Karnataka High Court
V Narayanan vs Sooryanarayaan Bhat on 19 January, 2023
-1-
CRL.RP No. 93 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL REVISION PETITION NO. 93 OF 2013
BETWEEN:
V NARAYANAN
S/O LATE K.V. KANNAN,
AGED ABOUT 64 YEARS,
R/AT ASHIRWAD, CHERUPPURAM,
NEELESHWARA, HOSADURG TALUK,
KASARAGODU DISTRICT,
KERALA STATE.
...PETITIONER
(BY SRI. K DHIRAJ KUMAR.,ADVOCATE)
AND:
SOORYANARAYAAN BHAT
S/O LATE K.RAMACHANDRA BHAT,
AGED ABOUT 49 YEARS,
OCCU:HILL PRODUCE MERCHANT,
R/AT BALANTHODU RAJAPPURAM,
Digitally
KASARAGODU DISTRICT, KERALA STATE.
signed by
SUMA ...RESPONDENT
Location:
HIGH COURT (BY SMT. ARCHANA K.M., AMICUS CURIAE)
OF
KARNATAKA THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED
24.12.2012 PASSED BY THE SESSIONS JUDGE, KODAGU, MADIKERI
IN CRL.A.NO.46/2011 AND CONFIRM THE JUDGMENT AND SENTENCE
DATED 24.11.2011 PASSED BY THE PRL. CIVIL JUDGE & J.M.F.C.,
MADIKERI IN C.C.NO.831/2005 AND THEREBY ACQUIT THE
PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTION 138
OF N.I.ACT.
-2-
CRL.RP No. 93 of 2013
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the judgment of conviction dated 24.11.2011 passed by the Principal Civil Judge and JMFC, Madikeri, in C.C.No.831/2005 (henceforth 'Trial Court' for short) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (henceforth 'NI Act' for short) and the order of sentence to pay fine of Rs.3,55,000/-. The petitioner, has assailed the judgment dated 24.12.2012 passed by the District and Sessions Judge, Kodagu, Madikeri (henceforth 'Appellate Court' for short) in Crl.A.No.46/2011, by which judgment of conviction passed by the trial Court was upheld.
2. The parties shall henceforth referred as they were ranked before the Trial Court. The petitioner was the accused while the respondent was the complainant.
3. The private complaint filed by the complainant in PCR No.6/2005 which was registered as -3- CRL.RP No. 93 of 2013 CC No.831/2005, discloses that the accused had drawn a cheque bearing No.393249 drawn on Kasargod District Co-operative Bank Ltd, for a sum of Rs.3,50,000-00 in favour of the complainant towards discharge of his lawful debt. When the cheque was presented by the complainant with his banker- Corporation Bank, Karike Branch, it was dishonoured on 02.12.2004 due to "insufficient funds". The complainant caused a notice of demand to the accused on 14.12.2004, which was replied by the accused on 03.01.2005, admitting the issuance of cheque in question and another cheque to be retained as security. He claimed that out of a sum of Rs.3,50,000-00 he had paid Rs.2,00,000-00 on 08.12.2004 and therefore was not liable to pay a sum of Rs.3,50,000-00. The complainant therefore launched prosecution of the accused for the offence punishable under Section 138 of N.I. Act. The Trial Court recorded the sworn statement and took cognizance of the offence punishable under Section 138 of NI Act and issued process to the accused. He appeared and pleaded not guilty and claimed to be tried. The complainant was examined as PW1 and he got marked Exs.P1 to P10. He examined two -4- CRL.RP No. 93 of 2013 other witnesses as PWs.2 and 3. The statement of the accused was recorded under Section 313 Cr.P.C., who denied the incriminating evidence against him and he was examined as DW2 and marked documents as Exs.D1 to 5. He examined a witness as DW1.
