Bangalore District Court
/ Accused: M/S.Justrans Global ... vs / Complainant: Mr.Navin Babulal ... on 24 September, 2019
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 24th day of September, 2019
PRESENT :-
SMT.PUSHPAVATHI.V, LL.M., PGDPM, (IRPM)
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No.2437/2018
Appellant / Accused: M/S.Justrans Global Logistics
Having office at No.13, 2nd
Floor, Opposite toJasma
Mandir, Erappa Garden,
Austin Town, Bangalore-47.
Rep. by its Proprietor
Sri.K.Gopi
(By Sri.Nagaraj.Y.A., Adv.)
V/s.
Respondent / Complainant: Mr.Navin Babulal Sangani
Proprietrix of M/s.Cargo
Marketing International,
Rep. by his Power of Attorney,
Mr.S.K.Saravana
S/o.Late S.P.Krishna Moorthy
Having office at New No.35,
Old No.16, Angappan Naickan
St. Mannady, Chennai.
(By Sri.B.P.G., Adv.)
2 Crl.A. No.2437/2018
JUDGMENT
This Criminal Appeal under Sec.374(3) has been filed by the appellant/accused aggrieved against the judgment dated 27.10.2018 passed by the learned IX ASC & Addl. MACT Bangalore in C.C. No.55923/2014 convicting and sentencing him for the offence punishable under Section 138 of N.I. Act and pray to acquit him by setting aside the afore said judgment.
2. To avoid confusion, the parties are referred to as complainant and accused as per their ranks in the Court below.
3. The case of the complainant is that, complainant concern is in the business of Freight Forwarding Business and in the course of business, in the month of October 2013, complainant entered into oral agreement with the accused for clearing for clearing and forwarding freight services for for the customer of accused by name M/s.Haat Incinerator India Pvt. Ltd., from Chennai to ASHDOD with the combination of 1 X 40' open top 2 X 40 ' Flat Rack and 3 X 20' general containers under shipping bill number 8352242 dt.08.11.2013 with the master bill of lading number ZIMUMAA6003170 and the accused also agreed to pay a sum of Rs.22,43,742/- to complainant as a service charge as per service invoice number 220-31114590105 dated 19.11.2013. Complainant acted according to the agreement terms but accused did not acted upon the terms of agreement and failed 3 Crl.A. No.2437/2018 to pay service charges to the complainant. Inspite of several reminders made by the complainant over phone and email to make payment, accused instead of paying cash had issued cheque bearing No.88-831 dated 24.12.13 for Rs.22,43,742/- drawn on Canara Bank, Bangalore infavour of complainant and assured to make due payment on or before 24.12.013 and instructed the complainant not to present the cheque until then. Accused sent email on 27.12.2013 to the complainant apologizing for delay in settling payment and requested to bear for 10 days to clear the due payment within time. On 03.01.2014, complainants Manager informed accused through email stating that he will deposit the cheque however, accused wanted additional time for settling due amount and admitted to have received 70% of payment from their customers and decided to pay the dues to the complainant on 04.01.2014. Once again on 0701.2014, accused requested additional time to settle the dues in full along with interest before 17.01.2014. Complainant presented the said cheque for encashment before HDFC Bank, but the same returned with an endorsement "Exceeds Arrangement"
in the account of accused on 18.02.2014. On 22.02.2014, the complainant brought this fact to the knowledge of the accused by issuing demand notice. After service of notice, the accused has neither paid the cheque amount nor replied to the notice. Hence, the complainant had filed the complaint against the accused for the offence punishable under Section 138 of N.I. Act and had prayed to punish the accused with 4 Crl.A. No.2437/2018 maximum sentence and to award compensation to the complainant.
