Kerala High Court
Arun Francis vs State Of Kerala
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 16TH DAY OF JANUARY 2017/26TH POUSHA, 1938
Crl.MC.No. 823 of 2016 ()
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CC 2096/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI.
........
PETITIONER/ACCUSED:
-------------------
ARUN FRANCIS, S/O.FRANCIS,
AGED 26, PAREKUDIYIL HOUSE,
PALLIKUNUKARA, KUTHUNGAL,
P.O.UDUMBANCHOLA TALUK,
IDUKKI DISTRICT - 685 566.
BY ADV. SRI.LATHEESH SEBASTIAN
RESPONDENTS/STATE & COMPLAINANT:
--------------------------------
1. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. NOBLE MATHEW, AGED 43, S/O.MATHEW,
MUTHANATTU HOUSE, CHERUPURAM KARA,
RAJAKKAD.P.O., IDUKKI DISTRICT - 685 566.
R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
R2 BY ADVS.SRI.P.MARTIN JOSE
SRI.K.N.RADHAKRISHNAN
SRI.THOMAS P.KURUVILLA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 16-01-2017 ALONG WITH CRMC.2079/2016, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
mbr/
Crl.MC.No. 823 of 2016 ()
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APPENDIX
PETITIONERS' ANNEXURES:
ANNEXURE-A1: TRUE COPY OF THE COMPLAINT OF THE
2ND RESPONDENT IN C.C.2096/2014 ON THE FILE OF
JFCM-1, KOCHI.
ANNEXURE A2: COPY OF THE ORDER OF THE JFCM-1, KOCHI
DATED 30.10.2015 IN C.C.2096/2014.
RESPONDENTS' ANNEXURES: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
ALEXANDER THOMAS, J.
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Crl.M.C.Nos.2079 and 823 of 2016
==================
Dated this the 16th day of January, 2017
O R D E R
Crl.M.C.No.2079/2016:
The petitioner herein is the accused in Anx.A-1 complaint filed by the 1st respondent complainant before the Chief Judicial Magistrate's Court, Thalassery, alleging offence under Sec.138 of the Negotiable Instruments Act. The gist of the complaint is that the accused had issued a cheque dated 1.12.2012 for Rs.5 lakhs drawn on Vijaya Bank, H.D. Kote Branch, Karnataka, in favour of the complainant. The cheque was presented by the complainant before the North Malabar Gramin Bank, Chakkarakkallu branch, Kannur district, and upon its dishonour and adherence to the statutory formalities of notice, etc., the complainant had preferred the instant complaint, which was taken on file as S.T.No.42/2012 by the learned Magistrate. The said complaint was filed before the Chief Judicial Magistrate's Court, Thalassery, in the light of the legal position settled earlier by the Apex Court in K.Bhaskaran v.
Crl.M.C.823/16 & c.c - : 2 :-
Sankaran Vaidhyan Balan, reported in 1999 (7) SCC 510, regarding the territorial jurisdiction of criminal courts for entertaining of complaints filed under Sec.138 of the N.I.Act. Later, by judgment dated 1.8.2014, the Apex Court in the case Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. (Crl.Appeal No.2287/2009) reported in (2014) 9 SCC 129, had held that the territorial jurisdiction of the cases relating to Sec.138 of the N.I.Act, is restricted to the court within whose local jurisdiction, such offence is committed, which, in the present context's case, where the cheque is dishonoured by the bank on which it is drawn. The Apex Court had also directed therein that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Sec.145(2) of the Act, the proceedings will continue at that place and all other complaints (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 the exposition of the law, as determined in the said judgment. On such return, the complainants were obliged to re-present the complaint within 30 days of their return and if such Complaints are filed/refiled within thirty days of Crl.M.C.823/16 & c.c - : 3 :-
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.
2. In the light of the abovesaid directions issued by the Apex Court in Dashrath Rupsingh Rathod's case supra, the Chief Judicial Magistrate's Court, Thalassery, had returned Anx.A-1 complaint to the counsel for the complainant on 23.9.2014. According to the complainant, he became aware about the said direction to return of the complaint only on 14.9.2015 and thereafter, he had instructed his counsel to collect the complaint and re-present it before the same court (Chief Judicial Magistrate's Court, Thalassery) on 15.9.2015. Accordingly, Anx.A-3 affidavit and petition dated 15.9.2015 were filed before the Chief Judicial Magistrate's Court, Thalassery, praying that the delay of 327 days in re-presenting the complaint may be condoned and that the complaint may be taken back to the same court. The said payer in Anx.A-3 was made by the complainant in the light of the provisions contained in the Negotiable Instruments (Amendment) Ordinance, 2015 (No.6 of 2015), which was promulgated and published in the gazette with effect from 15.6.2015.
Crl.M.C.823/16 & c.c - : 4 :-
3. The learned Magistrate allowed the prayer made in Anx.A-3 application as per the order dated 15.9.2015 endorsed therein. Anx.A-3 petition was numbered as Criminal Miscellaneous Petition No.4239/2015 arising out of S.T.C.No.42/2012 on the file of the Chief Judicial Magistrate's Court, Thalassery. The prayer in Anx.A-3 petition was allowed on 15.9.2015 itself as per the order to that effect, endorsed therein. A type written copy of the said order dated 15.9.2015 has been produced as Anx.A-4, which reads as follows:
"Complainant is present. Complaint is taken on file as S.T.No.786 of 2015. Issue summons to accused. Call 28.12.2015."
Anx.A-4 order was passed without issuing notice to the petitioner accused. It is this order at Anx.A-4, that is under challenge in the above Crl.M.C.
4. The petitioner accused would contend that as the complaint was never refiled before the proper court in terms of the law laid down in Dashrath Rupsingh Rathod's case supra within the time limit of 30 days as permitted by the Apex Court, no compliant can be said to have been pending before the 'proper court"
as envisaged in Dashrath Rupsingh Rathod's case supra and that therefore there is no question of taking recourse to the provisions Crl.M.C.823/16 & c.c - : 5 :-
contained in the Negotiable Instruments (Amendment) Ordinance, 2015 (No.6 of 2015), in order to pass an order as per Anx.A-4 and that the remedy, if any, available to the complainant, is only to file a fresh complaint, after seeking condonation of delay under proviso made in Clause (b) of Sec.142 of N.I. Act, in which case, the court below is obliged to issue notice to the petitioner accused and delay condonation could have been considered by the court below only after a reasonable opportunity of being heard to the petitioner as well.
5. It is pointed out by Smt.K.Deepa, learned counsel appearing for the 1st respondent, that the petitioner accused had never taken bail from the Chief Judicial Magistrate's Court, Thalassery, in the above complaint and that he had only secured permission for personal appearance through counsel and that the court below therefore was constrained to issue non-bailable warrant against the petitioner and those aspects are pointedly referred to in Anx.A-3 petition. The petitioner has not been able to controvert the said submission made on behalf of the 1st respondent complainant. Both the parties have made their respective submissions on the basis of the provisions contained in the Act as well as the judgments Crl.M.C.823/16 & c.c - : 6 :-
governing the subject.
