Kerala High Court
Dr.Radha Mohan vs Abs Channel Plus Visual Media ... on 10 October, 2012
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. 355 of 2013
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C.C.NO. 1780/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
THRISSUR
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PETITIONER(S)/ACCUSED :
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DR.RADHA MOHAN,
MANAGING DIRECTOR, MATHA PROTEIN PRIVATE LIMITED,
EZHUKONE P.O,KOLLAM.
BY ADV. SRI.B.MOHANLAL
RESPONDENT(S) :
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1. ABS CHANNEL PLUS VISUAL MEDIA ADVERTISING PRIVATE
LIMITED, SAI SADAN, MUSEUM ROAD, CHEMBUKKAVU,
THRISSUR, A REGISTERED PRIVATE LIMITED COMPANY,
REPRESENTED BY ITS MANAGING DIRECTOR, SATHEESH,
S/O.BALAN, ATHIKAL HOUSE, MUDICODE P.O, PATTIKKAD,
THRISSUR, PIN-686 009.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.K.B.GANGESH
R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 25-10-2017, ALONG WITH Crl.MC.No. 356 OF 2013 AND CONNECTED
CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Msd.
Crl.MC.No. 355 of 2013
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APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE A1:- THE TRUE COPY OF THE COMPLAINT C.C NO.1780/2011 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THRISSUR,
ANNEXURE A2:- THE TRUE COPY OF THE APPLICATION DATED 10/10/2012
FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-II, THRISSUR.
RESPONDENT(S)' ANNEXURES :
NIL
//TRUE COPY//
P.A.TO JUDGE
Msd.
ALEXANDER THOMAS, J.
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Crl.M.C.Nos.355, 356, 357, 358 & 2646 Of 2013
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Dated this the 25th day of October, 2017.
O R D E R
The petitioner is the accused in all the 5 complaints, which are the subject matter of these 5 Crl.M.Cs. The 1st respondent-company is also the complainant in respect of those 5 complaints. All the complaints have been instituted before the Judicial First Class Magistrate Court-II, Thrissur. The 5 complaints are C.C.Nos.1780/2011, 1782/2011, 1781/2011, 1163/2011 and 119/2012 pertaining to these 5 petitions. The prayer raised in these petitions is for quashing the impugned respective complaints.
2. Hears Sri.B.Mohan Lal, learned counsel appearing for the petitioner and Sri.K.B.Gangesh, learned counsel appearing for the 1st respondent-complainant (company) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.
3. The main contention raised by Sri.B.Mohan Lal, learned counsel appearing for the petitioner, is to the effect that the trial court does not have territorial jurisdiction to try the instant complaints. It is pointed out that all the dishonoured cheques involved in these 5 ::2::
Crl.M.C.Nos.355, 356, 357, 358 & 2646 Of 2013 complaints have been drawn from the Indian Bank, Kottarakkara Branch, Kollam, and that therefore, the only Magistrate Court having territorial jurisdiction over the drawee bank have territorial jurisdiction to try the case, etc. It is not in dispute that all these cheques have been drawn from Indian Bank, Kottarakkara Branch, Kollam District, from the account maintained by the accused. It is also not in dispute that these cheques were sent for collection through the complainant's bank, viz., South Indian Bank, Mission Quarters Branch, Thrissur.
4. 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 ::3::
Crl.M.C.Nos.355, 356, 357, 358 & 2646 Of 2013 cheque take place alone will have territorial jurisdiction to try the case.
5. 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.
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Crl.M.C.Nos.355, 356, 357, 358 & 2646 Of 2013 (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 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 ::5::
Crl.M.C.Nos.355, 356, 357, 358 & 2646 Of 2013 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 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.
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Crl.M.C.Nos.355, 356, 357, 358 & 2646 Of 2013
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. It is also not in dispute that the Judicial First Class Magistrate Court-II, Thrissur, is having territorial jurisdiction over the collection bank area as the collection bank is South Indian Bank, Mission Quarters Branch, Thrissur. For these reasons, the above said arguments raised by Sri.B.Mohan Lal, learned counsel appearing for the petitioner, challenging jurisdiction of the trial court in this case are bereft of any merit and the said contentions are accordingly overruled.
6. However, Sri.B.Mohan Lal, learned counsel appearing for the petitioner and Sri.K.B.Gangesh, learned counsel appearing for the 1st respondent-company would submit on the basis of instructions of their respective parties that the complainant and the accused are willing to seek the option of mediated settlement and that necessary orders may be passed facilitating for such action before the trial court.
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Crl.M.C.Nos.355, 356, 357, 358 & 2646 Of 2013
7. The trial court has now intimated the Registry of this Court that all these 5 complaints in this case could not be proceeded in view of the stay order issued by this Court. The said stay order will stand vacated. However, the complainant and the learned counsel for the complainant-accused, the accused and the learned counsel for the accused shall personally appear before the trial court at 11:00 a.m. on 18.11.2017. In case both parties submit that they are willing to seek mediatory settlement of the disputes, then the trial court shall refer the parties to the nearest mediation centre for resolution of the dispute through alternate mechanism. The learned counsel appearing for the complainant submits that the complainant is willing to grant reasonable time to the accused for effectively working out any settlement that may be arrived at in the mediatory process. On such reference to the mediation centre, the mediator will endeavour to complete the process of mediation without much delay and submit the report on the outcome of the mediation to the trial court. Report on the mediation will also be given to the parties. Two months' time may be given in that regard for finalising the mediation process. If the counsel for the complainant appraises the trial court that the complainant is willing to give more time to the accused to work out the terms and conditions of the ::8::
Crl.M.C.Nos.355, 356, 357, 358 & 2646 Of 2013 mediation agreement so arrived at, then the trial court should adjourn the case and grant sufficient time to the parties for facilitating the working out of such settlement of terms and conditions. However, if the complainant reports that mediation process has failed or that they are not interested to grant more time, then the trial court may take up the matter. In other words, all reasonable measures should be taken by the trial court to ensure that the parties endeavour to settle their resolution through mediation process and after finalisation of the mediation agreement if the complainant is willing to grant more time to the accused, then the same should also be accorded by the trial court. The Registry will forward a copy of this order to the trial court at the cost of the petitioner. Parties may also produce a copy of this order before the trial court for necessary information and compliance. It is also made clear that all contentions raised by the petitioner other than the contention of the territorial jurisdiction should be appropriately decided by the trial court.
With these observations and directions, all the Crl.M.Cs stand finally disposed of.
ALEXANDER THOMAS, Judge.
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