4. The learned Magistrate after taking cognizance, recorded the sworn statement, ordered to register the criminal case against the accused for the offence punishable under Section 138 of N.I. Act. After service of summons, the accused had appeared before the trial court and had enlarged on bail. Thereafter, the Court had recorded the plea of the accused wherein he had pleaded not guilty and claimed to be tried. Thereafter, the learned trial judge had recorded the evidence of complainant as PW-1 and got marked documents at Ex.P.1 to Ex.P.13. Thereafter, statement of the accused under Section 313 of Cr.P.C. wherein, the accused had denied all the incriminating evidence placed against him. He had submitted that he has not got defence evidence and got marked Ex.D1 and case was posted for arguments. On hearing the arguments of both the side, the learned trial judge had convicted the accused for the offence punishable under Section 138 of N.I. Act. Accused was sentenced to pay total fine of Rs.20,00,000/-, in default he shall under go S.I. for six months. It is also ordered that out of the total fine amount, Rs.5,000/- be remitted to the state as fine and remaining amount should be paid to the complainant towards compensation under Section 357 of Cr.P.C.,
5. Challenging the said judgment, the accused is before this court with the following grounds;
5 Crl.A. No.2437/2018The impugned judgment passed by the trail court is illegal, arbitrary and contrary to the material placed on record and the same is liable to be set aside.
The trial court has no jurisdiction to entertain the case, but however without following the Judgment of the Hon'ble Supreme Court in 2015 AIR SCW 6556 between M/s.Bridgestone India Pvt. Ltd., V/s. Inderpal Singh has passed the order dated 27.10.2018 as the payee who is the respondent presented the cheque in question for encashment with his banker Viz., HDFC Bank Ltd., Mylapore, Chennai and hence the said order is illegal, void and needs to be set aside.
The trail court has failed to appreciate the fact that the disputed cheque was never issued by the appellant to Respondent towards discharge of any legally recoverable debt but was issued to him as security that too in the form of signed blank cheque for earlier transactions and the same came to be misused by him by filling the remaining contents of the said cheque and therefore on this ground alone, the impugned judgment passed by the trial court needs to be set aside.
With these grounds pray to allow appeal and to set aside the judgment of trial court.
6 Crl.A. No.2437/20186. Heard, perused the records.
7. The points arise for my considerations are:
i. Whether the judgment passed by the Court below is erroneous and suffers from infirmity and thereby interference by this court is necessary?
ii. What order ?
8. My findings on the above points are as under:
Point No.i : In the Negative, Point No.ii : As per the final order for the following:
REASONS
9. Point No.i:- Complainant has given his evidence as PW-1 and got marked thirteen documents, in all among them, Ex.P.1 is the Power of Attorney dated 19.03.2014, Ex.P.2 is the Cheque dated 24.12.2013, Ex.P-3 is the Bank memo dated 18.022014, Ex.P.4-Office copy of Legal Notice dated 22.02.2014 along with postal receipts, Ex.P.5-Postal Track Result, Ex.P.6-Inovice dated 19.11.2013, Ex.P.7-E-Mail letter dated 22.02.2014, Ex.P.8-Mate's Receipt dated 18.11.2013, Ex.P.9-Shipping Bill for export dated 13.11.2013, Ex.P.10-Certification by Central Excise Office dated 07.11.2013, Ex.P.11- Certificate by Central Excise Office dated 07.11.2013, Ex.P.12-Ledger Extract, Ex.P.13-Copy of E-Mail Correspondence. Considering these documents and also oral evidence of PW-1, the trial court has convicted the 7 Crl.A. No.2437/2018 accused sentencing him to pay fine total fine of Rs.20,00,000/-, in default he shall under go S.I. for six months. It is also ordered that out of the total fine amount, Rs.5,000/- be remitted to the state as fine and remaining amount should be paid to the complainant towards compensation under Section 357 of Cr.P.C.,
10. However, the appellant has raised that the trial court had no jurisdiction to pass judgment. In this regard he has relied upon a case I 2019(2) Kar.L.R.284 between Gopal Krishna V/s. Addul Bakai, wherein it is held as follows;
"Negotiable Instruments Act, 1881 (as amended y Act 26 of 2015) -
Sections 142(2) and 142-A -
Jurisdiction - Even if the trial proceedings were taken prior to the bringing of the amendment Act and in view of the specific amendment and also the interpretation the sub-section had been in force at all material times and also transferring the cases, even if any judgment, decree or order passed vide Section 142(a), judgment has to be set aside and the same has to be decided in the territorial jurisdiction court - The counsel for Respondent vehemently contended that both of 8 Crl.A. No.2437/2018 them were residing at Sandur i.e., complainant and accused and cheque is only presented at Hospet-Hence, the contention of the revision petitioner cannot be accepted-The said contention als cannot be accepted in view of the amendment brought into Section 142(2) and also Section 142-A of the Act, which is inserted in 2015".
