Kerala High Court
Sree Gokulam Chit & Finance Co. (Pvt) Ltd vs Judy M Jose
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939
OP(Crl.).No. 223 of 2017 (Q)
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ST.NO.2456/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA
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PETITIONER/COMPLAINANT:
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SREE GOKULAM CHIT & FINANCE CO. (PVT) LTD,
GOKULAM TOWERS, NO.66, ARCOT ROAD, CHENAI,
REP. BY IT'S DIVISIONAL BUSINESS MANAGER,
K.M.LOHITHAKSHAN, S/O.K.KRISHNAN.
BY ADVS.SRI.K.S.BABU
SRI.BABU SHANKAR
SMT.N.SUDHA
RESPONDENTS/ACCUSED & STATE:
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1. JUDY M JOSE,
MAYFAIR HOTEL, BYPASS ROAD,
PALARIVATTOM, ERNAKULAM,
KOCHI-682 025
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31
R1 BY ADVS. SRI.JOHNSON MANAYANI
SRI.BENHUR JOSEPH MANAYANI
SRI.JEEVAN MATHEW MANAYANI
R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
OP(Crl.).No. 223 of 2017 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER AS
C.C.NO.8767/2003 BEFORE THE XVII METROPOLITAN MAGISTRATE
COURT AT SAIDAPET, CHENNAI
EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 24.2.2015 IN C.C.NO.8767/2003
OF THE COURT OF THE METROPOLITAN MAGISTRATE, FAST TRACK
COURT-III, SAIDAPET, CHENNAI-15
EXHIBIT P3 TRUE COPY OF THE MEMO FILED BY THE COUNSEL FOR THE
PETITIONER ON 27/01/2017
EXHIBIT P4 THE TRUE COPY OF THE ORDER DATED 27.1.2017 ISSUED BY THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA IN
S.T.NO.2456/2015
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.S.TO JUDGE
sts
ALEXANDER THOMAS, J.
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O.P(Crl.).No.223 of 2017
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Dated this the 1st day of August, 2017
J U D G M E N T
The aforecaptioned Original Petition has been filed by invoking the enabling powers conferred on this Court under Art.227 of the Constitution of India, with the following prayers:
"i) receiveDirect Exhibit.the complaint on file and transfer the case to the Court of Judicial First Class Magistrate Court-I at Aluva to Pl XVII Metropolitan Magistrate, Saidapet, Chennai which has jurisdiction to try and dispose of the case.
ii) Declare that the Judicial First Class Magistrate Court-I at Aluva is bound to receive the complaint back when it was represented and transferred the same to the Metropolitan Magistrate Court, Past Track Court-IIl, Saidapet, Chennai 15, the Court having jurisdiction to entertain Exhibit Pl complaint, try the case and dispose of the same in view of section 142A of the Negotiable Instruments Act
iii) Award cost of this petition And
iv) Grant such other and further reliefs which this Hon'ble Court may deem fit to grant in the facts and circumstances of the above case"
2. Notice to R-1 (accused) was taken out in this case through special messenger and the same was returned with the endorsement, "place of address has been closed down". Accordingly, this Court as per order dated 7.4.2017 had ordered that P.P. should ensure that a proper and effective enquiry is conducted by the Inspector of Police/competent officer concerned to ascertain the present correct address or last known O.P(Crl.)223/17 - : 2 :-
address of R-1 and furnish the same along with a statement of the said officer. Thereafter, the petitioner had filed an application for substituted service notice on R-1 showing the last known address of the accused. Thereupon, this Court had passed order dated 16.6.2017 directing that the Inspector of Police of the area concerned in Wayanad district will conduct a proper and effective inquiry to find out whether the address mentioned in the order is the permanent address of R-1 and whether that is the last known address of that party. In compliance with that direction issued on 16.6.2017, the Inspector of Police of Mananthavady, Wayanad district, had filed statement dated 3.7.2017 through memo dated 4.7.2017 of the learned Prosecutor, wherein it has been stated that his inquiry has revealed that the 1st respondent (Sri.Judy M.Jose) has resided at Choottakadavu, near Mananthavady, for 10 years and after partition of the property in Mananthavady, the family members of that family went to different place and that the brother of the 1st respondent one Sri.Jomon, S/o.Joseph, Manimala House, is now residing at Chevayoor, Kozhikode, and that the said brother of R-1 has intimated that the 1st respondent is now in the USA for the last 17 years and further the said brother of the 1st respondent has also informed that the 1st respondent has resided with their family when they were in Mananthavady and that as he is abroad for a long period, he has now no permanent residential address in Kerala, etc. Thereafter, in tune with the provisions contained in Secs.64 and 65 O.P(Crl.)223/17 - : 3 :-
of the Code of Criminal Procedure, this Court had passed order dated 7.7.2017 directing that the petitioner herein will take out notice to R-1 through the Inspector of Police of the area concerned in the following addresses:
1). Sri.Jude M.Jose, S/o. Joseph,
Manimala House, Choottakadav,
Near Mananthavady, Wayanad District.
