Kerala High Court
Sree Gokulam Chits And Finance Company ... vs Sindhu P.R on 27 February, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 27TH DAY OF FEBRUARY 2017/8TH PHALGUNA, 1938
Crl.Rev.Pet.No. 271 of 2017
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CRMP 389/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA
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REVISION PETITIONER/COMPLAINANT:
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SREE GOKULAM CHITS AND FINANCE COMPANY [P] LTD,
NO.66, ARCOT ROAD, KODAMBAKKAM, CHENNAI,
HAVING DIVISIONAL OFFICE AT SHERIN BUILDING,
JOSE JUNCTION, M.G.ROAD, ERNAKULAM-16,
AND HAVING BRANCH AT KALOOR, REPRESENTED BY
POWER OF ATTORNEY HOLDER C.K.SURESH BABU.
BY ADV. SMT.A.SREEKALA
RESPONDENT/ACCUSED:
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1. SINDHU P.R,W/O ANEESH KUMAR K.B,
KEERAMALLYPARAMBIL HOUSE, SHANMUGHAPURAM,
PACHALAM, KOCHI -682 012.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADVS. SRI.V.MAHENDRANATH
SRI.R.SYLESHWAREN NAIR
SMT.M.VISHNUPRIYA
R2 BY PUBLIC PROSECUTOR SRI JUSTINE MATHEW
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 27-02-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
K.V.
ALEXANDER THOMAS, J.
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Crl.R.P.No.271 Of 2017
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Dated this the 27th day of February, 2017.
O R D E R
Heard Smt.A.Sreekala, learned counsel appearing for the revision petitioner, Sri.R.Syleshwaren Nair, learned counsel appearing for R-1 complainant and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State.
2. Initially the complainant had preferred the complaint under Sec.138 of the Negotiable Instruments Act, in which R-1 was arrayed as accused on 8.3.2013 before the Additional Chief Judicial Magistrate Court, Ernakulam. Pursuant to the directions issued by the Apex Court in the judgment dated 1.8.2014 in the case Dasarath Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, the said complaint was returned by the above said Magistrate Court on 10.12.2014 for re-presentation before the Judicial First Class Magistrate Court-II, Aluva. Due to unavoidable reasons the said complaint could not be presented within the 30 days period as stipulated by the Apex Court and therefore the complaint was preferred before the Magistrate Court at Aluva, along with an application to condone the delay of 25 days ::2::
Crl.R.P.No.271 Of 2017 in representing the complaint. The matter was initially posted before the Magistrate Court at Aluva, on 16.2.2015. On that day, the petitioner's counsel had some personal inconvenience to attend the court and entrusted the matter with another counsel to make necessary representation. But, it was informed by the Advocate clerk attached to the counsel's chamber that he could reliably learnt that the said case along with some other cases will be transferred to the newly established court at Thrikkakkara. It was much later, the counsel came to know, as a matter of fact, on 15.6.2015, the case was adjourned to 26.6.2015 and on 26.6.2015 the delay condonation application was dismissed and consequently the complaint was also dismissed as per the impugned orders.
3. A Division Bench of this Court in the case Binoy K.Mathew v. Godley Dev John & anr. reported in 2015 (4) KHC 243 (DB) has held that the directions in the Apex Court judgment in the case Dasarath Rupsingh Rathod 's case (supra) will not preclude the statutory powers conferred on the Magistrate as per Sec.470 of the Cr.P.C r/w Sec.142(b) of the N.I. Act for considering delay condonation application in case the complaint could not be re-presented within a period of 30 days as stipulated in the Apex Court judgment. However, the Division Bench further held that in view of the substantive amendments incorporated as per Negotiable Instruments Amendment Ordinance, 2015 and the Negotiable Instruments Second ::3::
Crl.R.P.No.271 Of 2017 Amendment Ordinance, 2015, etc., there is no necessity to take recourse to the delay condonation provision, in view of the enactment of sub-sec.(2) of Sec.142 and 142A as per the amended provisions of the N.I.Act. It was held in para 19 of the above said Division Bench Ruling that the non obstante clause in Sec.142A of the N.I. Act, as inserted by the Ordinance, covers cases pending before any court, whether filed before it or transferred to it, before the commencement of the Ordinance and such cases shall be transferred to the court having jurisdiction under sub- sec.(2) of Sec.142 of the N.I. Act as if that sub-section had been in force at all material times. Ordinance No.6 of 2015 is clarificatory in nature, clarifying the territorial jurisdiction for trying the cases for dishonour of cheques as indicated in the Statement of Objects and Reasons appended to the Amendment Bill. Sub-section (1) of S.142A of the N.I. Act would make the position clear that it is clarificatory in nature and therefore, it is not necessary to direct the courts which passed the impugned orders to entertain the complaints and consider the applications for condonation of delay. It would be sufficient if the petitioners are permitted to present the complaints before the courts where they were originally filed. Further it was held in para 20 of the said ruling that on presentation of the complaints before the courts ::4::
Crl.R.P.No.271 Of 2017 where they were originally filed, petitioners could be permitted to present the complaint in the respective courts where they are originally filed in view of the provisons contained in Secs.142(2) and 142A of the Negotiable Instruments Act and that on such presentation the courts shall treat the same as having been filed on the date on which the respective complaint was originally filed and the petitioners shall present their respective complaint in the proper court namely, the court where it was originally filed, within one month, etc. Sub-sec.(2) of Sec.142 as per the amended provision reads as follows:
Section 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. Sec.142A introduced as per the amended provision reads as follows:
Section 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.
