Jammu & Kashmir High Court - Srinagar Bench
Mubashir Manzoor Bhat vs Rouf Jeelani Parray on 17 May, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no.:
Cr. MC no. 141/2016 Date of decision: 17.05.2018
Cr. MP no.01/2016
Mubashir Manzoor Bhat v. Rouf Jeelani Parray
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For Petitioner: Mr. Asif Ahmad Bhat, Advocate;
For Respondent: Mr. Sheikh Mushtaq, Advocate.
Whether approved for reporting:
i) In law journals: Yes / No
ii) In local print media: Yes / No
___________________________________________________________
1. This petition under Section 561-A Cr. P. C. calls in question the order dated 18.04.2016 passed by the learned Chief Judicial Magistrate, Srinagar in a complaint case filed for the commission of offence under Section 138 Negotiable Instruments Act, on its transfer to the said court from the court of Judicial Magistrate, 1st Class, Budgam. The impugned order reads as under:
"From the perusal of the record it has been observed that the statement of accused has been recorded u/s 242 Cr. P. C. on oath. As per Criminal Procedure Code the statement u/s 242 Cr. P. C. cannot be recorded on oath but has to be recorded without oath. As said error goes into the root of the case as such said error is rectified by recording the statement of the accused u/s ________________________________________ Cr. MC 141/2016 Page 1 of 10 242 Cr. P. C. The accused in his statement has admitted to have issued two cheques for an amount of Two Lakhs and has also admitted that cheques have been bounced and has never paid the said amount. Accused has further stated that he has not received the notice. As per Negotiable Instrument Act and the judgments which have been passed by different courts as well as by Apex Court as soon as the accused gets the knowledge of the notice about the cheques in the court then the notice is presumed to be complete in case the accused fails to pay the cheque amount within fifteen days time. As accused has already knowledge about the notice and has not paid the amount within fifteen days which reveals that notice u/s 138 Negotiable Instrument Act is also complete. Accused has only denied to have any liability against the complainant. As per Sec. 138 of Negotiable Instruments Act presumption is that a person who issued a cheque is presumed to have issued for discharge of any debt or liability. As the accused denies to have any liability towards the complainant as such he has to rebut the said presumption. Hence accused is directed to lead evidence in support of his case that there is no liability to be discharged by the accused towards the complainant. Hence accused shall furnish the list of witnesses within 10 days time and in case the accused wants the assistance of the court or wants to summon the witnesses through court then he shall deposit the diet expenses within ten days time..."
2. It may be mentioned here that the complaint had originally been filed before the Judicial Magistrate, 1st Class, Budgam. That court, on recording the statement of the complainant and one of his witnesses, had taken cognizance of the offence under Section 138 of N. I. Act and summoned the accused by order dated 24.07.2014. On appearance of the accused, his statement under Section 242 Cr. P. C. was recorded on 21.10.2014 wherein he admitted to have issued the cheques and identified his signatures thereon. Thereafter, on 20.12.2014, the accused on the basis of the law laid down by the Supreme Court in Dashrath Rupsingh Rathod v State of Maharashtra, (2014) 9 SCC 129, made an application before ________________________________________ Cr. MC 141/2016 Page 2 of 10 the learned Judicial Magistrate seeking return of the complaint to the complainant. That application was dismissed by the learned Judicial Magistrate, Budgam, by order dated 02.05.2015, on the ground that the judgment of the Supreme Court was prospective in effect and that it laid down that the category of complaint cases where proceedings had gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred from the court originally possessing territorial jurisdiction to the court where it was pending. The learned Magistrate in its aforesaid order further observed that since the complaint had been filed on 24.07.2014 and on the same day the statement of complainant and his witness was recorded, and cognizance was taken, so the judgment was not applicable in the case, and that the court had jurisdiction to decide the case. Rejecting the application filed by the accused, the case was ordered to be put up for evidence of the complainant on 18.05.2015.
3. Against the aforesaid order dated 02.05.2015, the accused preferred a petition under Section 561-A Cr. P. C. before this Court, pleading that the learned Judicial Magistrate, Budgam, had no jurisdiction to entertain and try the complaint as the cheques had been allegedly presented before the J&K Bank Ltd, Branch Office, Aircargo, Srinagar, and HDFC Bank Ltd. Baghat, Barzulla, Branch Srinagar. The said petition was disposed of by a Co-ordinate Bench of this Court by order dated 15.09.2015 on the agreement of the learned counsel for the parties that the complaint may be transferred from the files of learned Judicial Magistrate, Budgam, to the court of Chief Judicial Magistrate, Srinagar. The Court, accordingly, ordered transfer of the complaint to the court of learned Chief Judicial Magistrate, Srinagar with liberty to further transfer it to any competent court of jurisdiction at Srinagar. On receipt of the file from the court of ________________________________________ Cr. MC 141/2016 Page 3 of 10 Judicial Magistrate, 1st Class, Budgam, the learned Chief Judicial Magistrate, Srinagar passed the order dated 18.04.2016 quoted above.