6. Heard Sri.Abu Mathew, learned counsel appearing for the petitioner accused, Smt.K.Deepa, learned counsel appearing for the 1st respondent complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the 2nd respondent State.
7. The issues bearing on the re-presentation of the complaints pursuant to the directions issued by the Apex Court in Dashrath Rupsingh Rathod's case supra as well as the subsequent provisions enacted by the Parliament through the Negotiable Instruments (Amendment) Ordinance, 2015 (6 of 2015) have been considered by the Division Bench of this Court in Binoy K.Mathew v. Godley Dev John & Anr. reported in 2015 (4) KHC 243 (D.B). The Division Bench therein had dealt with cases, wherein the trial court where the complaints were initially instituted, had returned the complaints for re-presentation before the proper court in terms of the legal principles settled by the Apex Court in Dashrath Rupsingh Rathod's case supra. But the complainants could not re-present those complaints within the time limit of 30 days as permitted by the Apex Court in the said ruling. The issue arose is as to whether the latter court had the power to condone delay in re-presentation of Crl.M.C.823/16 & c.c - : 7 :-
the complaints after the expiry of 30 days as stipulated in the abovesaid ruling. After elaborate consideration of the case in Dashrath Rupsingh Rathod's case supra, the Division Bench held in paras 8 and 9 thereof that nothing in the judgment of the Apex Court in Dashrath Rupsingh Rathod's case supra, would prevent the court below concerned from exercising its powers as per Sec.470 of the Cr.P.C. considering the issue of condonation of delay, based on the exclusion of time that could be sought by the complainant on the ground that they had been prosecuting with due diligence another prosecution, etc. and that in a case where the complainant could not re-present the complaint before the latter court within the time limit of 30 days as directed by the Apex Court in the Dashrath Rupsingh Rathod's case supra, then it would be open to the complainants to urge before the court below that the delay beyond the said 30 days' period could be condoned by taking recourse to the provisions contained in Sec.470 of the Cr.P.C. as well as the power of the court under the proviso to clause (b) of Sec.142 of the N.I. Act and to pray for condonation of delay, etc. However, para 10 of the said ruling, the Division Bench has clearly and categorically held that resort to such a method for seeking Crl.M.C.823/16 & c.c - : 8 :-
condonation of delay may not really be necessary at all in such cases, in view of the subsequent legislative amendments made by the Parliament through the enactment of Negotiable Instruments (Amendment) Ordinance, 2015 (6 of 2015). After considering the provisions contained in the newly introduced provision in sub section (2) of Sec.142 of the N.I. Act, as per the abovesaid Amendment Ordinance, with effect from 15.6.2015 as well as provisions contained in Sec.142A as inserted in the principal Act as per the said amendment Ordinance, the Division Bench held that in view of the efficacy of the legislative amendment brought about through the said Amendment Ordinance, the complaints would have been maintainable before the courts, where they were originally filed and the non-obstante clause of Sec. 142A of the N.I. Act as inserted by the Amendment 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 subsection (2) of Sec.142 of the N.I. Act, as if that subsection had been in force at all material times. Further that Ordinance No.6 of 2015 is clarificatory in nature, clarifying the territorial jurisdiction for trying the cases of dishonour Crl.M.C.823/16 & c.c - : 9 :-
of cheques as indicated in the Statements of Objects and Reasons appended to the amendment bill and subsection (1) of Sec.142A of the Negotiable Instruments Act would make the position clear that it is clarificatory in nature. Therefore, it is not necessary to direct the court to pass orders to entertain the complaints and consider the application for condonation of delay and it would be sufficient that the petitioners are permitted to present the complaints before the courts, where they were originally filed. In para 20, their Lordships of the Division Bench further held that in view of the events which took place after the judgment of the Apex Court in the Dashrath Rupsingh Rathod's case supra and the position, as clarified in the N.I. (Amendment) Ordinance, 2015 (No.6 of 2015) as well as the direction given by the Apex Court in para 22 of the Dashrath Rupsingh Rathod's case supra, the Division Bench is of the view that the petitioners can be permitted to present the complaints in the respective courts, where they were originally filed, and that on such presentation, the courts shall treat the same as having been filed on the date on which the respective complaints were originally filed, etc.
8. It will be profitable to refer to paras 19 and 20 of the Crl.M.C.823/16 & c.c - : 10 :-
said judgment in Binoy K.Mathew's case supra, which read as follows:
"19. It is submitted by the learned counsel appearing for the petitioners that the complaints involved in these Crl RPs were filed in Courts which had jurisdiction, going by sub-section (2) of S.142 of the NI Act inserted by the Ordinance No. 6 of 2015. The Ordinance is in force. The ordinance promulgated under Art.123 of the Constitution of India shall have the same force and effect as an Act of Parliament. The Ordinance has not ceased to operate as provided in sub-clause (a) of Clause (2) of Art.123 of the Constitution of India, nor was it withdrawn as provided in sub-clause (b) therein. If so, the complaints would have been maintainable before the Courts where they were filed, going by the submission made by the counsel. 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. 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. Sub-section (1) of S.142A of the NI Act would make the position clear that it is clarificatory in nature. 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. It would be sufficient if the petitioners are permitted to present the complaints before the Courts where they were originally filed.
20. On the presentation of the complaints before the Courts where they were originally filed, naturally it would be beyond the period of limitation if the date of such presentation is taken as the material date. S.470 of CrPC gives ample powers to the Court to exclude the time during which the complainant was prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision. Going by the wording of S.470, a fresh complaint is required. But the principles underlying S.470 of the CrPC will apply in the peculiar facts and circumstances of the case, even if the same complaint is re - presented. In view of the events which took place after the judgment of the Supreme Court in Dashrath Rupsingh Rathod's case (supra) and the position as clarified in the NI Amendment Ordinance, 2015 (No. 6 of 2015), as well as the direction given by the Supreme Court in paragraph 22 of the Dashrath Rupsingh Rathod's case (supra), we are of the view that the petitioners can be permitted to present the complaints in the respective Courts where they were originally filed. On such Crl.M.C.823/16 & c.c - : 11 :-
presentation, the Courts shall treat the same having been filed on the date on which the respective complaint was originally filed. The petitioners shall present their respective complaint in the proper Court, namely, the Court where it was originally filed, within one month from today."
Subsection (2) of Sec.142 of the N.I. Act, as inserted by the N.I. (Amendment) Ordinance 2015 (No.6 of 2015), made effective from 15.6.2015, reads as follows:
"Sub section (2).The offence under S.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.
