Gauhati High Court
Ashraf Nadeen Hussain vs Zabir Mifta Rahman on 13 June, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal No. 275 of 2013
Mr. Ashraf Nadeen Hussain,
Son of Late Safquat Latif,
Resident of MR Road, Naliapool,
P.O, P.S. & Dist. Dibrugarh,
Pin - 786 001.
----- Appellant/Complainant
- VERSUS -
Mr. Zabir Mifta Rahman,
Son of Matinur Rahman (Retired SE, PWD),
Resident of Milanpur, Chandmari,
Bamuni Maidam,
P.S. Chandmari, Guwahati - 21,
Dist. Kamrup, Assam.
----- Respondent/Accused.
BEFORE
Hon'ble Mr. Justice Hitesh Kumar Sarma
Advocate for the appellant : Mr. AB Chowdhury, Sr. Advocate.
Mr. MK Sharma, Mr. MA Choudhury,
Advocate.
Advocate for Respondent : Mr. AR Bhuyan, Ms. S Boro,
Mr. MAI Hussain., Advocate.
Date of hearing :: 07th June, 2017.
Date of Judgment & Order :: 13th of June, 2017.
JUDGMENT & ORDER
This appeal, under Section 378(4) of the Code of Criminal
Procedure, is directed against the judgment and order dated 16-07-2013,
passed by the learned Sub-Divisional Judicial Magistrate (Sadar),
Dibrugarh, in Case No. 215C/2011, acquitting the accused, namely, Zabir
Mifta Rahman, under Section 138 of the Negotiable Instrument Act,
1881.
Crl. A. No. 275 of 2013 Page 1 of 17
2. I have heard Mr. MK Sharma, learned counsel appearing on
behalf of complainant-appellant, and Mr. AR Bhuyan, learned counsel,
for accused-respondent.
3. The prosecution case, in brief, is that the appellant, Ashraf
NadeenHussain, as complainant, filed a complaint under Section 138 of
the Negotiable Instrument Act, 1988 (in short, 'NI Act') at Dibrugarh, on
26-07-2011, which gave rise to Case No. 215C/2011. The Court of
learned Sub-Divisional Judicial Magistrate (Sadar), Dibrugarh, took
cognizance of the case under Section 138 of NI Act, and at the end of
the trial, the accused was acquitted due to lack of territorial jurisdiction
to try the case as well as on merit.
4. The allegation made in the complaint is that, the
accused/respondent took an amount of Rs.45 Lakhs from the
complainant for his business investment on condition that he would
return the same within a specified time. But the accused/respondent did
not return the amount to the complainant/appellant. After repeated
requests and reminders, the accused issued an account payee cheque of
H.D.F.C. Bank, Khanapara, Guwahati, bearing cheque No.265556
dated 15-01-2011, to the complainant/appellant. The
complainant/appellant deposited the cheque in Axis Bank, Dibrugarh on
27-04-2011 for collection. However, the cheque was dishonoured by
HDFC Bank. The complainant deposited the cheque for the second time
on 28-05-11, on the advice of the accused and, this time too, the cheque
was dishonoured. On query, complainant/appellant came to know that
there was insufficiency of fund in the account of the
accused/respondent.
5. Then, the complainant/appellant issued a legal notice to the
accused/respondent under registered post on 09-06-2011 from
Dibrugarh, which he received on 13-06-2011. The accused, inspite of
Crl. A. No. 275 of 2013 Page 2 of 17
receipt of the notice, did not make the payment within the statutory
period. Hence, the complaint.
6. The accused/respondent appeared before the learned Sub-
Divisional Judicial Magistrate, Dibrugarh and contested the proceedings.
7. After conclusion of the trial, the learned Sub-Divisional Judicial
Magistrate, Dibrugarh, by the impugned judgment and order, acquitted
the accused.
8. In his appeal, the complainant/appellant has taken the following
grounds:
a. That, learned Magistrate has committed an illegality in holding
that the learned Magistrate has no territorial jurisdiction after
taking cognizance of the offence under Section 138 of the NI Act,
moreover after conclusion of the trial.
b. That, the cheque, in question, having been presented to the Axis
Bank at Dibrugarh for payment and the cheque having been
dishonoured at Dibrugarh, cause of action arose at Dibrugarh.