4. The accused has challenged the aforesaid order through the medium of the present 561-A petition on the grounds that there is no bar contained in any provisions of the Code of Criminal Procedure to record the statement of the accused under Section 242 Cr. P. C. on oath and that since the statement of the accused under Section 242 Cr. P. C. stood recorded by the Judicial Magistrate, 1st Class, Budgam, the order in that regard could not be recalled. Furthermore, since the learned Judicial Magistrate, 1st Class, Budgam, had directed the complainant to produce witnesses, such order, too, could not be recalled by the Chief Judicial Magistrate Srinagar, with direction to the accused to produce list of witnesses to prove that the cheques had not been issued in discharge of any liability.
5. Heard learned counsel for the parties and considered the matter. Reiterating the grounds taken by him in the petition, the learned counsel for the petitioner submitted that there is no power of review available to the trial court under the Code of Criminal Procedure to recall its orders. The learned counsel in this regard cited and relied upon the judgments of the Supreme Court in Adalat Prasad v Rooplal Jindal, AIR 2004 SC 4674, and Subramanium Sethuraman v State of Maharashtra, AIR 2004 SC 4711, and a judgment of this Court in Bashir Ahmad Wani v State, 2002 SLJ 593.
6. Having considered the matter, I think that no exception can be taken to the law laid down in the aforesaid judgments. However, the real point involved is not whether the learned Chief Judicial Magistrate, Srinagar, ________________________________________ Cr. MC 141/2016 Page 4 of 10 could recall the earlier orders passed by the learned Judicial Magistrate, 1st Class, Budgam, recording the statement of accused-petitioner under Section 242 Cr. P. C. or directing production of evidence by the petitioner. The real point is whether the proceedings taken by the learned Judicial Magistrate, 1st Class, Budgam, were in accordance with law?
7. Admittedly, the petitioner-accused had filed the earlier 561-A Cr. P. C. petition no.127/2015 on the ground that the learned Judicial Magistrate, 1st Class, Budgam, lacked territorial jurisdiction to entertain the complaint. In fact, that was true as per the law laid down by the Supreme Court in Dashrath Rupsingh Rathod v State of Maharashtra (supra), wherein it was laid down that prosecution in such cases can be launched against the drawer of the cheque only before the court within whose jurisdiction the dishonour takes place, except in situations specified in the judgment. The Supreme Court, in this connection, in paragraph 22 of the judgment, inter alia, laid down and clarified as under:
"22. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e., applicability to complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged respondent-accused who may have to travel long distances in conducting their defence and also mindful of the legal implications of proceedings being permitted to continue in a court devoid of jurisdiction, this recourse in entirety does not comment itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, ________________________________________ Cr. MC 141/2016 Page 5 of 10 regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where it is presently pending. All other complaints (obviously including those where the respondent-accused has not been properly served) shall be returned to the complainant for filing in the proper court, in consonance with our exposition of the law. If such complaints are filed/re-filed within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time-bared."
8. The aforesaid pronouncement came from the Supreme Court on 01.08.2014. On that date the Judicial Magistrate, 1st Class, Budgam, had not yet commenced recording of the evidence in the complaint. After the cognizance was taken on 24.07.2014, and summons was ordered to be issued to the accused, the complaint was ordered to be listed on 09.08.2014. That means as on 01.08.2014, the accused had not yet caused his appearance. In fact, perusal of the summons dated 24.07.2014 issued pursuant to the aforesaid order reveals that the Process Server had made a report dated 08.08.2014 that the accused, Mubashir Manzoor Ahmad Bhat, had shifted his residence and, therefore, service could not be completed. Obviously, therefore, the accused had not yet been served with summons as on 01.08.2014. He had ultimately caused his appearance on 30.09.2014. His statement under section 242 Cr. P. C. was recorded on 21.10.2014. So, this was a case where as on 01.08.2014, i.e., the date of judgment in Dashrath Rupsingh Rathod v State of Maharashtra (supra), the case had not yet reached the stage of the recording of evidence and, therefore, in ________________________________________ Cr. MC 141/2016 Page 6 of 10 terms of the law laid down by the Supreme Court, Judicial Magistrate, 1 st Class, Budgam, did not have the territorial jurisdiction to entertain the complaint and/or take cognizance therein. Consequently, in terms of the judgment, the complaint was required to be returned to the complainant for being filed/re-filed before the court of competent jurisdiction at Srinagar within whose territorial jurisdiction the cheques had been dishonoured. Obviously, once the Judicial Magistrate, 1st Class, Budgam, lacked territorial jurisdiction, any proceedings taken or statement(s) recorded by that court were rendered without jurisdiction and illegal and, therefore, inconsequential.