4. Based on oral and documentary evidence, the trial Court held that the complainant had proved that the cheque in question was drawn by the accused towards discharge of a lawful debt of Rs.3,50,000-00. It also held that since the cheque in question was dishonoured due to insufficient funds, the accused had committed the offence under Section 138 of N.I. Act. The accused had challenged the jurisdiction of the Court to take cognizance of an offence under Section 138 of NI Act on the ground that the cheque in question was drawn from a Branch situated in Kerala State while the drawee Bank is situated in Karnataka. Therefore, the Court at Karnataka had no jurisdiction to try the case. The trial Court, answered this question against the accused by relying on the judgment of the Apex Court in the case of K.BHASKARAN V. SANKARAN VAIDHYAN BALAN AND ANOTHER reported in 1997(7) SCC -5- CRL.RP No. 93 of 2013 510 and held that the Court at Madikeri had the jurisdiction to try the case as the drawee bank was at Madikeri. It, therefore, rejected the contention of the accused and convicted him for the offence punishable under Section 138 of NI Act and sentenced him to pay fine of Rs.3,55,000/-.
5. Being aggrieved by the judgment of conviction and the order of sentence, the accused filed Crl.A.No.46/2011. Even before the Appellate Court, the accused raised a contention that the Trial Court lacked jurisdiction to try the case in view of the judgment of Apex Court in the case of M/S. HARMAN ELECTRONICS (P) LTD. & ANR. v.
M/S.NATIONAL PANASONIC INDIA reported in AIR 2009 SC 1168. The Appellate Court secured the records of the trial Court and heard the learned counsel for the accused and the complainant and after re-appreciating the evidence, held that the question regarding jurisdiction of the Trial Court was raised at the fag end of the proceedings and in view of Section 462 of Cr.P.C. and as no prejudice was caused to the accused, the Judgment of the Trial Court cannot be assailed on that ground. It relied upon the judgment of the Apex Court in the case of -6- CRL.RP No. 93 of 2013 Rangappa v. Mohan, reported in 2010 Crl.LJ 2871 and held that the evidence on record justified conviction of the accused for the offence under Section 138 of the NI Act and the sentence.
6. Being aggrieved by the judgment of both the Trial and Appellate Court, the accused has filed this revision petition.
7. This Court, on 18.11.2022, appointed Smt.K.M.Archana, learned Amicus Curiae to assist the Court on behalf of the complainant.
8. Learned counsel for the accused vehemently contended that the cheque in question was drawn from an account in a bank that was situated in Kerala and that the complainant and accused were residing at Kerala. He submitted that notice of demand was issued to the accused who was in Kerala and therefore, the offence even if it was committed, it had to be tried by Courts in Kerala State. He submitted that when the trial Court took cognizance of the offence, the judgment of the Apex Court in the case of SHRI ISHAR ALLOY -7- CRL.RP No. 93 of 2013 STEELS LTD. v. JAYASWALS NECO LTD., reported in (2001) 2 SCR 36, held the field as in that case, it was held that the place where the drawer's Bank is situated, that determines the jurisdiction of the Court. He also relied upon the Judgment of the Apex Court in the case of Harman Electronics (supra). He contended that the judgment of the Apex Court in the case of K.Bhaskaran (supra) was in the context of Section 178(d) of Cr.P.C. which was not applicable to a proceedings under Section 138 of NI Act. He contended that the Apex Court in Harman Electronics (supra) had laid out the test to be applied to determine the jurisdiction of the Court dealing with an offence under Section 138 of NI Act. He invited the attention of this Court to Para-14 of the judgment, which reads as under:
"14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, -8- CRL.RP No. 93 of 2013 imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. "
He also relied upon paras-19 and 20, which read as under:
"19. Section 177 of the Code of Criminal Procedure determines the jurisdiction of a court trying the matter. The court ordinarily will have the jurisdiction only where the offence has been committed. The provisions of Sections 178 and 179 of the Code of Criminal Procedure are exceptions to Section 177. These provisions presuppose that all offences are local.