In the present case, the cheque is presented before the HDFC bank which is in Chennai. In view of this, I hold that the trial court had no jurisdiction to pass impugned judgment.
11. Ofcourse the complainant has relied upon two judgments among which one is of our Hon'ble High Court of Karnataka in Crl.P.4035/2015 dated 09.09.2016, wherein it is held that where the evidence is already completed, the case has to be decided by the court where the evidence has been recorded, that the amendment of Section 142 of N.I. Act is prospective in nature in respect of the cases evidence already recorded.
12. The amendment to Section 142 of N.I. Act is of the year 2015. Before the trial court, the evidence has been recorded after 2015. So, even if to apply the judgment of Hon'ble High Court of Karntaka referred above, the trial court had no jurisdiction to pass impugned judgment.
9 Crl.A. No.2437/201813. The accused counsel has also relied upon the judgment in Crl.M.C. No.4958/2014 in a case between Harpreet Singh V/s. State (Govt. of Net of Delhi) & Anr, wherein it is held as follows;
"In the para 22 of the renowed,
Dashrath Rupsingh Rathod's case
(Supra) the apex Court observed that the category of complaint cases where proceedings have gone to the stage of Section 145(2) of the Act or beyond shall be deemed to have been transferred from the Court ordinarily possessing territorial jurisdiction, as clarified therein, to the Court where it is presently pending. Thus, it is only when the cases filed under Section 138 of the N.I. Act have reached the stage of Section 145(2) of the NI Act or beyond thereof that these cases shall continue to be dealt with by the Court where it is already pending trial".
Even in this judgment, it is held that where the cases have been reached the stage of Section 145(2), the courts before which the cases pending have got jurisdiction. But in this case as already said above, at the time of amendment i.e., 2015, the case had not reached the stage of section 145(2) before the trial court. Hence, even to apply this judgment, the trial court had no jurisdiction to pass impugned judgment.
10 Crl.A. No.2437/2018Even otherwise, the judgment of Hon'ble High Court of Karnataka and Hon'ble Delhi High Court are relied upon by the accused counsel are previous to the judgment of our Hon'ble High Court of Karnataka relied upon the complainant counsel. Hence, I rely upon the said judgment relied upon by the appellant and I hold that the trial court had no jurisdiction to pass impugned judgment. Ofcourse, under the circumstances of the case proper direction should be given to complainant and the trial court taking into consideration the cheque amount involved in the case directing the trial court to return the complaint and original cheque to the complainant to file before proper forum and by directing the complainant to take back the complaint and cheque to file before proper forum. For this reason, Ihold that the interference of this court in the impugned judgment warrants. With this, I answer this point No.1 in the negative.
14. Point No.ii:- Having regard to my above observations and findings on point No.i in the negative, I proceed to pass the following:-
ORDER The appeal preferred by the appellant/accused under Sec.374(3) of Cr.P.C is hereby allowed.
Consequently, the judgment passed by the trial Court under the appeal is hereby set aside.11 Crl.A. No.2437/2018
The trial court is directed to return the complaint and original cheque to the complainant with a liberty to file before proper forum.
Complainant is directed to take back the complaint and original cheque from the trial court with a liberty to file before proper forum.
Send back the LCR with the copy of
this judgment to the Court below
forthwith.
(Dictated to the stenographer on the computer, corrected and then pronounced by me in the open Court on this the 24th day of September, 2019).
(SMT.PUSHPAVATHI.V) LXI Addl. City Civil & Sessions Judge, Bangalore City.12 Crl.A. No.2437/2018
24.09.2019 App-NYA Res-BPG Judgment pronounced in the Open Court (vide separate order) ORDER The appeal preferred by the appellant/accused under Sec.374(3) of Cr.P.C is hereby allowed.
Consequently, the judgment passed by the trial Court under the appeal is hereby set aside.
The trial court is directed to return the complaint and original cheque to the complainant with a liberty to file before proper forum.
Complainant is directed to take back the complaint and original cheque from the trial court with a liberty to file before proper forum.
Send back the LCR with the copy of this judgment to the Court below forthwith.
LXI Addl. City Civil & Sessions Judge, Bengaluru City.
13 Crl.A. No.2437/2018