2). Sri. Jude M.Jose, C/o.Sri.Jomon, aged 57 years,
S/o. Joseph, Manimala House,
(Mob.No.98470 12301)
Chevayoor, Kozhikode.
It was further directed in that order that the Police officials concerned will ensure that the said notice is served by affixture in the first address in the presence of the witnesses and it should be personally served to Sri.Jomon, S/o.Joseph, in the abovesaid latter address in the presence of witnesses. It was also directed that the said notice should also be served by affixture in the said "Care of" address in the presence of the witnesses.
The Police official concerned was directed to file a report in the matter after completing the notice process.
3. Now the Inspector of Police, Mananthavady, has submitted a report dated 26.7.2017 before this Court stating that the said notice has been served through affixture in House No.33/3052 in Kozhikode Corporation through Police official concerned on 26.7.2017 in the presence of witness. It is pointed out that the said notice is served in the said address in House No.33/3052 in Kozhikode Corporation is the above O.P(Crl.)223/17 - : 4 :-
referred latter address at Chevayoor, Kozhikode. Accordingly, it is ordered that the substituted service notice on R-1 has been duly served.
4. Coming to the facts of this case, it is seen that Ext.P-1 is the complaint dated 16.5.2003, filed by the petitioner, in which the 1st respondent herein has been arrayed as accused for offence punishable under Sec. 138 of the N.I. Act. The dishonoured cheque in question dated 4.3.2003 is for Rs.10,32,087/-, which was drawn on Catholic Syrian Bank, Pattupurakkal branch, Thrikkakkara, Kochi-682 021. The complainant's collection bank is stated to be Catholic Syrian Bank, Kodambakkam Branch, Chennai - 400 024. Ext.P-1 complaint was originally filed before the Court of XVII Metropolitan Magistrate, Saidapet, Chennai, and the said court had numbered the complaint as C.C.No. 8767/2003. It is also pointed out that the said complaint was made over to the Metropolitan Magistrate's Court (Fast Track Court-III), Chennai -15 on 18.3.2013.
5. Subsequently as per judgment dated 1.8.2014 rendered by the Apex Court in the case in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. reported in (2014) 9 SCC 129, it was held by the Apex Court that in terms of Sec.177 of the Cr.P.C., place or situs where Sec.138 complaint is to be filed is not of the choice of the complainant and that the territorial jurisdiction is restricted to court within whose local jurisdiction the offence was committed, which in context of offence under O.P(Crl.)223/17 - : 5 :-
Sec. 138 of the N.I. Act is where the cheque is dishonoured by the bank, on which it is drawn. However, the Apex Court had further ordered that in cases where complaints have been filed in a court other than the Magistrate court having territorial jurisdiction over the drawee bank, should be returned to the complainant by those courts to be re- presented before the proper court within 30 days. However, the Apex Court further made a beneficial direction that those cases where post summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Sec.145(2) of the N.I. Act could continue at that place. It is pointed out that in the instant case, the case had not reached the post summons evidence stage of Sec. 145(2). It appears that accordingly the Metropolitan Magistrate Court (Fast Track Court-III), Saidapet, Chennai, had returned the complaint to the complainant on 24.2.2015 for being filed before the proper court. Ext.P-2 is the order dated 24.2.2015 issued by the said Metropolitan Magistrate Court (Fast Track Court-III), Saidapet, Chennai, wherein it is directed that in view of the abovesaid judgment dated 1.8.2014 in C.A.No.2287/2009 passed by the Apex Court in D.R.Rathod's case supra, the said magistrate court has no territorial jurisdiction to try the case and hence the case filed was returned to the complainant for filing before the proper court, etc.
