAINT IN CC NO. 4571/2010 ON THE
FILES OF JFMC-VI, ERNAKULAM.
A2: - TRUE COPY OF THE PETITION IN CMP NO. 51/2014.
A3: - TRUE COPY OF THE OBJECTION IN CMP NO. 51/2014.
A4: - CERTIFIED COPY OF THE ORDER DT. 18.6.14.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
ALEXANDER THOMAS, J.
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Crl.MC No.4047 of 2014
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Dated this the 25th day of October, 2017.
O R D E R
The prayer in this Criminal Miscellaneous Case is as follows:
"For these and other grounds to be urged at the time of hearing it is most humbly prayed that in the interest of justice this Hon'ble Court may be pleased to invoke the inherent jurisdiction under section 482 of the Criminal Procedure Code, 1973 and set aside Annexure A4 order and quash Annexure A1 complaint and all further proceedings."
2. The instant Crl.MC was filed on 17.7.2014. The case was admitted on 5.8.2014, on which day, this Court has ordered notice to R-2 (complainant). The case came up subsequently on 26.8.2014, 1.7.2015, 20.7.2015 and 23.7.2015, and no interim order of stay has been passed in this matter.
3. In compliance with this Court's order dated 5.8.2014, the trial court concerned (Court of Judicial I Class Magistrate-VI, Ernakulam) has furnished letter dated 19.8.2014 addressed to the Registry of this Court stating that at that point of time, the complaint was posted for complainant's evidence on 23.8.2014 and that so far, the complainant has not filed any proof affidavit in lieu of chief examination. Now the office of the Judicial 1st Class Magistrate Court-VI, Ernakulam has also telephonically intimated the Registry of this Court that the complaint was ordered to be returned to the party, who was directed to take the case file for re-presentation before appropriate court. Further it is also informed Crl.M.C.4047/14 - : 2 :-
that so far neither the complainant nor the counsel for the complainant has turned up to collect the case records and that the case papers and records in relation to this case are still in the office of the abovesaid trial court.
4. Notice issued to R-2 has been returned unserved stating 'left'. Thereafter, the petitioner has not taken any steps to serve notice on R-2 (complainant).
5. The petitioner accused filed Anx.A-2 Criminal Miscellaneous Petition No.51/2014 in C.C.No. 4571/2010 dated 14.5.2014 contending that the cause of action has not arisen the within the jurisdiction of the abovesaid trial court and that direction may be issued to return the complaint under Sec. 322 of the Cr.P.C. The complainant has filed Anx. A-3 objections dated 23.5.2014 thereto. Later, the trial court passed the impugned Anx.A-4 order dated 18.6.2016 holding that the said court has no jurisdiction to proceed with the complaint and accordingly Anx.A-2 petition submitted by the petitioner accused was dismissed. It is this order at Anx. A-4 that is under challenge in this present Crl.M.C.
6. A reading of the impugned Anx. A-1 complaint would disclose that the dishonoured cheque dated 16.11.2007 has been drawn from the account of the Federal Bank Ltd., Madhurai road, Theni, Tamilnadu. Further it is revealed from the complaint that the abovesaid cheque was presented by the complainant for encashment through complainant's banker, viz., Federal Bank Ltd., Pachalam Branch, Ernakulam, Cochin 682 Crl.M.C.4047/14 - : 3 :-
012. So the contention of the accused appears to be that since the drawee bank is based at Theni, Tamilnadu, the Magistrate court having territorial jurisdiction over the drawee bank area alone will have jurisdiction to try the abovesaid offence. Whereas the contention of the respondent (complainant) appears to be that the Magistrate court having territorial jurisdiction over the collection bank area has jurisdiction and that the since the collection bank is Federal Bank, Pachalam, Ernakulam, the present trial court (Judicial First Class Magistrate's Court-VI, Ernakulam) has necessary territorial jurisdiction, etc.
7. The Apex Court in the land mark Three-Judge Bench judgment dated 1.8.2014 in Dasarath Rupsingh Rathod v. State of Maharashtra & anr., reported in (2014) 9 SCC 129, has held that the offence under Sec.138 of the N.I. Act is committed at the time of the dishonour of the cheque and that therefore in view of the provisions contained in Sec.177 of the Cr.P.C dealing with territorial jurisdiction, the complainant cannot file the complaint to the place of his choosing and that territorial jurisdiction is restricted with the court within whose limits the offence is committed, which in the present context in Sec.138 of the N.I.Act where the cheque is dishonoured, etc. Accordingly, it has been held therein that the learned Magistrate Court having territorial jurisdiction over the drawee bank where the dishonour of the cheque take place alone will have territorial jurisdiction to try the case.