9. Now, the question arises: once the Judicial Magistrate, 1st Cass, Budgam, did not have the territorial jurisdiction to entertain the complaint and/or to take any proceedings therein, whether the agreement of the parties before the High Court in the earlier 561-A Cr. P. C. petition to transfer the complaint to a Magistrate at Srinagar could confer such territorial jurisdiction on the Judicial Magistrate, 1 st Cass, Budgam, so as to validate the proceedings taken by it or the statements of the complainant and/or the accused recorded by it till then? The answer, obviously, has to be no. Equally, the High Court also could not confer any such territorial jurisdiction on the Magistrate in exercise of its inherent power under Section 561-A Cr. P. C. while examining the question of territorial jurisdiction of the Magistrate to entertain a complaint under Section 138 of the N. I. Act except in terms of and subject to the existence of the conditions mentioned in Section 526 Cr. P. C. That, admittedly, has not been the case, for, the basic issue before the High Court concerned the lack of jurisdiction of the learned Magistrate of Budgam and implementation of the law declared by the Supreme Court in Dashrath ________________________________________ Cr. MC 141/2016 Page 7 of 10 Rupsingh Rathod v State of Maharashtra (supra). Naturally, therefore, though the complaint by agreement of the learned counsel was ordered to be transferred from the court of Judicial Magistrate, 1 st Class, Budgam, who, in terms of the above Supreme Court judgment, lacked territorial jurisdiction to entertain it, to the Chief Judicial Magistrate, Srinagar, the High Court, while ordering transfer of the complaint from Budgam to Srinagar, vide order dated 15.09.2015, would not intend to flout the judgment of the Supreme Court in the sense, in any way, to validate the proceedings taken by the learned Judicial Magistrate, 1st Class, Budgam, or the statements recorded by it till then. The order of the Court can at best be read acceptance of the agreement of the learned counsel for the parties for the transfer of the complaint from Budgam to Srinagar, on the ground of that court lacking the territorial jurisdiction, and, therefore, the agreement of the learned counsel legally tantamount actually to a concession / admission on the part of the respondent's counsel of the prayer made in the petition, though this was not clearly mentioned therein; otherwise, the order so passed could not be reconciled with the law declared by the Supreme Court which was the sheetanchor of the petition in question.
10. Consequently, once the case file was received by the learned Chief Judicial Magistrate, Srinagar, pursuant to the order dated 15.09.2015 passed by the High Court in 561-A no.127/2015 in question, the learned Chief Judicial Magistrate had to treat it as a fresh filing/re-filing of the complaint and proceed ahead in accordance with law from that stage of receipt of complaint under Section 200 Cr. P. C., which would include recording of the statement of complainant and his witness(s) etc., ignoring ________________________________________ Cr. MC 141/2016 Page 8 of 10 what the learned Judicial Magistrate, 1st Class, Budgam, had done till he had parted with the file.
11. In the instant case, the learned Chief Judicial Magistrate has only taken the statement of the accused under section 242 Cr. P. C. afresh. In light of my discussion made above, such a course was wholly contrary to the procedure and the law laid down by the Supreme Court in the judgment in question. Actually the complaint had to be taken to have been filed afresh or re-filed in terms of the law declared by the Supreme Court.
12. This Court is conscious of the fact that since the order of the High Court dated 15.09.2015 was not clear in its terms, nor the learned counsel for the parties appear to have brought these vital facts to the notice of the Presiding Officer of the court of Chief Judicial Magistrate, Srinagar, no fault could be found in the learned Chief Judicial Magistrate, Srinagar, in this regard. Now that the matter has been clarified, the proceedings taken so far by the learned Chief Judicial Magistrate, Srinagar, cannot be sustained and are, therefore, set aside with direction to proceed in the matter treating it to have been filed/re-filed on the date the court received the case file from the court of Judicial Magistrate, 1 st Class, Budgam, in terms of the judgment of the Supreme Court in Dashrath Rupsingh Rathod v State of Maharashtra (supra), and proceed therein afresh from the initial stage. It hardly needs a mention that the proceedings taken by the learned Judicial Magistrate, 1st Class, Budgam, were without jurisdiction and, therefore, inconsequential.
13. This petition is, accordingly, disposed of together with the connected Cr. MP. Interim direction, if any, subsisting, shall abide the above decision in the main petition.
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13. Parties are directed to appear before the learned Chief Judicial Magistrate, Srinagar, on 23.05.2018. Registry is directed to return the trial court record to the learned Chief Judicial Magistrate, Srinagar, forthwith.
(Ali Mohammad Magrey) Judge Srinagar, 17.05.2018 Syed Ayaz, Secretary ________________________________________ Cr. MC 141/2016 Page 10 of 10