6. It is also brought to notice of this Court that as the drawee O.P(Crl.)223/17 - : 6 :-
bank is situated at Pattupurakkal, Thrikkakkara, the Magistrate's court having jurisdiction over that area is the Judicial First Class Magistrate's Court-I, Aluva. Thus the complainant had refiled Ext.P-1 complaint on 23.5.2015 before the Judicial First Class Magistrate's Court-I, Aluva. The complaint was renumbered by the Magistrate's court at Aluva as S.T.No. 2456/2015.
7. Later, the provisions contained in the Negotiable Instruments Act have been amended with effect from 15.6.2015, as per which sub section (2) of Sec. 142 and Sec. 142A have been inserted, which read as follows:
"Sec. 142: Cognizance of offences.-(1) 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 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.
Judicial(c) no court inferior to that of a Metropolitan Magistrate or a 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 branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or O.P(Crl.)223/17 - : 7 :-
(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.
(1) NotwithstandingValidation Sec.142A: for transfer of pending cases.-
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.
Section(2) 142 orNotwithstanding sub-section (1),anythingthe payee or the holder in due contained in sub-section (2) of where 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 (or.d 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."
As per the provisions contained in Sec.142(2)(a), the offence under Sec. 138 shall be inquired into and tried only by the court in whose territorial jurisdiction, 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, etc. Further Sec. 142A(1) O.P(Crl.)223/17 - : 8 :-
mandates that notwithstanding anything contained in the Cr.P.C. or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of Sec.142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under that Act, as if that sub- section had been in force at all material times. The counsel for the complainant thereafter had filed Ext.P-3 memo dated 27.1.2017 before the Magistrate court at Aluva, stating that as per the provisions of the Negotiable Instruments (Amendment) Second Ordinance, 2015, the complaint shall be filed before the Judicial First Class Magistrate's Court concerned where the collection bank of the complainant is situated. It was pointed out that since the Magistrate court having territorial jurisdiction over the collection bank (Catholic Syrian Bank, Kodambakkam, Chennai) is the Metropolitan Magistrate's Court-XVII Saidapet, Chennai, the case may be transferred to that court in view of the amended provisions contained in Sec.142 and in Sec. 142A, etc.
8. The Magistrate Court at Aluva had passed the impugned Ext.P-4 order dated 27.1.2017, wherein it is stated that the said court has no jurisdiction and that the complaint is returned to the complainant for presentation before the proper court. The complainant would point out that he had presented Ext.P-1 complaint again before the Metropolitan Magistrate Court-XVII, Saidapet, Chennai (which has O.P(Crl.)223/17 - : 9 :-
territorial jurisdiction over the collection bank). But that the Registry of the said court has refused to take the papers on record and the counsel for the complainant was given to understand that as per the practice followed by the Magistrate courts in Tamil Nadu, such complaints are to be transmitted directly from the previous court concerned and that case papers which are directly presented or re-presented by the parties, will not be accepted. It is in this back ground that the petitioner has sought to challenge Ext.P-4 with a direction to the court at Magistrate to take back Ext.P-1 complaint and then transmit the same to the Metropolitan Magistrate Court-XVII, Saidapet, Chennai, which is having territorial jurisdiction over the collection bank.
9. Heard Smt.N.Sudha, learned counsel appearing for the complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent respondent State.
