Tripura High Court
Sri Swarnembhu Sarkar vs Sri Binoy Krishna Podder @ Binoy Podder on 30 June, 2017
THE HIGH COURT OF TRIPURA
AGARTALA
CRL PETN. NO. 22/2017
Sri Swarnembhu Sarkar,
S/o- Sri Shambhunath Sarkar,
Resident of Village- Mathurapur,
P.O. Kholapota,
P.S. Basirhat,
District- North 24 Parganas,
Pin Code- 743428, West Bengal,
(erroneously proceeded before the
Learned Trial Court as
Sri Sarnembhu Sarkar,
S/o- Sri Sambhunath Sarkar,
C/o- M/s. Halder Service Stations,
Village & P.O. - Kholapota,
P.S. Basirhat,
District- North 24 Parganas,
West Bengal).
...... Petitioner.
-Versus-
1. Sri Binoy Krishna Podder @ Binoy Podder,
S/o- Late Satish Chandra Podder,
Resident of 20/2, N. S.C. Bose Road,
Graham's Land, Tollygunge,
P.S. - Jadhavpur, Kolkata-700 040,
West Bengal, Presently residing at
Math Chowmohani, College Road,
P.O.-Agartala College,
P.S.- East Agartala,
Sub-Division- Agartala,
District-West Tripura,
Pin Code- 799 004, Tripura.
2. The State of Tripura,
Service through: The Secretary to the Home
Department,
Government of Tripura, Agartala.
...... Respondents.
BEFORE THE HON'BLE THE CHIEF JUSTICE Counsel for the petitioner : Mr. S.K. Bhattacharjee, Advocate.
Mr. S. Mandal, Advocate.
Mr. R. Sen, Advocate.
Counsel for the respondents : Mr. S. Sarkar, Public Prosecutor, Mr. S. Lodh, Advocate.
Date of hearing : 16-06-2017
Date of Judgment & Order : 30-06-2017
Crl. Petn. No. 22/2017 Page 1 of 8
JUDGMENT & ORDER
This criminal petition is directed against the order dated 14-3-2017 passed by the learned Additional Chief Judicial Magistrate, West Tripura, Agartala in NI Case No. 190 of 2013 holding that he has the territorial jurisdiction to try the case.
2. The facts of the case, relevant for disposal of the criminal petition and as pleaded by the petitioner, may be noticed at the outset. The petitioner is running a dealership of Indian Oil Corporation Ltd. under the name and style of M/S Halder Service Station located at Kholapota in the District of North 24 Paraganas, West Bengal. The respondent No. 1 and his brother, one Shankar Podder, are also having petroleum business in Tripura and were looking for starting a business in West Bengal in the year 2008-09. Due to ill-health and lack of fund, the petitioner had made a proposal to the respondent No. 1 and his brother to assist him in the running of his business. On acceptance of the proposal, they had entered into notarized agreement on 19-5-2009 at Barasat, and the respondent No. 1 paid a sum of ₹25,00,000/- to the petitioner in terms of the said agreement as a working capital and another sum of ₹10,00,000/- as security deposit. As per the agreement, the petitioner was required to pay ₹70,000/- per month to the respondent No. 1 if the profit so earned did not exceed ₹1,75,000/- and would pay an additional amount equivalent to 40% of the excess amount earned over and above ₹1,75,000/-.