Hence, learned Magistrate committed a glaring illegality in
holding that he had no territorial jurisdiction to decide the case
and thus caused serious failure of justice.
c. That, the learned Magistrate has misinterpreted the law laid
down by the Hon'ble Supreme Court in regard to "the territorial
jurisdiction of a Court to try an offence under Section 138 of the
NI Act".
d. That, the learned Magistrate ought not to have acquitted the
accused/respondent rather returned the complaint for
presentation to the proper Court, as provided in Clause (a) of
Section 201 Cr.P.C.
e. That, the learned Magistrate ought not to have entertained the
objection regarding territorial jurisdiction at the stage of
argument.
f. The findings of the learned Court below that the Court has no
jurisdiction is perverse being contrary to the materials on record
and the law, for which the impugned judgment is liable to be set
aside and quashed.
9. On a reading of the judgment, under challenge in the instant
appeal, it would be apparent that learned SDJM (S) has acquitted the
Crl. A. No. 275 of 2013 Page 3 of 17
accused/respondent on the basis of findings on territorial jurisdiction
recorded in Paragraphs-12 and 14 of the impugned judgment.
10. In paragraphs 12 and 14 of the impugned judgment, the learned
trial Court dealt with jurisdiction part. For the sake of convenience,
Paragraphs 12 and 14 are extracted below:
"12. The alleged cheque or Ext-2 was issued at Guwahati on
the drawee bank at Guwahati. Simply by depositing the cheque
in different places, territorial jurisdiction cannot be changed. The
entire transaction as alleged took place within the jurisdiction of
Guwahati. Hence, the case is liable to be dismissed for the want
of territorial jurisdiction. Most often people are confused about
the place where criminal complaint can be filed under the NI Act,
as the Act is silent on this matter. Since the Criminal courts are
approached, the issue needs to be examined from the point of
view of the Criminal Procedure Code. Section 177 of Cr.P.C.
provides that every offence shall ordinarily be inquired into and
tried by a Court within whose local jurisdiction it was
committed. Section 178 provides that offence may be tried at by
a court having jurisdiction over any of the local areas where
offence is committed. It is possible that an offence may be
committed in several local areas or partly in one area and partly
in another area. It is also possible that some times offence may
consist of several acts done in different areas In all the above
situations, the court having jurisdiction over any of such local
areas may try the offence. The judgment of Supreme Court in K
Bhaskaran V SankaranVaidyaa Balan and Anr. (1999) 7 SCC 510
dealt with this issue elaborately. The Hon'ble Supreme court
opined that offence can be completed only with concatenation
of a number of acts, namely, drawing of cheque, presentation of
cheque, returning of the cheque by the bank, notice by payee
and failure of drawer of cheque within 15 days of receipt of
notice. Any one of the courts under whose jurisdiction the above
acts have taken place can try the offence. In other words
complainant can file compliant in any one of the courts where
the cause of arises or acts have been committed.
In Harman Electronics (P) Ltd and Anr. Vs National
Panasonic India Ltd. (2009)1 comp LJ 29 (SC) the Hon'ble
supreme court had the occasion to examine the issue of
jurisdiction again. In this case the appellant is a resident of
Chandigarh issued a cheque which was dishonored. The cheque
Crl. A. No. 275 of 2013 Page 4 of 17
was issued at Chandigarh where the complainant had a branch
and was presented at Chandigarh. Notice demanding payment
however was issued by the complainant from its Head office at
Delhi to the accused's office at Chandigarh. On failure to respond
to the notice, a complaint was filed in Delhi. Both lower court
and High court have placed reliance on K Bhaskaran V sankaran
Vaidyaa Balan and Anr. case and held that Delhi court also has
jurisdiction. The Appellant/Respondent in appeal contended that
Chandigarh court had jurisdiction to try the offence but his
appeal was dismissed. But in appeal, the Supreme Court held that
a court derives jurisdiction when a cause of action arises.
Jurisdiction cannot be conferred for any act of omission or
commission on the part of the accused. Issuance of notice would
not give rise to cause of action but communication of the notice
would and therefore Delhi High court would not have
jurisdiction and it directed for transfer of the case pending in
Delhi to Chandigarh court. In the given case all the acts took
place including issuance of Ext-2 in Guwahati and the
complainant invested the said amount in J & J Firm In Guwahati
owned by the accused so the complainant cannot file the case at
Dibrugarh as this court has no jurisdiction to entertain it although
complainant has bank account at Dibrugarh and presented the
Ext-2 cheque through his banker by serving legal notice at the
address of the accused at Milanpur, Chandmari (Guwahati).