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." Sec.142A as inserted in the principal Act through the said N.I. Amendment (Ordinance) 2015, provided as follows:
"Sec.142A.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or directions of any Court, all cases arising out of S.138 which were pending in any Court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the Court having jurisdiction under sub-section (2) of S.142 as if that sub-section had been in force at all material times.
xxx xxx xxx" Crl.M.C.823/16 & c.c - : 12 :-
9. It has been clearly stipulated in subsection (1) of Sec.142A, as per the (Amendment) Ordinance, 2015, that notwithstanding anything contained in the Cr.P.C. or any judgment, decree, order or directions of any Court, all cases arising out of Sec.138, which were pending in any Court, whether filed before it, or transferred to it, before the commencement of the N.I. Act (Amendment) Ordinance, 2015, shall be transferred to the court having jurisdiction under Sec. 142(2), as if that subsection had been in force at all material times.
10. Later, the said provisions were re-promulgated as per the N.I. (Amendment) Second Ordinance, 2015, published in gazette of India dated 22.9.2015, but having retrospective effect from 15.6.2015. Subsection (1) of Sec.142A, so inserted as per the said N.I. (Amendment) Second Ordinance, 2015, has employed a slightly different phraseology and language and it reads as follows:
in the"Sec.142A.-- (1) Notwithstanding anything contained decree,Code orCriminal orderof directionsProcedure, 1973 or any judgment, 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 Ordinance, as if that sub-section had been in force at all material times."
11. Later the Parliament, had enacted the N.I. (Amendment) Crl.M.C.823/16 & c.c - : 13 :-
Act, (No.26 of 2015) published in the gazette of India dated 29.12.2015, but with retrospective effect from 15.6.2015. Both the (Amendment) Second Ordinance as well as Amendment Act, broadly make the same provisions as if the N.I. (Amendment) Ordinance, 2015, but the language employed in Sec. 142A(1) as per the (Amendment) Act, is the same as in the N.I. (Amendment) Second Ordinance, 2015, which is in slight variance with the one in N.I. (Amendment) Ordinance, 2015.
12. The Apex Court had occasion to consider the effect of its earlier ruling in Dashrath Rupsingh Rathod's case supra, in the light of the provisions contained in the said (Amendment) Ordinance. The Apex Court in the case Bridge Stone India (P) Ltd. v. Inderpal Singh, reported in (2016) 2 SCC 75 had occasion to consider the effect of the provisions contained in the abovesaid N.I. (Amendment) Ordinance on its earlier rulings in Dashrath Rupsingh Rathod's case supra. In Bridge Stone's case supra, the accused (respondent) had drawn a cheque on Union Bank of India, Chandigarh, in favour of the complainant - appellant (Bridge Stone India (P) Ltd.) and the complainant had presented the cheque at IDBI bank, Indore. In the ensuing Sec.138 compliant was preferred by Bridge Stone India (P) Crl.M.C.823/16 & c.c - : 14 :-
Ltd. before the Magistrate's Court at Indore and the territorial jurisdiction of that court was challenged by the accused. Ultimately, the High Court of Madhya Pradesh, Indore Bench accepted the prayer made by the accused Inderpal Singh by by holding that the jurisdiction lays only before the court wherein the original drawee bank was located, namely, at Chandigarh, where from the accused had issued the cheque in question. Dissattisfied with the said order dated 5.5.2011 passed by the Madhya Pradesh High Court, the appellant Bridge Stone India (P) Ltd., had approached the Apex Court through the appeal, which resulted in the abovesaid judgment in Bridge Stone India (P) Ltd.'s case supra. While dealing with that controversy, their Lordships of the Supreme Court noted the earlier judgment in Dashrath Rupsingh Rathod's case supra. It may be noted that the judgment of the Apex Court in Dashrath Rupsingh Rathod's case supra was rendered on 1.8.2014. Their Lordships of the Supreme Court held in para 10 thereof that, in view of the decision of the Apex Court in Dashrath Rupsingh Rathod's case supra, the impugned order passed by the Madhya Pradesh High Court, Indore Bench in Bridge Stone India (P) Ltd.'s case supra was only justifiable. However, their Lordships further noted in para 11 Crl.M.C.823/16 & c.c - : 15 :-
thereof that it is in order to the overcome the legal principle declared by the Apex Court in Dashrath Rupsingh Rathod's case supra, that the appellant has placed reliance on the N.I. (Amendment) Second Ordinance, 2015, which had come into force retrospectively from 15.6.2015 and at that time, the said Second Ordinance 2015 was in force. Their Lordships further noted Secs.3 and 4 of the Amendment Ordinance, which incorporated the new provisions as Sec.142(1) and Sec.142A to the Negotiable Instruments Act. After quoting the said amended provisions, their Lordships further opined in para 13 of Bridge Stone India (P) Ltd.'s case supra that a perusal of the amended Sec.142(2) 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, the place where the cheque is delivered for collection, that is the branch of the bank, of the payee or the holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction. In para 13 and 14 of the said judgment read as follows:
"13. A perusal of the amended S.142(2), extracted above, leaves no room for any doubt, specially in view of the explanation thereunder, that with reference to an offence under S.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 Crl.M.C.823/16 & c.c - : 16 :-
holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction. that the14. It is, however, imperative for the present controversy, appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to S.4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby S.142A was inserted into the Negotiable Instruments Act. A perusal of sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under S.138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the 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 S.142A. Likewise, any judgment, decree, order or direction issued by a Court would have no effect insofar as the territorial jurisdiction for initiating proceedings under S.138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied, that the judgment rendered by this Court in Dashrath Rupsingh Rathod's case would also not non - suit the appellant for the relief claimed." Accordingly, their Lordships of the Supreme Court has categorically held in para 14 thereof that, in the light of the abovesaid provisions as borne out by the amended Amendment Ordinance, the judgment in Dashrath Rupsingh Rathod's case supra also would not non- suit the appellant therein for the relief claimed and accordingly, it was held that, in view of the Amendment Ordinance, the appellant therein is entitled to succeed and it was held that the place where the cheque is delivered for collection, that is the branch of the bank of the payee or holder in due course, where drawee maintains an account, would be determinative of the place of territorial jurisdiction. It was further held by the Apex Court in para 15 thereof Crl.M.C.823/16 & c.c - : 17 :-
that their Lordships were in complete agreement with the contention advanced at the hands of the appellant Bridge Stone and that Sec. 142(2)(a) amended through the N.I. (Amendment) Second Ordinance, 2015 vests jurisdiction for initiating proceedings for the offence under Sec.138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the court, where the cheque is delivered for collection through an account of the branch where payee or the holder in due course maintains an account. Further, that based on Sec.142-A(1) to the effect that the judgment rendered by the Apex Court in Dashrath Rupsingh Rathod's case supra would not stand in the way of the appellant therein insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in the said case arises. It was further held in para 16 that since the dishonoured cheque was presented for collection through Indore bank, which had issued the dishonour memo, it is the magistrate court at Indore, which would have territorial jurisdiction, to take cognizance of the proceedings initiated by the appellant under Sec.138 of the Negotiable Instruments Act, after the promulgation of the N.I. (Amendment) Second Ordinance, 2015. Further it was held therein that the words, Crl.M.C.823/16 & c.c - : 18 :-
"...... as if that sub-section had been in force at all material times...." used with reference to Sec. 142(2) in Sec.142-A(1) gives retrospectivity to that provision. Paras 15 and 16 Bridgestone's case supra read as follows:
'15. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that S.142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under S.138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on S.142A (1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod's case, would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises.