3. To facilitate the parties to make alteration/amendment in some of the clauses of the said agreement, another agreement was executed by the parties on 27-9-2009 stipulating therein that the agreement dated 19-5- 2009 would be valid for five years and an additional amount of ₹10,00,000/- would be paid to the petitioner thereby making the total payment to the order of ₹45,00,000/- notwithstanding the statement in the complaint petition that from the very inception, the petitioner was a Crl. Petn. No. 22/2017 Page 2 of 8 defaulter in paying the share in the profit to the respondent No. 1 and his brother. In the subsequent agreement dated 27-7-2009, it was agreed that the petitioner would pay to the respondent No. 1 a sum of ₹90,000/- per month or 50% of the net profit, whichever was higher. Some dispute arose between the parties whereupon the respondent No. 1 served the notice dated 16-8-013 to the petitioner for return of the entire money paid to him earlier. The petitioner, therefore, made calculation of the amount to be returned to the respondents and found that he was liable to pay a sum of ₹65,65,000/- and accordingly issued a cheque bearing No. 598805 dated 1-9-2013 drawn on Axis Bank Ltd., Nabapally Branch, Kolkata. On 3-9- 2013, when the respondent No. 1 presented the cheque through his banker, State Bank of India, SME, Agartala Bazar Branch, the same was returned with the comments of "Payment stopped by drawer" and "funds insufficient" vide the Note dated 4-9-2013.
4. It is the further case of the petitioner that on 21-3-2014 (the petition was filed on 15-11-2013), the trial court deemed it fit to peruse the original documents before taking cognizance of the offence due to the peculiar nature of the allegations contained in the complaint and fixed 28- 3-2014 as the next date for further proceeding. On 28-3-2014, the respondent No. 1 prayed for adjournment whereupon 4-4-2014 was fixed for the next date. On 4-4-2014, in the absence of the respondent No. 1, the trial court, based on the original documents, took cognizance of the offence and fixed 29-5-2014 for examination of the respondent No. 1 U/s 200, CrPC. After his examination, the trial court issued directions for filing of requisites for issuance of Special Summons upon the petitioner through Speed Post fixing 1-9-2014 as the date of service of return of the summons. It was the contention of the petitioner that contrary to the directions passed by the Apex Court in Dashrath Rupsingh Rathod v. State of Maharashtra and another, (2014) 9 SCC 129, the trial court failed to return the complaint petition as it has no territorial jurisdiction to Crl. Petn. No. 22/2017 Page 3 of 8 entertain the same. The petitioner, therefore, approached this Court under Section 482 CrPC in Criminal Petition No. 32 of 2016 challenging the maintainability of the criminal proceedings pending before the trial court. This Court by the order dated 9-12-2016 directed the trial court to dispose of the preliminary objection on the maintainability issue raised by the petitioner. The trial court, after hearing the parties, passed the impugned order holding that it has the territorial jurisdiction to try the case as the cheque was presented at Agartala for encashment and rejected the preliminary objection. It is against the said decision that this second round of litigation is initiated by the petitioner.
5. Though a number of contentions have been raised by Mr. S.K. Bhattacharjee, the learned counsel for the petitioner, to assail the legality of the impugned order, suffice it to refer to one of the cases cited by him, namely, Bridgestone India (P) Ltd. v. Inderpal Singh, (2016) 2 SCC 75, which, I think, resolves the controversy against the petitioner. That was a case in which cheque No. 1950, drawn on Union Bank of India, Chandigarh, was issued by the respondent therein to the appellant. The cheque was in the sum of Rs 26,958/-. The appellant presented the above cheque at IDBI Bank at Indore. The appellant received intimation of its being dishonoured on account of "... exceeds arrangement..." on 4-8-2006 at Indore. The appellant issued a legal notice on 26-8-2006, which was served on the respondent on 6-9-2006, demanding the amount depicted in the cheque. Consequent upon the issuance of the aforementioned legal notice wherein the respondent was required to reimburse the cheque amount to the appellant, and the respondent having failed to discharge his obligation, proceedings were initiated by the appellant on 13-10-2006 in the Court of the Judicial Magistrate, First Class, Indore, under Section 138 of the Negotiable Instruments Act, 1881.