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Crl.R.P.No.271 Of 2017 (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.
It would also be profitable to quote paras 19 and 20 of the above said Divison Bench Judgment in Binoy K.Mathew v. Godley Dev John & anr. reported in 2015 (4) KHC 243 (DB) which read as follows:
"19. It is submitted by the learned counsel appearing for the petitioners that the complaints involved in these Crl. R.P.s were filed in courts which had jurisdiction, going by sub-section (2) of S.142 of the N.I. Act inserted by the Ordinance No.6 of 2015. The Ordinance is in force. The ordinance promulgated under Article 123 of the Constitution of India shall have the same force and effect as an act of Parliament. The Ordinance has not ceased to operate as provided in sub clause (a) of Clause (2) of Article 123 of the Constitution of India, nor was it withdrawn as provided in sub clause (b) therein. If so, the complaints would have been maintainable before the courts where they were filed, going by the submission made by the counsel. The non obstante clause in S.142A of the N.I. Act, as inserted by the Ordinance, covers cases pending before any court, whether filed before it or transferred to it, before the commencement of the Ordinance and such cases shall be transferred to the court having jurisdiction under sub-section (2) of S.142 of the N.I. Act as if that sub-section had been in force at all material times. Ordinance No.6 of 2015 is clarificatory in nature, clarifying the territorial jurisdiction for trying the cases for dishonour of cheques as indicated in the Statement of Objects and Reasons appended to the Amendment Bill. Sub-section (1) of S.142A of the N.I. Act would make the position clear that it is clarificatory in nature. If so, it is not necessary to direct the courts which ::6::
Crl.R.P.No.271 Of 2017 passed the impugned orders to entertain the complaints and consider the applications for condonation of delay. It would be sufficient if the petitioners are permitted to present the complaints before the courts where they were originally filed.
20. On the presentation of the complaints before the courts where they were originally filed, naturally it would be beyond the period of limitation if the date of such presentation is taken as the material date. S.470 of Cr.P.C. gives ample powers to the Court to exclude the time during which the complainant was prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision. Going by the wording of S.470, a fresh complaint is required. But the principles underlying S.470 of the Cr.P.C. will apply in the peculiar facts and circumstances of the case, even if the same complaint is re-presented. In view of the events which took place after the judgment of the Supreme Court in Dashrath Rupsingh Rathod's case (supra) and the position as clarified in the N.I. Amendment Ordinance 2015 (No.6 of 2015), as well as the direction given by the Supreme Court in paragraph 22 of the Dashrath Rupsingh Rathod's case (supra), we are of the view that the petitioners can be permitted to present the complaints in the respective courts where they were originally filed. On such presentation, the Courts shall treat the same having been filed on the date on which the respective complaint was originally filed.
The petitioners shall present their respective complaint in the proper Court namely, the Court where it was originally filed, within one month from today." 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, especially in view of the explanation thereunder, that with reference to an offence under Sec.138 of the N.I.Act, 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. Further it was held in para 16 of the above said judgment of the Apex Court that since the dishonoured cheque in question in that case was presented for encashment at the collection bank of the complainant at Indore, the Judicial First Class Magistrate Court, Indore, ::7::
Crl.R.P.No.271 Of 2017 would have the territorial jurisdiction to take cognizance of the proceedings initiated by the complainant therein, after promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015, and 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. Accordingly, it is now beyond dispute that after initial return of the complaint by the Additional Chief Judicial Magistrate Court, Ernakulam, on 10.12.2014, pursuant to the Apex Court judgment dated 1.8.2014, the complaint was actually re- presented before the Magistrate Court at Aluva, on 16.2.2015 with an application to condone the delay of 25 days in re-presenting the complaint. The date of such re-presentation, that is 16.2.2015, is obviously much before the coming into force of the amended ordinance which came into force on 15.6.2015. Therefore, the petitioner is entitled to get the benefit of the direction issued by the Division Bench in paras 19 & 20 of Binoy K.Mathew's case (supra). Accordingly, the impugned orders dismissing the delay condonation application as well as the impugned order consequently dismissing the complaint on the ground of delay are set aside. The Judicial First Class magistrate Court- II, Aluva, will ensure that the complaint is returned to the complainant ::8::
Crl.R.P.No.271 Of 2017 within 2 weeks from the date of production of a copy of this order. The complainant shall, thereafter, ensure that the same is filed within 30 days from the date of such return before the competent Magistrate having jurisdiction in terms of Sec.142(2) of the Negotiable Instruments Amendment Ordinance Act, 2015.
With these observations and direction, the Crl.R.P. stands finally disposed of.
ALEXANDER THOMAS, Judge.
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