10. Though notice has been duly served on the 1st respondent (accused) through substituted service notice, there is no appearance for that party. However, Sri.Arun Thomas, learned Advocate of this Court has appraised that he had been instructed to submit on behalf of Sri.Jomon, aged 57, S/o.Joseph, Manimala House, House No.33/3052, Chevayoor, Kozhikode, (who is the brother of R-1 accused) that substituted service notice on R-1 (accused) has been affixed in the aforementioned address of Sri.Jomon and that the 1st respondent O.P(Crl.)223/17 - : 10 :-
(accused) (who is the brother of Sri.Jomon) has been in USA for the last 17 years. The submission made on behalf of Sri.Jomon, the brother of R-1 accused , is placed on record.
11. The issue that crops up for consideration is as to the legality and correctness of Ext.P-4 order and as to the orders that are to be passed in this petition.
12. A Division Bench of in the judgment in Binoy K.Mathew v.
Godley Dev John & Anr. reported in 2015 (4) KHC 243 (D.B) has held in para 19 thereof that the non obstante clause in S.142A of the NI 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 NI Act as if that sub- section had been in force at all material times. It was thus held that 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 and Sub-section (1) of S.142A of the NI Act would make the position clear that it is clarificatory in nature and if so, 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 and it would be sufficient if the petitioners are permitted to present the complaints O.P(Crl.)223/17 - : 11 :-
before the Courts where they were originally filed. It was further held by the Division Bench in para 20 of the decision in Binoy K.Mathew's case supra, that in view of the provisions contained in the Amendment Ordinance, the complainant can be permitted to present the complaint in the respective Courts, where they were originally filed and 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 therein were directed to present their respective complaints in the proper court, namely, the court where it was originally filed, within one month from the date of the judgment.
13. After considering the abovesaid amended provisions in Sec.142(2) and Sec. 142A (1) of the Negotiable Instruments Act, the Apex Court in the judgment in Bridge Stone India (P) Ltd. v. Inderpal Singh, reported in (2016) 2 SCC 75 has held that a perusal of the amended Sec.142(2), extracted above, leaves no room for any doubt, especially in view of the Explanation thereunder, that with reference to an offence under Sec.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 drawer maintains an account, would be determinative of the place of territorial jurisdiction. It was further held in paras 15 and 16 of the abovesaid decision in Bridge Stone India (P) Ltd's case supra that the words ". ... ..as if that sub-section had O.P(Crl.)223/17 - : 12 :-
been in force at all material times..." used with reference to Sec.142(2) as employed in Sec.142A(1) gives retrospectivity to the provision, etc.
14. The Division Bench in the above referred judgment in Binoy K.Mathew's case supra dealt with cases where the complaints were not re-presented within the 30 days time limit stipulated in the Apex Court in Dashrath Rupsingh Rathod's case supra, but where re-presented before the Magistrate court concerned before the coming force of the amended provisions of the N.I. Act with effect from 15.6.2015. In such cases, it was held by the Division Bench that nothing in the judgment of the Apex Court in Dashrath Rupsingh Rathod's case supra would preclude the Magistrate court from exercising their statutory powers conferred under Sec. 142 (1) (b) proviso and Sec.470 Cr.P.C. for delay condonation and time exclusion. However, their Lordships of the Division Bench in Binoy K Mathew's case supra held in paras 19 and 20 thereof that in view of the amended provisions contained in Sec.142(2) and Sec. 142A(1), there is no necessity to take recourse to the process of delay condonation and time exclusion and that in such cases, the petitioners can be permitted to present the complaints in the respective courts, where they were originally filed and that on such presentation, the court shall treat the same as having been filed on the date on which the respective complaint was originally filed. In the instant case it is not in dispute that after the return of the complaint by the Metropolitan Magistrate (Fast Track-III), O.P(Crl.)223/17 - : 13 :-