16. Since cheque No. 1950, in the sum of Rs.26,958/-, drawn on the Union Bank of India, Chandigarh, dated 02/05/2006, was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the appellant on 04/08/2006, 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 S.138 of the Negotiable Instruments Act, 1881, after the promulgation of the 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 S.142(2), in S.142A(1) gives retrospectivity to the provision.'
13. The facts and circumstances in the present case have to be evaluated in the light of the impact of the provisions of the N.I. (Amendment) Ordinances, 2015 as well as the (Amendment) Act, 2015 and on the legal position earlier laid down by the Apex Court in Dashrath Rupsingh Rathod's case supra. The impact of the legal position laid down by this Court in Binoy K.Mathew's case supra Crl.M.C.823/16 & c.c - : 19 :-
reported in 2015(4) KHC 243(D.B) should also be examined with reference to the facts of this case.
14. Now coming to the facts of this case, the cheque in question was drawn on Vijaya Bank, H.D. Kote branch, Karnataka, by the accused in favour of the complainant. The complainant had delivered the said cheque for collection through North Malabar Gramin Bank Chakkarakkallu (Kannur district), where he was having an account. The complaint was instituted on 19.5.2012, which was numbered as S.T.C.No.42/2012 by the Judicial First Class Magistrate's Court, Thalassery. The complaint was instituted by the complainant based on the initial legal position laid down by the Apex Court in K.Bhaskaran v. Sankaran Vaidhyan Balan & Anr. reported in (1997) 7 SCC 510, as per which, the complaint should have been instituted before the said magistrate's court at Thalassery. The legal position was altered as per the judgment dated 1.8.2014 of the Apex Court in Dashrath Rupsingh Rathod's case supra, as per which, the complaint should have been filed before the magistrate's court having territorial jurisdiction over the limits of the area, where the drawee bank at Karanataka was situated. The Apex Court said that the cases like the instant one, Crl.M.C.823/16 & c.c - : 20 :-
should be returned by the respective magistrates to the complainants and that the complainants are to re-present the same before the proper court within 30 days from the date of return of the complaints. In the instant case, the Chief Judicial Magistrate's Court, Thalassery, had returned the complaint in question on 23.9.2014, pursuant to the abovesaid Apex Court judgment dated 1.8.2014 in Dashrath Rupsingh Rathod's case supra. It appears that the complainant's counsel had not received back the said written complaint from the Registry of the court. According to the complainant, he became aware about the return of the complaint only on 14.9.2015, upon which, the complaint was taken back from the said magistrate's court on 14.9.2015 and was re-presented on
15.9.2015 along with Anx.A-3 affidavit and application to condone the delay of 327 days in re-presenting the complaint and praying for orders to take back the said complaint on the file of the said magistrate's court at Thalassery.
15. It is to be noted that the cases considered by the Division Bench in Binoy K.Mathew's case supra were all cases wherein the complaints which were returned by the former court in compliance with the Apex Court directions in Dashrath Rupsingh Rathod's case Crl.M.C.823/16 & c.c - : 21 :-
supra were taken back by the respective complainants, but were not re-presented before the latter court, within the permissible time limit of 30 days granted by the Apex Court in the said judgment, but were later re-presented before the latter court along with the application to condone the delay that occurred beyond the said 30 days' time limit. In spite of the facts being such, their Lordships of the Division Bench held that though otherwise nothing precluded the jurisdictional magistrate court concerned exercising their statutory powers conferred under Sec.470 of the Cr.P.C. r/w. Sec. 142 proviso (b) of the N.I. Act, it was further held that such recourse to those provisions is not necessary at all, in view of the subsequent amendments made as per the N.I. (Amendment) Ordinances, 2015.
Their Lordships of the Division Bench have clearly held in para 19 that the non-obstante clause in Sec.142A of the N.I. 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 Sec. 142(2) of the N.I. Act, as if that sub section had been in force at all material times". Therefore, viewed from a technical angle, it could be said that the Division Bench of this Court had held that the benefit of non-
Crl.M.C.823/16 & c.c - : 22 :-
obstante clause in Sec. 142A of the N.I. Act could be given to those cases dealt with by the Division Bench, in which complaints were re- presented before the latter court along with delay condonation application. That is to say, the Division Bench has placed the complaints re-presented before the latter court within the time limit of 30 days as permitted by the Apex Court and the re-presented complaints, which were filed along with delay condonation application, on an equal pedestal, so as to give the benefit of the said non-obstante clause. But in all those cases, it appears from a reading of the Division Bench judgment that those re-presented complaints along with delay condonation applications were actually pending before the latter court before the commencement of the Amendment Ordinance, with effect from 15.6.2016. In the instant case, the complaint was returned to the complainant by the Thalassery court on 23.9.2014, but was never actually taken back by the complainant and was never re-presented before the proper court as per the Dashrath Ruopsingh Rathod's case supra. On this basis, it is contended by Sri.Abu Mathew, learned counsel for the petitioner accused that the complainant in the instant case is not entitled to get the benefit of the non-obstante clause in Sec. 142A Crl.M.C.823/16 & c.c - : 23 :-
of the Negotiable Instruments Act, as inserted by (Amendment) Ordinance/ Amendment Act, as no complaint was actually pending before the "proper court", as conceived in Dashrath Rupsingh Rathod's case supra and in this regard, the petitioner would place reliance on a judgment of a learned Single Judge of the Chattisgarh High Court in the A.K.R. Transport Barbhata (Salkhan) v. Kamakshi Shipping & Ors. reported in 2016 KHC 2087 = 2016 Crl.L.J NOC 39. In A.K.R.Transport's case supra, the complaint was filed on 20.8.2014 and the same was returned to the complainant for presenting before the proper court as per the Dashrath Rupsingh Rathod's case supra on 18.9.2014. The complainant challenged the said order of the learned Magistrate by filing revision petition before the Sessions Court, and the said revision was dismissed by the Sessions Court. The complainant had contended that at least 2 more months' time should have been given by the learned Magistrate for re-presenting the complaint before the "proper court". The orders of the learned Magistrate and the revisional order of the Sessions Court were challenged by the complainant. The complainant preferred a petition under Sec.482 of the Cr.P.C. to challenge the said orders before the Chattisgarh High Court, which was the Crl.M.C.823/16 & c.c - : 24 :-
subject matter of the said reported judgment. The contentions were also raised by the complainant on the basis of the abovesaid N.I. (Amendment) Ordinance, 2015. A learned Single Judge of the Chattisgarh High Court held that the reading of the newly inserted Sec.142(2) shows that the same effect does not extend to the complaints already returned as it contains the words "The offence under Sec.138 shall be enquired into and tried only by court within whose local jurisdiction", and so if the complaint has already been returned and was not filed before the competent forum as per applicable law in force at the prevailing time, no complaint would be presumed to be pending at that time and therefore there was no question of enquiring into and trying the offence in the absence of a complaint, etc. On this basis, the Chattisgarh High Court held that the power under Sec.482 cannot be exercised, to continue with the said criminal proceeding since on the date of promulgation of the ordinance on 15.6.2015, no complaint was pending before the magistrate's court concerned and that the petitioner, if so advised, may file a fresh complaint before the court having jurisdiction, subject to the petitioner satisfying the reason for condonation of delay in filing the complaint, which has to be adjudicated by the Crl.M.C.823/16 & c.c - : 25 :-
competent magistrate court, etc. Para 11 of the said judgment reads as follows:
'11. So on the date of amendment of ordinance, by application of facts, the complaint under S.138 filed before the JMFC was not pending having been returned on 18.09.2014. Now the question arises for consideration that whether the petitioner can claim restoration of the complaint on the strength of amended Section of 142 - A(1)(2) inserted by Negotiable Instrument (Amendment) Ordinance 2015 ?