14. Under the circumstance, the accused prays that the above
case may be dismissed for the ends of justice. From above this
court has no jurisdiction to try such case at Dibrugarh as cause of
action had taken place in Guwahati. To this contrary the learned
advocate for the complainant contends that the place of
registered office of the complainant can be held to be a place
where part of the cause of action accrued and the magistrate
have the power in that territory will have the jurisdiction to
entertain the complainant. Where the accused did not deny the
liability in respect of dishonored cheque, the order of his
acquittal for the offence under section 138 was not proper. There
is no iota of proof that the monetary transaction was taken place
only at Dibrugarh but in Guwahati but mostly in Guwahati as J
and J firm lies in Guwahatiall the transactions had taken place
between the PW-1 and the accused for the investment of the
cheque amount in J and J Investment firm in Guwahati. It cannot
be discarded as stated by PW-1.It is further contended by the
accused counsel that deposit of cheque at Dibrugarh would not
confer jurisdiction on Dibrugarh court to entertain the complaint
petition which has no territorial jurisdiction as the cause of action
Crl. A. No. 275 of 2013 Page 5 of 17
had taken place in Guwahati. To this effect the accused has relied
the decision of Hon'ble Supreme Court reported in (2001)3 SCC
609.The accused had not issued the cheque due to his legally
enforceable debt to the PW-1. On the other hand the
complainant advocate strenuously objected of the above fact
pointing out that in course of cross-examination of the
complainant specifically replied that he collected the amount
from his uncles, sisters, aunt, etc. of Panchali, Dibrugarh,
Naliapool, Tinsukia, etc. and made the payment to the accused
person who was present at Dibrugarh at the time of taking the
amount from the relatives of the complainant with one of his
friends Junmoni which could not be rebutted by the defence.
Mere address of Guwahati in the visiting card of the accused
person is not sufficient to prove that the transaction took place in
Guwahati. The accused person when visited the residence of the
complainant at Dibrugarh to take the amount gave the visiting
card to the complainant at Dibrugarh. The accused person's side
took the plea that the drawer bank is Khanapara Branch of
HDFC Bank but in the cheque itself which was issued under the
signature of the accused person it specifically written that the
amount of the cheque is payable at any branch of HDFC bank
which is the commitment of the accused person himself, from his
such commitment the accused person cannot turn his face in any
case, accordingly the cheque was deposited by the complainant
at his bank, Axis Bank and as it is written in the cheque that the
amount of the cheque is payable at any branch of HDFC Bank,
the Axis Bank sent the cheque to the HDFC Bank, Dibrugarh
branch for collection of the amount and the HDFC Bank
dishonoured the cheque on the ground of "Stopped payment"
and after that notice was issued to the accused person through
registered post to his correct and proper address as per section 27
of the General Clauses Act, 1897 where the notice is sent by the
registered post to an addressee to his correct address it will be
presumed that the notice has duly been served upon the
addressee. As the A/D Card was not received back by the sender,
the advocate for the complainant made correspondence with the
postal department and the postal department confirmed the
delivery of the notice to the addressee and the letter of the
postal department has been exhibited in the case. The citations of
Hon'ble Delhi High Court and the Hon'ble Supreme Court do
not match with the present case. It is not mentioned in the
citation anywhere that the contention of the cheque in those
particular cases is same with the cheque of the present case. The
cheque of the present case was drawable at any branch of HDFC
Crl. A. No. 275 of 2013 Page 6 of 17
Bank and as such any branch of the HDFC Bank whenever the
cheque was sent is the drawer bank and since in the present case
the cheque was sent to the HDFC Bank, Dibrugarh Branch for
withdrawal of the amount the HDFC Bank, Dibrugarh Branch is
the drawee bank. Hence, the objection raised about the
jurisdiction of this court by the accused person's side is quite
immaterial and not maintainable in law. It may be pointed out
that the complainant was quite silent of the fact that the accused
collected money from the PW-1 at Dibrugarh. It is a business
relationship occurred in Guwahati as J & J Firm run by the
complainant is situated in Guwahati. From the above premises
the Dibrugarh Court has no jurisdiction to entertain the above
petition filed by the complainant. Thus, the point No.1 is decided
against the complainant."