20. Therefore, the place where an offence has been committed plays an important role. It is one thing to say that a presumption is raised that notice is served but it is another thing to say that service of notice may not be held to be of any significance or may be held to be wholly unnecessary."-9- CRL.RP No. 93 of 2013
9. He further contended that the Apex Court in DHASRATH RUPSINGH RATHOD v. STATE OF MAHARASTRA AND ANOTHER reported in (2014) 9 SCC 129 considered the entire question including the correctness of the judgment in the case of K.Bhaskaran (supra) wherein it over-ruled the judgment of K.Bhaskaran and held that the general rules stipulated under Section 177 of Cr.P.C. though applies under Section 138 of NI Act, in such cases, prosecution can be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where offences committed in a single transaction within the meaning of Section 220(1) of Cr.P.C., then the offender may be charged with and tried at one trial for every such offence and any such enquiry or trial may be conducted by any Court competent to enquire into or try any of the offences as provided by Section 184 of Cr.P.C. He invited the attention of this Court to paras-21, 58.1 to 58.7, which read as under:
"21. The interpretation of Section 138 of the NI Act which commends itself to us is that the offence
- 10 -CRL.RP No. 93 of 2013
contemplated therein stands committed on the dishonour of the cheque, and accordingly the JMFC at the place where this occurs is ordinarily where the Complaint must be filed, entertained and tried. The cognizance of the crime by the JMFC at that place however, can be taken only when the concomitants or constituents contemplated by the Section concatenate with each other. We clarify that the place of the issuance or delivery of the statutory notice or where the Complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial jurisdiction of the Complaints even though non- compliance thereof will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general of the NI Act. The vindication of this view is duly manifested by the decisions and conclusion arrived at by the High Courts even in the few cases that we shall decide by this Judgment. We clarify that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situs where the Section 138 Complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn.
58.1 An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque
- 11 -CRL.RP No. 93 of 2013
drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.
58.2 Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138.
58.3 The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue.
(b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and
(c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice.
58.4 The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act.
58.5 The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of
- 12 -
CRL.RP No. 93 of 2013cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant. 58.6 Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured.
58.7 The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof."
10. Per contra, the learned Amicus Curiae, on facts contended that the accused had addressed a letter to the complainant which is marked as Ex.P4 by which, the accused had informed the complainant that a sum of Rs.3,50,000-00 was due by him and he had paid a sum of Rs.2,00,000-00 to the complainant by cash and what was outstanding was Rs.1,50,000-00. She submitted that when the accused
- 13 -
CRL.RP No. 93 of 2013re-iterated this in his reply to the notice of demand issued by the complainant. However, she contended, that the accused did not establish the payment of Rs.2,00,000-00 to the complainant. She, therefore, submitted that the complainant had made out a case that the accused was liable to pay Rs.3,50,000-00 and therefore, conviction of the accused under Section 138 of NI Act was inevitable. She further submitted that the Apex Court while considering the correctness of the judgment in K.Bhaskaran case held in the case of Dashrath Rupsingh Rathod (supra) in para-22 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 accused/respondents 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 commend itself to us.
Consequent on considerable consideration we think it
- 14 -
CRL.RP No. 93 of 2013expedient 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, 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 accused/respondent 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/refiled 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 barred.
11. She submitted that since the question regarding jurisdiction was raised before the trial Court at the stage of arguments in the proceedings, the trial Court was indeed
- 15 -
CRL.RP No. 93 of 2013justified in holding that it had the jurisdiction to take cognizance of the offence, as at that time, the law which held the field was the judgment of the Apex Court in K.Bhaskaran's case, which set out in Para-9 as under:
"9. The High Court of Kerala, on the appeal preferred by the complainant, set aside the order of acquittal and convicted him and sentenced him as aforesaid. Learned single judge of the High Court accepted the version of the complainant that cheque was issued at the shop of PW-3 which is situated within the territorial limits of the Trial Court's jurisdiction. Regarding notice, learned single judge relied on the decision of a Division Bench of the same High Court Kunjan Panicker v.Christudas, (1997) 2 Kerala Law Times 539 wherein it was held that "refusal and even failure to claim in circumstances as here will tantamount to service of notice".