Crl. Petn. No. 22/2017 Page 4 of 8
6. The respondent preferred an application before the Judicial Magistrate, First Class, Indore, Madhya Pradesh, under Section 177 of the Criminal Procedure Code, 1973, contesting the territorial jurisdiction with respect to the above cheque drawn on Union Bank of India, Chandigarh. The prayer made by the respondent that the Judicial Magistrate, First Class, Indore, did not have the jurisdiction to entertain the proceedings initiated by the appellant was rejected on 2-6-2009. The Judicial Magistrate, First Class, Indore, relied on the judgment rendered by this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and another, (1999) 7 SCC 510 to record a finding in favour of the appellant.
7. Dissatisfied with the order passed by the Judicial Magistrate, First Class, Indore, dated 2-6-2009, the respondent filed an application under Section 482 of the Criminal Procedure Code in the High Court of Madhya Pradesh. The High Court, by an order dated 3-12-2009, disposed of the application by remitting the case to the Judicial Magistrate, First Class, Indore, requiring him to pass a fresh order after taking into consideration the additional documents relied upon, and the judgments cited before the High Court. The Judicial Magistrate, First Class, Indore, yet again, by an order dated 11-1-2010 held that he had the territorial jurisdiction to adjudicate upon the controversy raised by the appellant under Section 138 of the Negotiable Instruments Act, 1881. The decision rendered by the Judicial Magistrate, First Class, Indore, was again assailed by the respondent in yet another application filed by him under Section 482 of the Criminal Procedure Code in the High Court of Madhya Pradesh. The High Court accepted the prayer made by the respondent by holding that the jurisdiction lay only before the court wherein the original drawee bank was located, namely, at Chandigarh, wherefrom the respondent-accused had issued the cheque concerned, bearing No. 1950, drawn on Union Bank of India, Chandigarh. Aggrieved by this, the appellant approached Crl. Petn. No. 22/2017 Page 5 of 8 the Apex Court by way of appeal. Setting aside the order of the High Court, the Apex Court held:
"13. A perusal of the amended Section 142(2), extracted above, leaves no room for any doubt, specially in view of the Explanation thereunder, that with reference to an offence under Section 138 of the Negotiable Instruments Act, 1881, the place where a 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, would be determinative of the place of territorial jurisdiction.
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 Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142-A 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 Section 142-A. 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 case Crl. Petn. No. 22/2017 Page 6 of 8 (supra) 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 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 142-A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod case (supra), would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in the present case arises.
16. Since Cheque No. 1950, in the sum of Rs 26,958, drawn on Union Bank of India, Chandigarh, dated 2-5-2006, was presented for encashment at IDBI Bank, Indore, which intimated its dishonour to the appellant on 4-8-2006, 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 142-A(1) gives retrospectivity to the provision." Crl. Petn. No. 22/2017 Page 7 of 8
8. In my opinion, no two cases can be so similar on facts. In the instant case also, cheque bearing No. 598805 amounting to ₹65,65,000/- drawn on Axis Bank Ltd., Nabapally Branch, Kolkata issued by the petitioner was presented for collection by the respondent No. 2 on 3-9- 2013 through his banker i.e. State Bank of India, SME, Agartala Bazar Branch, Agartala. However, instead of encashing the cheque, it was returned to the respondent No. 1 by his banker with the remark such as "Payment stopped by drawer" and "funds insufficient". In such circumstances, I have no hesitation to hold that the learned Additional Chief Judicial Magistrate, West Tripura, Agartala has the territorial jurisdiction to entertain the complaint petition of the respondent No. 1. Consequently, the trial court did not violate any of the directions of the Apex Court in Dasrath Roopsingh Rathod case (supra). No other contentious issue remains to be decided.
9. For what has been stated in the foregoing, there is no merit in this criminal petition, which is hereby dismissed. The trial court shall now proceed with the trial of the case and dispose of the same within a period of four months from the date of receipt of this judgment. The parties are directed to appear before the trial court on 17-7-2017 at 10-30 AM without fail. The interim order passed earlier stands vacated.
CHIEF JUSTICE Crl. Petn. No. 22/2017 Page 8 of 8