The answer would be certainly in negative. The reasons would be -
(i) the complaint was returned by JMFC Pamgarh in the light of decision of Supreme Court in Dashrath Rupsingh Rathod which at the relevant time was holding the field and has authority of law under Art.141 of Constitution of India and therefore the said judgment has a binding effect on all the Courts uptill the Ordinance, 2015 came into being.
(ii) Further reading of newly inserted S.142(2) shows that the same effect does not extend to the complaints already returned as it contains the words "The offence under S.138 shall be enquired into and tried only by court within whose local jurisdiction". So, if the complaint has already been returned and was not filed before the appropriate forum as per applicable law in force at the prevailing time no complaint would be presumed to be pending at that time.
Therefore, there was no question of enquiring into and trying the offence in absence of a complaint.'
16. On a consideration of the facts of this case, this Court is not persuaded to accept the view taken by the learned Single Judge of the Chattisgarh High Court for reasons more than one. The said legal position appears to be in variance to the legal position laid down by the Division Bench of this Court in Binoy K.Mathew's case supra, inasmuch as the Division Bench has held that the benefit of the non-obstante clause in Sec.142A of the N.I. Act could be Crl.M.C.823/16 & c.c - : 26 :-
granted even to complaints which were re-presented along with the delay condonation application. Though in Dashrath Rupsingh Rathod's case supra the Apex Court had held that the complaint is to be re-presented before the proper court within 30 days' time limit, the Division Bench has held in the Binoy K.Mathew's case supra that nothing in the said judgment would preclude the statutory powers conferred on the magistrate as per Sec.470 of the Cr.P.C. read with Sec. 142 proviso to clause (b) for considering the question of condoning delay beyond the said 30 days' time limit. So the clear effect of the view taken by the Division Bench of this Court is not only complaints, which are re-presented before "proper court"
within the said 30 days' time limit, but even complaints which are re-presented beyond the said 30 days' time limit, but along with delay condonation application can be given the benefit of the non- obstante clause of Sec.142A as per the Amendment provision if such a re-presented complaint along with delay condonation application is pending as on 15.6.2015. But more importantly the Division Bench held in para 20 of Binoy K.Mathew's case supra, that the petitioners therein could be permitted to present the complaints before the respective courts, where they were originally filed, and Crl.M.C.823/16 & c.c - : 27 :-
that on such presentation, the court shall treat the same as having been filed on the date on which respective complaints were originally filed. The said view taken by the Division Bench in para 20 appears to be clearly on the basis of the retrospectivity given to the operation of Sec.142(1), as duly introduced, by virtue of the mandatory language employed in Sec.142A(1). Secondly, the learned Single Judge of the Chattisgarh High Court has taken the view more particularly in para 11 thereof, that the complaint which was returned in the light of Dashrath Rupsingh Rathod's case supra, on the ground that when the complaint was returned by the magistrate, in the light of the decision of the Apex Court in Dashrath Rupsingh Rathod's case supra, the legal position laid down in Dashrath Rupsingh Rathod's case supra was holding the field and was having authority of law under Art.141 of the Constitution, etc. Their Lordships of the Apex Court in Bridge Stone's case supra has clearly held in para 16 thereof that the words, "... ... ... as if that sub-section had been in force at all material times..." used with reference to Sec.142(2), as per the language employed in Sec.142A (1) gives retrospectivity to the provision. In other words, notwithstanding the earlier legal position laid down by the Apex Crl.M.C.823/16 & c.c - : 28 :-
Court on 1.8.2014 as per Dashrath Rupsingh Rathod's case supra, the subsequent amendment as per Sec.142(2) should be treated to have been in force at all material times, by virtue of the categoric and mandatory language employed in Sec.142A(1) that should be treated as if Sec.142(2) had been in force at all material times.
17. However, the fact of the matters remains that the complainant in the instant case had never re-presented the complaint before the "proper court" after the return of the complaint by the Chief Judicial Magistrate's Court, Thalassery, on 23.9.2014. The complaint was taken back from the Thalassery court only on 14.9.2015 and was re-presented before the same court along with a delay condonation application as stated above. Therefore, as on the date of coming into force of the (Amendment) Ordinance, 2015 on 15.6.2015, the complaint was not re-presented at any point of time before 15.6.2015 (date of coming into force of the Amendment Ordinance) along with delay condonation application before the "proper court". But even if it is held that such complaints as in the instant one is not entitled to get the benefit of non-obstante clause in Sec.142A, there is yet another important aspect of the matter. The abovesaid legislative amendments made Crl.M.C.823/16 & c.c - : 29 :-
by the Parliament were essentially to take care of the interest of complainants, which faced dislocation in territorial jurisdiction due to the abovesaid Apex Court ruling in Dashrath Ruopsingh Rathod's case supra. In this regard this Court is persuaded to bear in mind the words of judicial wisdom expounded by the Apex Court in K.Bhaskaran v. Sankaran Vaidhyan Balan & Anr. reported in (1999) 7 SCC 510, wherein in para 21 it was held that the context envisaged in Sec.138 of the N.I. Act invites a liberal interpretation to the complainant, who is presumed to be the loser in the transaction and it is for his interests, that the very provision as per Sec. 138 has been made by the legislature. Therefore, the complainant in cases as in the instant one, cannot be placed in a position, which is far worse than the position that would have been available to him, if the Amendment Ordinance had not been brought into force. In case the N.I. (Amendment) Ordinance, 2015, had not been brought into force, then certainly by the view taken by the Division Bench in Binoy K.Mathew's case supra (paras 8 and 9 thereof), that nothing in Dashrath Rupsingh Rathod's case supra would have precluded the exercise of the statutorily conferred powers on the magistrate as per Sec.470 of the Cr.P.C. and Sec.142 clause (b) proviso thereto Crl.M.C.823/16 & c.c - : 30 :-
and that the magistrates could have lawfully considered the issue of condonation of delay in re-presenting such complaints beyond the time limit of 30 days permitted by the Apex Court. Sec. 470 of the Cr.P.C. reads as follows:
"Sec.: 470 Exclusion of time in certain cases.-(1) In computing the period of limitation the time during which any person has been prosecuting with due diligence another prosecution, whether in a court of first instance or in a Court of appeal or revision against the offender, shall be excluded :
Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent, or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent of sanction shall be excluded.