11. The observations and discussions made in Paragraphs-13 and 16
are also very much relevant for the decision of the instant appeal as
those paragraphs dealt with the merit of the case. Paragraphs-13 and 16
are quoted as follows:
"13. That apart, complainant produced no material in order to
prove that he had such a considerable amount of Rs.45 lakhs
with him when the accused challenged his alleged payment to
him. The complainant could not produce any document in
support of having such a big amount at the material time. He
took a plea that he paid the amount to the accused after
collecting the same from different persons. Those money lenders
would/should/could have been material witness for the
complainant but since the alleged pleas were false one as such,
the complainant could not produce any such money lenders in
order to prove that he had to take money from different persons
for making payment to the accused. From the cross-examination
of PW-1 it has been clearly proved that the complainant never
had Rs.45 lakhs with him at the material time, therefore, to pay
the accused such a heavy amount is far cry. Therefore, the prima
facie burden of payment to the accused could not be discharged
by the complainant.
ORDER
16. The allegation made against the accused by the complainant has not been proved. I find him not guilty of offense of 138 NI Act. I acquit him from it on bereft of territorial jurisdiction. The bail bond of the accused stands cancelled."
Crl. A. No. 275 of 2013 Page 7 of 1712. The pre-dominant question which falls for determination is that whether at the stage of judgment it is permissible for a criminal Court to go into the aspects of territorial jurisdiction. As a necessary corollary thereof if at all it is permissible for a criminal Court to enter into the aspects of territorial jurisdiction at the stage of judgment, whether, as consequence of such a finding that Court has no territorial jurisdiction, an acquittal of the accused would follow?
13. This being a complaint case it would be necessary to go into some elementary aspects of taking of cognizance and courses open to Court after taking cognizance.
14. The moment a complaint is lodged before a Magistrate he must, before recording the statement of the complainant, scrutinize whether the conditions requisite for taking cognizance have been complied with or not. One of the relevant aspect which the Magistrate is required to look into is whether the Court has a territorial jurisdiction to try the case. In this regard, a visit to the provisions of Section 201 of the Code of Criminal Procedure may be useful.
Section 201. Procedure by Magistrate not competent to take cognizance of the case.-- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,--
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court.
15. The expression "a Magistrate who is not competent to take cognizance of the offence," denotes that even before recording the statement of the complainant the Magistrate must satisfy, on perusal of the complaint petition and other materials annexed with the complaint, that the Court has territorial jurisdiction to try the case. Although in cases filed under Negotiable Instruments Act, an affidavit in lieu of the Crl. A. No. 275 of 2013 Page 8 of 17 statement under Section 200 CrPC is filed under Section 145 yet the Court, before it decides to act on the affidavit and issue process, ascertain that conditions requisite for initiation of proceedings under Section 138 of the Act have been complied with. Once the Court decides to issue process against the accused it is implied that there are sufficient grounds for proceeding against the accused and that the Court has territorial jurisdiction to try the case. The question whether a Court, having issued process against the accused, retract to the stage of consideration whether it has territorial jurisdiction or not, came up for consideration in the case of Devendra Kishanlal Dagalia vs Dwarkesh Diamonds (P) Ltd., reported in (2014) 2 SCC 246.
16. In the case of Devendra Kishanlal Dagalia (supra), the complainant had filed two complaints under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the NI Act") in the Court of the Special Metropolitan Magistrate in the Small Cause Court on 28-7-2008 and 18-8-2008. The learned Metropolitan Magistrate after recording of the pre-summoning evidence, issued summons on the accused under Section 204 CrPC. The accused persons, in both the complaints, then filed application under Section 201 CrPC for return of complaints for want of jurisdiction. They alleged that the entire transaction took place at New Delhi and only the legal notice was issued from Mumbai. Hence, the learned Magistrate has no jurisdiction to try and entertain the complaints. Thereafter, the learned Magistrate allowed the application under Section 201 CrPC and returned the complaints for want of jurisdiction. The complainant, then, challenged the orders before the Sessions Judge. The learned Sessions Judge allowed the criminal revision applications and set aside the orders of the learned Magistrate and the matter was remitted back to the Magistrate.