Crl.M.C.4047/14 - : 4 :-
8. Later, the legislative intervention was made by amending the provisions contained in Negotiable Instruments Act, made effective from 15.6.2015 by inserting Secs.142(2) & 142A of the said Act, which read as follows:
"Sec.142: Cognizance of offences.-
xxx xxx xxx (2) The 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.
Explanation.-- For the purposes of Clause (a), where a cheque is delivered for collection at any branch of the bank of the 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.
xxx xxx xxx Sec.142A: Validation for transfer of pending cases.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or direction of any Court, all cases transferred to the Court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times.
(2) Notwithstanding anything contained in sub-section (2) of Section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the Court having jurisdiction under sub-section (2) of Section 142 or the case has been transferred to that Court under sub-section (1) and such complaint is pending in that Court, all subsequent complaints arising out of Section 138 against the same drawer shall be filed before the same Court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that Court.
(3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different Courts, upon the said fact having been brought to the notice of the Court, such Court shall transfer the case to the Court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that sub-section had been in force at all material times." Construing the above said amended provisions of the Negotiable Instruments Act, the Apex court in the case Bridgestone India Private Crl.M.C.4047/14 - : 5 :-
Limited v. Inderpal Singh, reported in (2016) 2 SCC 75, has categorically held in para 13 thereof that a perusal of the amended Sec.142 (2), leaves no room for any doubt, in so far as an offence under Sec.138 of the N.I.Act and on the issue of jurisdiction the provisions of the Cr.P.C will have to give way to the provisions of the N.I Act on account of sub-sec.(1) of Sec.142 and any judgment, decree or direction issued by a court like the one issued in Dasarath Rupsingh Rathod v. State of Maharashtra & anr., reported in (2014) 9 SCC 129, for initiating complaint proceedings for offence under Sec.138 of the N.I Act. Further it has been held in Bridgestone's case (supra), in para 15 thereof that in view of the amendments incorporated in Sec.142(2), it vest jurisdiction for initiating proceedings for offence under Sec.138 of the N.I. Act, in the territorial jurisdiction of the court where the cheque is delivered for collection, i.e., the branch of the bank of the payee or holder in due course, where the drawee maintains an account, etc. Further it was held in para 16 of the above said judgment of the Apex Court in Bridgestone' s case (supra), that the words "......as if that sub-section had been in force at all material times ........"
used with reference to Sec.142(2) in Sec.142A(1) gives retrospectivity to that provision, etc. It will be profitable to refer to paras 14 to 16 of the decision in Bridgestone India Private Limited v. Inderpal Singh, reported in (2016) 2 SCC 75, which read as follows:
'14. It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the Crl.M.C.4047/14 - : 6 :-
provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to S.4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby S.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 S.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 S.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 S.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.
15. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that S.142(2)
(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under S.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 S.142A(1) to the effect, that the judgment rendered by this 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.
16. 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 S.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 S.142(2), in S.142A (1) gives retrospectivity to the provision.' In the light of these provisions, it is now well settled that Magistrate Court having territorial jurisdiction over the collection bank area alone will have territorial jurisdiction to try the case.
9. No serious objections are raised by the petitioner/accused that the present trial court has territorial jurisdiction over the collection bank area at Ernakulam. For these reasons, the contentions raised by the petitioner accused regarding lack of territorial jurisdiction of the present Crl.M.C.4047/14 - : 7 :-
trial court appears to be untenable and so the conclusions arrived at by the trial court in the impugned Anx. A-4 order dated 18.6.2014 do not suffer from any serious legal infirmity and so the prayer of the petitioner accused in the present Crl.M.C. is only to be rejected. It is accordingly so ordered.
10. As it is now reported by the trial court that the case records are still with that court, it is ordered in the interest of justice that the trial court shall take back the case papers in relation to the impugned Anx.A-1 complaint in C.C.No. 4571/2010 and in view of the provisions contained in Sec. 142 (2) and 142 A of the N.I. Act, the complaint should be treated to have been restored to the file of that court. The trial court will issue summons to the accused. Notice of intimation should also be issued by the trial court to the complainant, counsel for the complainant and the counsel for the accused. Thereafter, the trial court will proceed with the complaint in accordance with law. The Registry will forward copies of this order to the trial court, the 2nd respondent and the petitioner.
With these observations and directions, the aforecaptioned Crl.M.C. will stand finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
///True Copy///
P.S. to Judge