xxx xxx xxx (4) In computing the period of limitation, the time during which the offender,-
(a) has been absent from India or from any territory outside India which is under the administration of the Central Government, or
(b) has avoided arrest by absconding or concealing himself, shall be excluded."
Crl.M.C.823/16 & c.c - : 31 :-
Proviso to Clause (b) of Sec. 142 (1) (as it stood prior to the abovesaid amendment) reads as follows:
"Section 142: Cognizance of offences.-(1) ......
(a)......
(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."
The said provision has not undergone any substantiative amendment, except that it has been renumbered consequent to the insertion of sub section (2) as per the Amendment Ordinance. Therefore, in the light of these aspects, this Court is constrained to take the view that even if it is held that such a complaint as in the instant one, which has not been re-presented before the "proper court", as per Dashrath Rupsingh Rathod's case supra, at any time prior to 15.6.2015, will not get the benefit of the non-obstante clause of Sec.142A(1), still the position as laid down by their Lordships of the Division Bench of this Court in Binoy K.Mathew's case supra (paras 8 and 9), could be lawfully invoked. Even if such complaint had not been re-presented at any time prior to 15.6.2015 before the "proper court" as per the Dashrath Rupsingh Rathod's Crl.M.C.823/16 & c.c - : 32 :-
case supra, in view of the amended provisions in the N.I. (Amendment) Ordinance/Amendment Act, 2015, such complainants will have the liberty to again re-present such complaints before the court having jurisdiction as per Sec.142(2), after coming into force of that amended provision. But such re-presentation should be accompanied by a requisite application of condonation of delay, and in that process, the magistrate court concerned could lawfully consider the question of delay condonation in re-presenting the complaint by taking recourse to the powers conferred under Sec.470 of the Cr.P.C. read with proviso to clause (b) of Sec. 142.
18. But in such cases, the propriety and fairness demand that prior notice should have been issued to the accused before taking a considered decision thereon, mainly because the power envisaged in Sec. 470 of the Cr.P.C. or under proviso to clause (b) of Sec. 142 could be exercised only after affording a reasonable opportunity of being heard to the affected party (accused). But in the instant case, delay condonation application as per Anx.A-3, (which accompanied the re-presented complaint) has been considered and allowed by the magistrate court concerned without even issuing notice to the accused. In view of this, this Court is Crl.M.C.823/16 & c.c - : 33 :-
inclined to take the view that the impugned order dated 15.9.2015 issued by the Chief Judicial Magistrate's Court, Thalassery, allowing the delay condonation application as reflected in the endorsement in Anx.A-3, (separate copy of which is Anx.A-4 herein) allowing the condonation of delay is improper solely on the ground that reasonable opportunity of being heard was not given to the petitioner. This Court has not considered the merits of the delay condonation aspects and has only held that non-grant of a reasonable opportunity to the accused was improper. Therefore, the impugned order allowing the delay condonation application is liable to be set aside on the sole ground that a reasonable opportunity of being heard was not given to the accused. In that view of the matter, the impugned order dated 15.9.2015 passed by the learned Magistrate on Criminal Miscellaneous Petition No.4239/2015 in S.T.C.No.42/2012 is set aside on this sole ground and the delay condonation application will stand remitted to the court below for consideration of the matter afresh.
19. The delay condonation application will stand restored on the file of the learned Magistrate. In order to short circuit any further delay in the matter, it is ordered that the petitioner and the Crl.M.C.823/16 & c.c - : 34 :-
1st respondent complainant will ensure that their respective Advocates appear before the Chief Judicial Magistrate's Court, Thalassery, at 11 a.m. on 18.4.2017, and thereupon the learned Magistrate shall fix up a date of hearing of the delay condonation application to a near date. The petitioner/accused will be at liberty to file objections to the delay condonation application. So also, the 1st respondent complainant will be at liberty to file additional affidavit in aid of his contentions and submissions for condonation of delay. Orders on the delay condonation applicant should be passed without much delay, at any rate, within a period of one month from the abovesaid date, on which the parties have been directed to appear before the Magistrate. The learned Magistrate shall consider the application for delay condonation by taking into account the relevant facts and circumstances and should also take into account the legal principles laid down by the Division Bench of this Court in Binoy K. Mathew's case supra, as well as by the Apex Court in Dashrath Rupsingh Rathod's case supra and should also take into account broad legislative objectives sought to be achieved by the Parliament in the engrafting of the N.I. (Amendment) Ordinance, 2015 and N.I. Amendment Act, 2015. In case the learned Crl.M.C.823/16 & c.c - : 35 :-
Magistrate decides to condone the abovesaid delay, then needless to say, he will be at liberty to take back the complaint on the file and proceed in accordance with law.
20. It is brought to notice that during the original pendency of the complaint, a non-bailable warrant was issued against the petitioner accused and in view of the original return of the complaint and setting aside of the impugned order in this case, it goes without saying that the warrants, issued if any, against the petitioner at an earlier point of time will stand automatically recalled. The learned counsel for the petitioner accused submits that the petitioner is haling from Karnataka and has difficulties in frequently coming to the trial court for the conduct of the prosecution and that necessary orders in that regard may be issued by this Court, etc. Needless to say, in case the learned Magistrate decides to take back the complaint after condonation of delay, and after grant of bail to the petitioner on his application, the petitioner will be at liberty to file appropriate application under Sec.205 read with Sec.317 of the Cr.P.C. for exemption from personal appearance through his counsel, in which case, the learned Magistrate may consider the same in accordance with law.
Crl.M.C.823/16 & c.c - : 36 :-
21. Accordingly the following orders are passed:
(i) The impugned order dated 15.9.2015, allowing the delay condonation application as endorsed in Anx.A3 will stand set aside solely on the ground of non-compliance of principle of natural justice.
(ii) The delay condonation application will stand remitted to the Chief Judicial Magistrate's Court, Thalassery, for consideration of the prayer for condonation of delay afresh.