Crl. A. No. 275 of 2013 Page 9 of 17However, at the instance of accused persons the order passed by the Sessions Judge was set aside by the High Court.
17. One of the questions which arose for determination before the Hon'ble Supreme Court in Devendra Kishanlal Dagalia (supra) was as follows;
(i) Whether the Magistrate after having found sufficient ground for proceeding in case and issued summons under Section 204 CrPC has the jurisdiction to recall or review the order by exercising his power under Section 201 CrPC?
18. Placing reliance on the law, laid down in the case of Adalat Prasad vs Rooplal Jindal, reported in (2004) 7 SCC 338, the Supreme Court held that Section 201 CrPC can be applied immediately on receipt of a complaint, if the Magistrate is not competent to take cognizance of the offence. Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 CrPC, there is no question of going back following the procedure under Section 201 CrPC. In absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summons in exercise of power under Section 201 CrPC.
19. The law is, therefore, settled that once a criminal Court forms an opinion that there are sufficient grounds to issue process against the accused, and consequently issues process, it is not open to such Court to retract to the stage of consideration about of territorial jurisdiction, for if the Court does go back to such a stage and finds that it does not possess territorial jurisdiction to try the case the consequence would be reviewing or recalling the order of issuance of summons and in view of the legal principle laid down in the case of Adalat Prasad (supra), a criminal Court has no power to review or recall its order of issuance of summons.
Crl. A. No. 275 of 2013 Page 10 of 1720. In the present case, the materials on record show that, not only cognizance was taken and process issued, but a full trial was held. It is at the stage of argument only the issue of territorial jurisdiction was raised. The learned Magistrate, while delivering the judgment, recorded the finding of lack of territorial jurisdiction to try the case.
21. With respect to the powers of a criminal Court to review or recall its own order, the findings of the learned trial Court, that it had no territorial jurisdiction, cannot but be said to be in direct conflict with the settled law discussed above. On this count alone the judgment of the learned trial Court deserves to be set aside.
22. However, there are several other aspects of the judgment which has caught my attention and which I propose to deal with hereinafter.
LAW RELATING TO TERRITORIAL JURISDICTION VIS-À-VIS CASES UNDER NEGOTIABLE INSTRUMENTS ACT CASES:
23. Prior to the Amendments in NI Act, in the year 2015, the law relating to territorial jurisdiction was laid down in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan reported in (1999) 7 SCC 510. The relevant observations of K. Bhaskaran (supra), is reproduced hereinbelow;
14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice.
15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the Crl. A. No. 275 of 2013 Page 11 of 17 completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:
"178. (a)-(c)***
(d) where the offence consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas."
16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act.
24. The ratio of K. Bhaskaran was followed and re-iterated in the several cases thereafter including the cases of Nishant Aggarwal v. Kailash Kumar Sharma, (2013) 10 SCC 72, Escorts Ltd. v. Rama Mukherjee (2014) 2 SCC 255 and Devendra Kishanlal Dagalia (supra).
25. One of the important observations made in the case K. Bhaskaran (supra) was that as the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of Act. This observation assumes more significance in the facts of the appeal, under consideration before this Court, and accordingly it needs to be pointed out that since the case was under Negotiable Instruments Act and the materials already on record show that the Cheque issued by the accused respondent was an account payee Cheque. The Cheque was deposited in the account of Crl. A. No. 275 of 2013 Page 12 of 17 complainant at Dibrugarh. It is an admitted position that complainant is a resident of Dibrugarh. The bank slip regarding dishonor of the Cheque was issued to the complainant-appellant at Dibrugarh. The statutory demand notice to the accused respondent was also issued by the complainant from Dibrugarh. Thus, three acts, out of the five acts, as mentioned in the K. Bhaskaran (supra), admittedly, took place at Dibrugarh. In that view of the matter also the findings recorded by the trial Court that, since no transaction took place at Dibrugarh, it had no territorial jurisdiction to try the case, was a patently illegal finding on the face of record. The territorial jurisdiction under the Negotiable Instruments Act is based on definite principles. Even if it is assumed that the complainant-appellant was unable to establish that no transaction took place at Dibrugarh yet the Court at Dibrugarh did not cease to have territorial jurisdiction as evidently three out of the five acts, as mentioned in K. Bhaskaran (supra), had taken place at Dibrugarh.
