Karnataka High Court
Sri Swaroop Murgod vs Sri Kavil K N on 2 April, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.6848/2016
BETWEEN:
SRI. SWAROOP MURGOD
AGED ABOUT 41 YEARS
S/O SRI B.F. MURGOD
PROPRIETOR,
R/O A-833, 15TH CROSS
10TH MAIN, SAHAKAR NAGAR
BANGALORE-560 092.
... PETITIONER
(BY SRI. M.S. RAJENDRA PRASADA/W
SRI M.S. MUKARRAM, ADVOCATES)
AND:
SRI. KAVIL K N
S/O SRI. NANDAKUMAR K N
R/O 36, 1ST FLOOR
BHEL LAYOUT
R.R. NAGAR, BANGALROE.
... RESPONDENT
(SMT. INDUSRI S. RAO, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO QUASH THE COMPLAINT
BEARING C.C.NO.614/2016 IN CASE TITLE K.N. KANVIL
VS. SWAROOP MURGOD, PEINDING BEFORE THE COURT
OF JMFC, SOMWARPET TALUK, KODAGU DISTRICT AND
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ISSUE AN APPROPROATE ORDER QUASHING ORDER
DATED 23.06.2016 AND 02.07.2016 PASSED IN
C.C.NO.614/2016 IN CASE TITLED, K.N KANVIL VS.
SWAROOP MURGOD, BY THE COURT OF JMFC,
SOMWARPET TALUK, KODAGU DISTRICT.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Respondent herein filed a complaint under Section 200 Cr.P.C. read with Sections 138 and 142 of N.I.Act contending interalia that petitioner - accused had entered into an agreement (MOU) with the complainant and Mr.Sunil Kumar under which accused as producer of teleserial 'Smt.Bhagyalakshmi' had agreed to give sub-contract to the respondent and his partner thereby meaning that complainant would bear all the expenses of pre-production, production and post-production, daily expenditure, daily conveyance, etc. and complainant should pay Rs.15,000/- per episode for the first 50 episodes and profit sharing would be decided on mutual discussion for subsequent episodes. It is further alleged in the complaint that as per the 3 agreement, complainant met all the expenses of production of said teleserial and it was telecasted in 149 episodes in Suvarna Channel from 12.01.2015 and said Channel credited Rs.75,000/- per episode to the current Bank Account of accused which amount paid by the Suvarna Channel should have been paid by the accused to the complainant and so also, incentives paid by said Channel should have been shared between complainant and accused. Complainant is said to have approached the accused in January, 2016 for payment in terms of the agreement dated 07.01.2015 and on the same day, accused had issued post-dated cheque for Rs.38,61,540.85 dated 23.03.2016 drawn on HDFC Bank, Sahakara Nagar subject to final settlement and one more post-dated cheque drawn on the same Bank dated 24.04.2016 for balance amount of Rs.9,16,000/-. It is further alleged that complainant presented the first cheque on 23.03.2016 for encashment through ICICI Bank, Bengaluru which was returned with remarks "payment stopped by drawer". It is stated by the complainant that though accused being contacted, he 4 was informed to re-present the cheque and accordingly, complainant presented both the cheques for encashment through his banker.- Syndicate Bank, Gowdalli branch, Somwarpet Taluk, Kodagu and first cheque was returned on 29.04.2016 with the banker's remarks "payment stopped by the drawer" and second cheque for Rs.9,16,000/- was returned on 29.04.2016 with remarks "funds insufficient". Hence, complainant is said to have issued notice on the accused on 09.05.2016. After due service of notice, accused having not chosen to reply and not complied with the demand made in the notice, complaint in question came to be presented before Principal Civil Judge & JMFC, Somwarpet. Jurisdictional Court and said Court has taken cognizance of the offence on 02.07.2016 and summons have been issued to the petitioner - accused. Hence, petitioner is before this Court for quashing of the complaint and order dated 02.07.2016 taking cognizance of the offence in CC No.614/2016 pending on the file of Principal Civil Judge & JMFC, Somvarpet, Kodagu.
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2. Heard Sri. M. S. Rajendra Prasad, learned Senior Counsel appearing for petitioner and Ms. Indusri. S. Rao, learned Advocate appearing for respondent. Perused the records.
3. Short point that arises for consideration in this petition is:
"Whether Principal Civil Judge & JMFC, Somwarpet, where the complaint under Section 138 of Negotiable Instrument Act, (hereinafter referred to as "N.I. Act' for short ) read with Section 142 of N.I.Act & 200 Cr.P.C. has been filed against the petitioner, is having territorial jurisdiction to try the offence or not?"