12. She submitted that Section 142A was inserted by Act of 26/15 clarifying that the said Section was inserted " as if that sub-section was in force at all times". She, therefore, submits that even if there is a defect in the jurisdiction, the same stood rectified by introduction of Section 142A of CPC. In this regard, she invited the attention of this Court to the
- 16 -
CRL.RP No. 93 of 2013judgment of the Apex Court in BRIDGESTONE INDIA PVT. LTD., V. INDERPAL SINGH reported in (2016) CriLJ 553, in which case too, the proceeding was initiated in the year 2006 in respect of a cheque that was drawn on Union Bank of India at Chandigarh, while proceedings under Section 138 of NI Act was initiated in Indore. The Apex Court taking into consideration the clarification provided under Section 142A of the NI Act held "we are of the view that the Judicial Magistrate, First Class, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of NI Act. After the promulgation of Negotiable Instruments (Amendment) Second Ordinance, 2015, the words "... as if that Sub-section had been in force at all material times ....." used with reference to Section 142(2) in Section 142A(1) gives retrospectivity to the provision". She also relied upon the judgment of the Apex Court in the case of R.RAJAGOPAL REDDY (DEAD) BY LRS. & ORS. v. PADMINI CHANDRASEKHARAN (DEAD) BY LRS. reported in (1995) 2 SCC 630 to drive home the fact that a clarificatory legislation
- 17 -
CRL.RP No. 93 of 2013is always retrospective. In this regard, she relied upon para-17 of the said judgment, whcih reads as under:
"17. As regards, reason no.3, we are of the considered view that the Act cannot be treated to be declaratory in nature. Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. On the express language of Section 3, the Act cannot be said to be declaratory but in substance it is prohibitory in nature and seeks to destroy the rights of the real owner qua properties held benami and in this connection it has taken away the right of the real owner both for filing a suit or for taking such a defence in a suit by benamidar. Such an Act which prohibits benami transactions and destroys rights flowing from such transactions as existing earlier is really not a declaratory enactment. With respect, we disagree with the line of reasoning which commanded to the Division Bench. In this connection, we may refer to the following observations in 'Principles of Statutory Interpretation', 5th Edition 1992, by Shri G.P.Singh, at page 315 under the caption 'Declara-tory statutes':
"The presumption against retrospective operation is not applicable to declaratory statues. As states in Craies and approved b y the Supreme Court:
- 18 -CRL.RP No. 93 of 2013
"For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error whether in the Statement of common law or in the interpretation of the statutes. Usually, if not invariably, such an Act contains a preamble, and also the word declared' as well as the word enacted"
But the use of the words 'it is declared' is not conclusive that the Act is declaratory for these words may, at times be used to introduce new rules of law and the Act in the later case will only be amending the law and will not necessarily be retrospective. hi determining, therefore, the nature of the Act, regard must be had to the substance rather the to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so when the pre-amended provision was clear and unambiguous. And amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature
- 19 -
CRL.RP No. 93 of 2013will have retrospective effect are therefore if the principal Act was existing law when the constitution came into force the amending Act also will be part of the law.
In Mithilesh Kumari v. Prem Bihari Khare, Section 4 of the Benami Transactions (Prohibition) Act, 1988 was it is submitted wrongly held to be an Act declaratory in nature for it was not passed to clear any doubt existing as to the common law or the meaning or effect of any statute. The conclusion however that Section 4 applied also to past benami transactions may be supportable on the language used in the Section. "
13. Learned Amicus Curiae, therefore, contends that question regarding jurisdiction is now well settled in view of insertion of Section 142A based upon the judgment in the case of Dashrath Rupsingh Rathod (supra). Further, she contends that the question regarding jurisdiction raised by the accused in the facts of this case is purely academic and does not merit any consideration now. Therefore, she contends that there are no reasons to interfere with the judgment of conviction passed by the trial Court.
14. I have considered the submissions made by the learned counsel for the accused and learned Amicus Curiae for
- 20 -CRL.RP No. 93 of 2013
the complainant. I have also perused the records of the Trial Court, its Judgment as well as the judgment of the Appellate Court.
15. The trial Court took cognizance of the offence punishable under Section 138 of NI Act on 18.01.2005. It is not in dispute that the cheque in question was drawn from a bank which was situated in Kerala State while it was presented for encashment with a bank within the State of Karnataka.