26. The finding of the learned trial Court with regard to territorial jurisdiction is based on an erroneous interpretation of ratio laid down in the case of K. Bhaskaran (supra), resulting in erroneous finding.
27. It may be mentioned here that after the 2015 amendments to NI Act, Section 142 (2) of the Act provides that 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
(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.
Crl. A. No. 275 of 2013 Page 13 of 17Explanation.-- 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.
28. In the present case, the Cheque issued by the accused respondent was not a bearer Cheque but an account payee Cheque, and hence, it could have been deposited only in the place where the complainant maintains the account. The complainant maintains an account at Dibrugarh. Therefore, only the Court at Dibrugarh would possess jurisdiction to try the case.
29. Thus, neither under the pre-Amendment law nor under the post Amendment law the Dibrugarh Court lacked territorial jurisdiction to try the case.
IS IT PERMISSIBLE FOR THE COURT TO UNDERTAKE SIMULTANEOUS DISCUSSION ON MERITS OF THE CASE AS WELL AS TERRITORIAL JURISDICTION:
30. The learned trial Court appreciated the evidence tendered by the complainant and arrived at a finding that transactions have not been proved. On the other hand, the learned trial Court also held that it does not possess territorial jurisdiction to try the case. It is not permissible for any Court to give a simultaneous finding on these two aspects of a case. As discussed, hereinbefore, once the process was issued and case was set for trial it was open to the accused to challenge the territorial jurisdiction of the trial Court by making appropriate applications before the Superior Court. Since the accused did not challenge the jurisdiction of the trial Court it was absolutely unnecessary for the learned trial Court to go into the aspects of territorial jurisdiction and the case should have been decided on merit. This apart, as a consequence of a Court not having territorial jurisdiction, an order of acquittal cannot be recorded. An order of acquittal is recorded only when the trial Court Crl. A. No. 275 of 2013 Page 14 of 17 has examined the case on the basis of evidence tendered and finds that charges have not been proved. The provisions of Section 201 of Code of Criminal Procedure is clear that if the Court, at the proper stage, finds that it has no territorial jurisdiction it shall return the complaint to be filed in proper Court. Once the complaint is returned no question of entering into the merits of the case would arise because the further proceedings of the case would be taken only in the Court having jurisdiction.
31. The learned trial Court, apart from holding lack of territorial jurisdiction, also held the accused/respondent not guilty on merit. In the last sentence of Paragraph-13 of the impugned judgment, the learned trial Court held that "............ the prima facie burden of payment to the accused could not be discharged by the complainant". On the other hand, in Paragraph-16 of the said judgment, in first sentence under the heading "ORDER", the learned trial Court held that "The allegation made against the accused by the complainant has not been proved." Such simultaneous discussion and decisions on the territorial jurisdiction and on merit is impermissible.
POWERS OF THE APPELLATE COURT:
32. This being an appeal against acquittal the powers of the appellate Court have been delineated in Section 386 of the Code of Criminal Procedure which provides as follows;
386. Powers of the Appellate Court.-- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--
(a)in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be Crl. A. No. 275 of 2013 Page 15 of 17 re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
33. In Rohtash vs State of Haryana, reported in (2012) 3 SCC (Cri) 287 the Supreme Court held that the law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
34. An analysis of Rohtash (supra) reveals that the law is unequivocal that where there is compelling circumstances and the judgment is perverse, the appellate Court can interfere with the order of acquittal.
35. Thus, it will be seen that not only the proposition of law which prevailed upon the trial Court was based on misinterpretation of precedents and the law but the factual analysis of the case was also perverse, being based on no such evidence.
36. In the result, the appeal is allowed. The judgment and order of learned Sub-Divisional Judicial Magistrate (Sadar), Dibrugarh, in Case No. 215C/2011 is hereby set aside and the matter is remanded to the trial Court to take up the case from the stage of arguments and pass a fresh judgment on the evidence already on record.
37. The learned trial Court is directed to dispose of the case within two months from the date of receipt of the records. The complainant/appellant as well as the accused/respondent are directed to appear before the learned trial Court on 23rd of June, 2017.
38. The appeal is disposed of accordingly.
Crl. A. No. 275 of 2013 Page 16 of 1739. Send down the LCR to reach the Court at Dibrugarh before 23rd of June, 2017.
JUDGE Paul Crl. A. No. 275 of 2013 Page 17 of 17