Saidapet, Chennai, as per Ext.P-2, the complainant had re-presented Ext.P-1 complaint before the Judicial First Class Magistrate's Court-I, Aluva, (which is having territorial jurisdiction over the drawee bank area), on 25.3.2015. Therefore, such re-presentation of the complaint is well before the coming into force of the amended provisions effective from 15.6.2015. This Court has perused the original of the returned case papers made available for the perusal of this Court, which disclose that the complaint was re-presented before the Magistrate court at Aluva on 25.3.2015. It was thereafter, that the amended provisions of the N.I. Act had come into force with effect from 15.6.2015 and as per the provisions of the Amended Ordinance/Act, the court having territorial jurisdiction is the Judicial First Class Magistrate's Court having territorial jurisdiction over the drawee bank. In other words, the complaints have to be re-
presented before the original court, viz., Metropolitan Magistrate Court- XVII, Saidapet, Chennai. The complainant had filed Ext.P-3 memo requesting the Magistrate court at Aluva to transmit the case papers to the said court at Chennai. However, the Magistrate Court at Aluva, by the impugned Ext.P-4 order dated 27.1.2017 has returned back the complaint and the case papers to the complainant for re-presentation before the proper court. It appears that in the State of Kerala, the accepted practice is that such complaints are returned back to the complainant for re-presentation before the proper court. The learned O.P(Crl.)223/17 - : 14 :-
counsel for the petitioner submits that the complainant, in pursuance of Ext.P-4, had re-presented the complaint before the Metropolitan Magistrate Court-XVII, Saidapet, Chennai, but that the officials of the said court had refused to take the case papers on file on the ground that the practice in the Magistrate court in Tamil Nadu is that in such cases, the case papers are to be transmitted directly from the previous court to the proper court. As it is beyond dispute that consequent to Ext.P-2 order dated 24.2.2015, the complainant had presented his complaint before the Magistrate Court at Aluva on 25.3.2015. It is pointed out by the petitioner that though Ext.P-2 order was rendered on 24.2.2015, the case papers were actually handed over to the complainant much later and immediately after receiving the case papers, he had re-presented the complaint before the Magistrate's Court at Aluva on 25.3.2015, which is very much within the time limit of 30 days stipulated by the Apex Court in D.R.Rathod's case supra. That apart, the Division Bench of this Court in the decision in Binoy K.Mathew's case supra has clearly held that nothing in the said judgment would preclude the Magistrate Courts from exercising the powers of delay condonation and time exclusion as envisaged in Sec. 142(1)(b) proviso and Sec.470 of the Cr.P.C., in cases where such complaints have not been filed within 30 days' time limit, etc. Therefore, in the instant case, undoubtedly the complainant has followed the letter of the law and he cannot be penalised any further.
O.P(Crl.)223/17 - : 15 :-
Therefore, it is highly imperative in the interest of justice that the extra ordinary powers conferred on this Court under Sec.482 of the Cr.P.C. are invoked, so as to effectuate the provisions contained in Sec. 142(2) read with Sec.142A (1) and in order to ensure that ends of justice are adequately met. If this Court is convinced that necessary intervention is not made under Sec. 482 of the Cr.P.C., then it would amount to failure of justice as far as the petitioner is concerned.
15. Accordingly, it is ordered that the impugned Ext.P-4 order dated 27.1.2017 passed by the Judicial First Class Magistrate's Court-I, Aluva, will stand set aside. The petitioner will present the case papers in relation to Ext.P-1 complaint before the said Magistrate's Court at Aluva, along with a certified copy of this order, who will then then take back the cases papers and then transmit the case papers to the Metropolitan Magistrate Court-XVII, Saidapet, Chennai, without any further delay. The Magistrate's Court at Aluva, will transmit the entire case papers in relation to Ext.P-1 complaint along with the certified copy of this judgment to the Metropolitan Magistrate Court-XVII, Saidapet, Chennai.
The said Metropolitan Magistrate Court-XVII, Saidapet, Chennai will examine whether it has territorial jurisdiction over the collection bank area (Catholic Syrian Bank, Kodambakkam Branch, Chennai-400 024) and then proceed with the complaint, in accordance with law. In case the Magistrate Court having territorial jurisdiction over the abovesaid O.P(Crl.)223/17 - : 16 :-
collection area happens to be another Magistrate's Court, then the Metropolitan Magistrate Court-XVII, Chennai, will ensure that the case papers are transmitted to such court. Intimation should be given by the said Magistrate Court to the petitioner so that the said party can make arrangements for prosecution of their case.
With these observations and directions, the O.P(Crl.) stands finally disposed of.
sdk+ ALEXANDERSd/-
THOMAS, JUDGE
///True Copy///
P.S. to Judge