Both the accused and complainant were residents of Kerala. A notice of demand was issued from Madikeri in Karnataka to the accused who was then residing in Kerala and the notice was served upon the accused in Kerala. The accused did issue a reply admitting his liability to an extent of Rs.3,50,000-00 but claimed that he had paid a sum of Rs.2,00,000-00 on 8.10.2004. Since the accused failed to pay the amount covered under the cheque, proceedings were initiated for prosecution of the accused for the offence punishable under Section 138 of NI Act. The issue regarding jurisdiction was raised before the trial Court at the stage of addressing arguments. It was contended before the trial Court that in view of the judgment of the Apex
- 21 -CRL.RP No. 93 of 2013
Court in M/s. Harman Electronics' case, the trial Court did not have the jurisdiction to try and adjudicate the instant complaint punishable under Section 138 of NI Act as the drawer Bank was situated at Kerala. The trial Court, after considering the law which held the field as on that date in K.Bhaskaran case (supra) rejected the contention of the accused and held that the Court had jurisidiction to try the case. Learned counsel for the accused claims that the judgment of the Apex Court in K.Bhaskaran case (supra) was based on Section 178(d) of Cr.P.C. while the jurisdiction to try the offence under Section 138 is set out under Section 142(b) of NI Act. He, therefore, contended that the trial Court never had the jurisdiction to try the case filed by the complainant. He contended that an offence under Section 138 of NI Act is committed only when the drawer fails to pay the amount after receipt of notice of demand issued by the drawee. He, therefore, contended that in the present case, the notice of demand was served upon the accused at Kerala and therefore, it is only the Court at Kerala that had the jurisdiction to try the case. He also trenched his case on the judgment of the Apex
- 22 -CRL.RP No. 93 of 2013
Court in the case of Dashrath Rupsingh Rathod (supra) and contended that the Full Bench of the Apex Court had over-ruled the judgment of K.Bhaskaran's case and therefore, jurisdiction of the trial Court in the present case was clearly ousted.
16. The Hon'ble Supreme Court in DASHRATH RUPSINGH RATHOD'S case (supra) took cognizance of the difficulty that would be caused to litigants, in cases where the trial had reached the stage of cross examination and therefore, held that those cases where summoning and appearance of the accused, recording of evidence had commenced as envisaged in Section 145(2) of the NI Act would not be affected. However, in respect of all other cases, the cases had to be tried by the Court at the place where the drawer bank is situated and therefore directed that such cases shall be returned for re-filing within 30 days. However, Dhasrath Rupsingh Rathod's case (supra), did not deal with a case where the trial was concluded and judgment was passed not only by the Trial Court but affirmed by the appellate Court. In the instant case, when the cognizance of an offence under Section 138 of the Act was
- 23 -CRL.RP No. 93 of 2013
taken, it was the law declared by the Apex Court in the case of K.Bhaskaran that held the field and therefore, the Trial Court was justified in exercising its jurisdiction. The contention of the learned counsel for the accused that in view of the judgment of the Apex Court in Shri Ishar Alloy Steels Ltd. (supra), the Trial Court was not vested with the jurisdiction. It is pertinent to note that in Ishar Alloy Steels, the question that fell for consideration was not the jurisdiction of the Court but was regarding the presentation of the cheque before the drawer bank within six months to attract an offence under Section 138 of the NI Act. It is axiomatic that in view of the introduction of Section 142A into the Act, as noticed by the Apex Court in the case of Bridgestone India Pvt. Ltd. (supra), the question raised by the accused regarding jurisdiction of the Trial Court, does not arise. In that view of the matter, the contention urged by the learned for the accused before the trial Court regarding jurisdiction is rejected.
17. In so far as the merits of the case is concerned, the accused admitted the liability of his daughter and had issued the cheque in question towards discharge of such liability. The
- 24 -
CRL.RP No. 93 of 2013accused did admit that he was liable to pay a sum of Rs.3,50,000-00 to the complainant but claimed that he had paid a sum of Rs.2,00,000-00 by cash to the complainant. However, there is no acceptable evidence to establish the said contention. Therefore, the Trial Court as well as the Appellate Court were justified in holding that the cheque in question was drawn by the accused favouring the complainant towards discharge of a debt and since the accused failed to pay the amount despite receiving demand of notice, he did commit an offence punishable under Section 138 of NI Act. Therefore, this Court does not see any error in the appreciation of the evidence or the application of the relevant law, warranting interference under Section 397 of Cr.P.C. Hence, the revision petition lacks merit and it is dismissed.
18. The assistance rendered by the learned Amicus Curiae Smt.K.M.Archana is appreciated and the Registry is directed to pay a honorarium of Rs.8,000/- to her.
Sd/-
JUDGE TL / List No.: 1 Sl No.: 21