4. Section 142 of N.I. Act reads as under:
"142. Cognizance of offences -
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) no court shall take cognizance of any offence punishable under section 6 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138;
Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section
138."
[(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 7 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 (1), 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].
[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, 8 all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments( Amendment) Ordinance, 2015 (Ord. 6 of 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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(3) If, on the date for 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 (Ord. 6 of 2015), before which the first case was filed and is pending, as if that sub-section had been in force at all material times.]"
Section 142-A was inserted by Negotiable Instruments (Amendment) Act, 2015 Act with effective from 15.06.2015.
5. Hon'ble Apex Court while considering the effect of amendment to Section 142 of N. I. Act, in the case of BRIDGESTONE INDIA PRIVATE LIMITED vs. 10 INDERPAL SINGH reported in (2016) 2 SCC 75, has taken note of the larger Bench judgment in the case of DASHRATH RUPSINGH RATHOD VS., STATE OF MAHARASTRA AND ANOTHER reported in (2014) 9 SCC 129 and has held that amended provision vests jurisdiction for initiating proceeding under Section 138 interalia within the territorial jurisdiction of a Court, where the cheque is delivered for collection, through an account of the branch of the bank where payee or holder in due course maintains an account. It has been further held that, insofar as offence under Section 138 is concerned, on the issue of jurisdiction, provisions of Cr.P.C would have to give way for the provisions of N. I. Act since it is a special enactment. Hence, in the facts obtained in said case, Hon'ble Apex Court has opined that post Section 142-A(1), judgment rendered by the larger Bench would not stand in the way of appellant therein, to initiate proceedings before the jurisdictional Magistrate, 1st Class, Indore, since the cheque was presented at Indore and returned at Indore in the said case.11
6. Keeping the above noted principle enunciated by the Hon'ble Apex Court in its authoritative pronouncement in mind, it would disclose that in the case of BRIDGESTONE INDIA PRIVATE LIMITED case, Hon'ble Apex Court has held that amended Section 142 of N.I. Act leaves no room for any doubt, specially in view of the explanation thereunder, which clearly indicates that with reference to an offence under Section 138 of 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. It has been further held that sub-section (1) of Section 142 would not leave any room of any doubt, that insofar as offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, and 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. 12 In fact, Hon'ble Apex Court in the said case, noticed larger Bench judgment of DASHRATH RUPSINGH RATHOD's case cited supra which was very heavily relied upon by learned Senior Counsel, in the instant case has observed that based on Section 142-A(1) (since amendment to Section 142 of NI Act by inserting Section 142-A was brought by way of an Ordinance namely, Second Ordinance, 2015), that post amendment, judgment rendered in DASHRATH RUPSINGH RATHOD case would not stand in the way of appellant continuing the proceedings within the territorial jurisdiction of Indore for initiating and continuing the proceedings emerging from the dishonor of the cheque. In the said case, i.e., BRIDGESTONE INDIA PRIVATE LIMITED's cheque was drawn on Union Bank of India, Chandigarh and presented for encashment at IDBI Bank, Indore and proceedings for dishonour of said cheque was initiated before JMFC, Indore which Court took cognizance of the offence. Hence, it came to be held that J.M.F.C, Indore had territorial jurisdiction. In this background, their 13 Lordships have clearly held that J.M.F.C, Indore had territorial jurisdiction.
7. Keeping the above principles in mind, when the facts on hand are examined, it would clearly indicate that two cheques which are the subject matter of present dispute have been presented by the complainant at Syndicate Bank, Gowdalli Branch, Somwarpet, Kodagu and proceedings and on its dishonour proceedings have been initiated in the Court of Principal Civil Judge & JMFC, Somwarpet alleging that petitioner - accused has committed an offence punishable under Section 138 of NI Act.
8. In the light of aforestated discussion, this Court is of the considered view that Principal Civil Judge & JMFC, Somwarpet, Kodagu having territorial jurisdiction to entertain the complaint has taken cognizance and issued summons to petitioner and there is no infirmity in taking cognizance and issuing process to the petitioner. Hence, contention of the learned 14 Senior Counsel appearing for petitioner with regard to Court of Principal Civil Judge and J.M.F.C -Somwarpet having no territorial jurisdiction cannot be entertained and it is hereby rejected. There is no merit in this petition. Accordingly, petition is hereby rejected.
SD/-
JUDGE *sp