(iii) The learned Advocates appearing for the petitioner accused and the 1st respondent complainant will appear before the learned Magistrate at 11 a.m. on 18.4.2017, upon which the court will fix up a date for hearing of the petition and shall pass orders on the issue of delay condonation application after hearing both sides and after taking into account the various facts and circumstances as also the legal position laid down by the Division Bench of this Court in Binoy K. Mathew's case reported in 2015(4) KHC 243, as well as by the Apex Court in Dashrath Rupsingh Rathod's case reported in (2014) 9 SCC 129, Bridgestone India (P) Ltd's case reported in (2016) 2 SCC 75, etc. and also taking into account the legislative objectives sought to be achieved by the Parliament in the introduction of the N.I. (Amendment) Ordinance, 2015 and N.I. (Amendment) Act, 2015.
(iv) In case the learned Magistrate decides to condone the delay, needless to say, he will be at liberty take back the complaint on the file and proceed therewith in accordance with law. In such a case, as stated herein above, the impugned warrant if any, issued against the petitioner at the prior stage will stand automatically recalled. It is also made clear that in such case after grant of bail on the application moved by the petitioner, the petitioner will be at liberty to make appropriate application under Secs.205 and 317 of the Cr.P.C. for exemption from personal appearance which the learned Magistrate shall consider in accordance with law.
With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of.
Crl.M.C.823/16 & c.c - : 37 :- Crl.M.C.No. 823/2016:
22. In the instant the petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act in C.C.No. 2096/2014 on the file of the Judicial First Class Magistrate's Court- I, Kochi, which has been instituted by the 2nd respondent, on the basis of the complaint preferred by the 2nd respondent. The cheque in question was drawn on ICICI Bank, Wellington Branch, Kochi, by the petitioner accused in favour of the 2nd respondent complainant. The 2nd respondent complainant had delivered the said cheque for collection by the Idukki District Co-operative Branch, Rajakkad Branch, where the complainant was having an account. The complaint was preferred 3.9.2014. In view of the judgment dated 1.8.2014 of the Apex Court in Dashrath Rupsingh Rathod's case supra reported in (2014) 9 SCC 129, the Judicial First Class Magistrate's Court-I, Kochi, had passed the impugned Anx.A-2 order dated 30.10.2015, transferring the case to Judicial First Class Magistrate's Court, Thodupuzha, on the ground that the said court is having territorial jurisdiction as per Sec.142(2) of the N.I.Act as introduced by the N.I.(Amendment) Ordinance, 2015. It is this order that is under challenge in this instant case.
Crl.M.C.823/16 & c.c - : 38 :-
23. Heard Sri.Latheesh Sebastian, learned counsel appearing for the petitioner, Sri.P.Prejith, learned counsel appearing for the 2nd respondent complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the 2nd respondent State.
24. It is common ground that notwithstanding the earlier directions issued by the Apex Court in Dashrath Roopsingh Rathod's case supra, the territorial jurisdiction is now regulated by the provisions in contained in Sec.142(2) of the N.I. (Amendment) Ordinances, 2015 and N.I. (Amendment) Act, 2015. This position has been so held by the Apex Court in Bridge Stone India (P) Ltd. v. Inderpal Singh, reported in (2016) 2 SCC 75 as well as the Division Bench of this Court in Binoy K.Mathew v. Godley Dev John & Anr. reported in 2015 (4) KHC 243 (D.B). R-2 would submit that the magistrate's court at Kochi does not have territorial jurisdiction to deal with the complaint, in view of the newly introduced Sec.142(2) of the N.I. Act. The 2nd respondent complainant would contend that in view of the facts and circumstances of this case, the sole court, which has got territorial jurisdiction, to inquire into or try the case is the Judicial First Class Magistrate's Court, Adimali, as the said court is having territorial jurisdiction in respect of the area having Crl.M.C.823/16 & c.c - : 39 :-
jurisdiction over the areas in which the collection bank at Rajakkad is situated. However, learned counsel appearing for the petitioner accused would contend that apart from the said court at Adimali, the court at Kochi will also have territorial jurisdiction in the matter in view of Clause (b) of Sec. 142. However, both sides would agree that the court at Thodupzha to which the case has been transferred as per the impugned order, does not have any jurisdiction by virtue of Sec.142. Sec.142(2) as introduced by the (Amendment) Ordinance 2015 and (Amendment) Act 2015, reads as follows:
"Sec.142. (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
(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.' It has been categorically held in para 13 of Bridge Stone's case supra by the Apex Court that in view of the provisions contended in Sec.142(2) as well as the Explanation attached thereunder, the place Crl.M.C.823/16 & c.c - : 40 :-
where the cheque was delivered for collection, that is 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. Therefore it is not in dispute that the cheque in question was delivered for collection through the bank at Rajakkad, where the complainant is having his account. Therefore, going by Clause (a) of Sec.142(2), the court at Adimali will have territorial jurisdiction (the assumption made by the learned Magistrate that the court at Thodupuzha will have jurisdiction appears to be factually wrong and it is also confirmed by the learned Prosecutor that the court having territorial jurisdiction over the limits of the collection bank in question is the court at Adimali). The petitioner accused has no quarrel with the proposition that the court at Adimali has jurisdiction in view of Sec.142(2). However, the contention raised by the learned counsel appearing for the petitioner accused is that, not only the said court as per Clause (a) of Sec. 142 (2), but the court as envisaged in Clause (b) Sec. 142(2) will also have jurisdiction and the said court as per Clause (b) of Sec. 142(2) is the Judicial First Class Magistrate's Court at Kochi. To consider this contention raised by the petitioner it is to be noted that Crl.M.C.823/16 & c.c - : 41 :-
Sec.142(2) mandates that "The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction-- (a) .... (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." On this basis, it is contended by the petitioner accused that the court having territorial jurisdiction over the drawee bank will also have jurisdiction and as the drawee bank is the ICICI Bank at Wellington Island, Kochi, the court at Kochi, will have concurrent jurisdiction as per Clause (b) of Sec. 142.
25. Sec.138 of the Negotiable Instruments Act provides that where any cheque drawn by a person on an account maintained by him with a "banker" for payment of any amount of money to another person from and out of that account for discharge, in whole or in part, of any debt or other liability, is returned by the "bank" unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence punishable with imprisonment, as prescribed therein, subject to the conditions mentioned in Clauses (a), (b) and
(c) of the proviso thereto. Sec.3 of the Act, defines, "Banker", to Crl.M.C.823/16 & c.c - : 42 :-
include any person acting as a banker and any post office savings bank. Sec.72 of the Act provides that a cheque must, in order to charge the drawer, be presented at the bank, which it is drawn before the relation between the drawer and his banker have been altered to the prejudice of the drawer. Cosntrued these provisions in Secs.3, 72 and 138 of the N.I. Act, the Apex Court in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. reported in (2001) 3 SCC 609, has held in para 9 as follows:
'9. The use of the words "a bank" and "the bank" in the section is an indicator of the intention of the legislature. The former is an indirect (sic indefinite) article and the latter is prefixed by a direct (sic definite) article. If the legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is prefixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is prefixed by the definite article "the". The same section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote a particular thing or a person. "The" would, therefore, refer implicitly to a specified bank and not any bank. "The bank" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.' It has also been held in para 10 of the abovesaid ruling that Crl.M.C.823/16 & c.c - : 43 :-
however it does not mean that the cheque is always to be presented to the drawer's bank, on which the cheque is issued and the payee of the cheque has the option to present the cheque in any bank including the collecting bank, where he has his account but to attract the criminal liability of the drawer of the cheque, such collecting bank is obliged to present the cheque in the drawee or payee bank, on which the cheque is drawn within the prescribed period from the date on which it is shown to have been issued, etc. The prevalent traditions in respect to commercial transactions relation to N.I. Act have also been referred to by the Apex Court in para 6 of the said judgment. Paras 6, 8 and 10 of the said judgment read as follows:
"6. Before adverting to the various provisions of law as applicable in the case, it has to be kept in mind that the law relating to negotiable instruments is the law of the commercial world which was enacted to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, the trade and commerce activities were likely to be adversely affected as it was not practicable for the trading community to carry on with it the bulk of the currency in force. The introduction of negotiable instruments owes its origin to the bartering system prevalent in the primitive society. The negotiable instruments are, in fact, the instruments of credit being convertible on account of the legality of being negotiated and thus easily passable from one hand to another. The source of Indian law relating to such instruments is admittedly the English common law. The main object of the Act is to legalise the system by which instruments contemplated by it could pass from hand to hand by negotiation like any other goods. The purpose of the Act was to present an orderly and authoritative statement of the leading rules of Crl.M.C.823/16 & c.c - : 44 :-
law relating to the negotiable instruments. The Act intends to legalise the system under which claims upon mercantile instruments could be equated with ordinary goods passing from hand to hand. To achieve the objective of the Act, the legislature in its wisdom thought it proper to make provision in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special procedure in case the obligation under the instrument was not discharged. It has always to be kept in mind that Section 138 of the Act creates an offence and the law relating to the penal provisions has to be interpreted strictly so that no-one can ingeniously or insidiously or guilefully or strategically be prosecuted."
xxx xxx xxx
8. Section 138 provides that where any cheque drawn by a person on an account maintained by him with a "banker" for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by "the bank" unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence punishable with imprisonment as prescribed therein subject to the conditions mentioned in clauses (a), (b) and (c) of the proviso. Section 3 of the Act defines the "banker" to include any person acting as a banker and any post office savings bank. Section 72 of the Act provides that a cheque must, in order to charge the drawer, be presented at the bank upon which it is drawn before the relations between the drawer and his banker has been altered to the prejudice of the drawer.
xxx xxx xxx
10. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to (C) bank. The non-presentation Crl.M.C.823/16 & c.c - : 45 :-
of the cheque to the drawee bank within the period specified in the section would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Sections 3, 72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee.' Therefore, from a reading of the said judgment, more particularly, paras 6, 8, 9 and 10 thereof, it is clear that the payee of the cheque can either deliver the said cheque to the collection bank, where the payee has his account, so as to enable the collection bank to present the cheque before the drawee bank (bank from where the cheque is drawn) so as to get encashment of the monies covered by the said cheque from the drawee bank to the account of the payee maintained in the collection bank. In a case where the cheque is a crossed cheque, then the payee has no option, but to present it for collection through the bank where he has the account. However, where the cheque is not crossed, the payee is at liberty to deliver the same to his collecting bank, where has has account or to present it directly before the drawee bank. In such as case, where the payee has presented the cheque directly with the drawee bank for encashment, only then it can be said to have been presented by Crl.M.C.823/16 & c.c - : 46 :-
the payee before the drawee bank for payment otherwise through an account and it is in that contingency, the scenario covered by Clause (b) of Sec. 142(2) will arise. So long as the cheque in question is presented by the payee to the collection bank, where he has an account, then the territorial jurisdiction of the criminal court concerned for trying the offence under Sec.138 of the N.I. Act will vest only with the court as envisaged in Clause (a) of Sec. 142(2). Therefore, in a given factual scenario, the jurisdiction cannot be concurrent and if the cheque is sent for collection through an account, then the court which has jurisdiction is the one within whose local jurisdiction, the branch of the bank or holder in due course, as the case may be, maintains the account, is situated, alone will have jurisdiction. It is only in that scenario of cheque being presented otherwise, through an account and directly before the drawee bank that the jurisdictional facts envisaged in Clause (b) of Sec.142(2) will get attracted and it is only in such case that the court within whose local jurisdiction the branch of the drawee bank where the drawee maintains his account is situated, will have jurisdiction to try or inquire into the offence. Therefore, the contention raised by the petitioner accused that in a given case the jurisdiction Crl.M.C.823/16 & c.c - : 47 :-
envisaged as per Clauses (a) and (b) of Sec.142(2) will give concurrent jurisdiction to either of the 2 courts envisaged in Sec.142 is totally misconceived. In the facts and circumstances of this case, the cheque has been presented through the collection by the Idukki District Co-operative Bank, Rajakkad, where the complainant has an account and therefore, the situation covered by Clause (a) of Sec.142(2) alone will come into play. It is beyond doubt that the court having jurisdiction over the limits of the collection bank at Rajakkad is at Judicial First Class Magistrate's Court, Adimali. However, a reading of the impugned order, will show that the learned Magistrate has ordered to transfer the case to the Judicial First Class Magistrate's Court, Thodupuzha, on a mistaken assumption of the factual position, when in fact he ought to have transferred the case to the Judicial First Class Magistrate's Court, Adimali. Accordingly, in this view of the matter, the impugned order is set aside to the extent it transfers the case to the J.F.M.C., Thodupuzha, and that the case will stand transferred to the J.F.M.C., Adimali. In case the case records have not been transmitted from the court at Kochi, to the court at Thodupuzha, then it shall be ensured that the case records are transferred to the J.F.M.C., Crl.M.C.823/16 & c.c - : 48 :-
Adimali. However, in case the case records have already been transmitted to the J.F.M.C., Thodupuzha, in pursuance of the impugned order, then the court at Thodupuzha will ensure that the case records are transmitted to the J.F.M.C., Adimali, in the light of this direction. The Registry will forward a copies of this order to the abovesaid Magistrate courts at Kochi, Thodupuzha and Adimali, for for necessary action and compliance.
With these observations and directions, the Crl.M.C. stands finally disposed of.
sdk+ ALEXANDERSd/-
THOMAS, JUDGE
///True Copy///
P.S. to Judge