Karnataka High Court
Gopal Krishna S/O Srinivasa vs Abdul Bakai S/O Hussain Basha on 19 March, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
R
DATED THIS THE 19TH DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.2124/2011
BETWEEN:
GOPAL KRISHNA S/O: SRINIVASA,
AGE: 39 YEARS,
R/O: BENGALI POMPANNA'S HOUSE,
HALECHAPPARADAHALLI,
TQ: SANDUR, DIST: BELLARY.
...PETITIONER
(BY SRI J.BASAVARAJ, ADVOCATE)
AND:
ABDUL BAKAI
S/O: HUSSAIN BASHA,
AGE:37 YEARS,
R/O: DADAJI FLUR MILL,
OPP: BEO OFFICE,
TQ: SANDUR, DIST: BELLARY.
...RESPONDENT
(BY SRI. GODE NAGARAJ, ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 397 AND 401
OF CR.P.C., SEEKING TO CALL FOR RECORDS, PERUSED THE
SAME, ALLOW THE PETITION AND SET ASIDE THE JUDGMENT
OF CONVICTION AND SENTENCE PASSED BY THE LEARNED
ADDL. SESSIONS JUDGE, BELLARY IN CRIMINAL APPEAL
NO.126/2009 DATED 15.03.2011 AND THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE LEARNED CIVIL
JUDGE (JR.DN) AND JMFC, SANDUR IN C.C.NO.1173/2007, AND
SET THE PETITIONER AT LIBERTY.
2
RESERVED FO R O RDER ON : 07.03.2019.
ORDER PRONOUNCED ON : 19.03.2019.
THIS REVISION PETITION BEING HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The revision petitioner who is accused herein has filed this revision petition under Section 397 r/w 401 of Cr.P.C., praying this Court to set aside the judgment of conviction and sentence passed by the learned Addl. Sessions Judge, Bellary in Criminal Appeal No.126/2009 dated 15.03.2011 and the judgment of conviction and sentence passed by the learned Civil Judge (Jr.Dn) and JMFC, Sandur in C.C.No.1173/2007, and set the petitioner at liberty.
2. The brief facts of the case are that, the complainant who filed the complaint before the Civil Judge (Jr.Dn) & JMFC, Sandur under Section 200 of Cr.P.C., against the accused for the offence punishable 3 under Section 138 of N.I.Act. It is contended by the complainant that the accused has borrowed the hand loan of Rs.2,00,000/- from the complainant for the purpose of doing lorry transport business and issued cheque in favour of the complainant. The said cheque was presented through Vysya Bank, Hospet for collection on 14.06.2007 and the same was dishonored for want of sufficient funds. Thereafter, the complainant has issued the legal notice and the same was served on him and he has not given any reply to the notice and also not paid the amount. Hence, the complainant filed the complaint before the lower Court and lower Court has taken cognizance and recorded the evidence. The complainant relied upon the documents of Exs.P1 to P6 and also examined himself as PW.1 and also witness as PW.2. The accused did not choose to lead any rebuttal evidence. The Court below having considered the evidence of PWs.1 and 2 and the 4 documentary evidence of Exs.P1 to P6, convicted the accused for the offence punishable under Section 138 of N.I.Act and to undergo simple imprisonment for 6 months and fine of Rs.2,000/-. Acting under Section 367 of Cr.P.C., directed the accused to pay the compensation of Rs.2,00,000/- to the complainant and in default of payment of fine, he shall undergo simple imprisonment for 6 months. The same has been challenged before the Appellate Court in Criminal Appeal No.126/2009 and the judgment conviction of lower Court was confirmed vide judgment dated 15.03.2011 and dismissed the appeal. Being aggrieved by the judgment of conviction and confirmation, the accused has filed this revision petition.
3. The main contention of the revision petitioner is that the cheque was dishonored at Hospet and complaint was filed at Sandur. PW.1 also admitted in the cross-examination that the cheque was presented at 5 Hospet and both the Court failed to consider the jurisdiction of the Court which has been raised in the lower Court. The Appellate Court also erred the same and dismissed the appeal. In support of his contention, he relied upon the judgment reported in 2016 AIAR (Criminal) 188 in the case of M/s Bridgestone India Pvt. Ltd., Vs Inderpal Singh, the counsel relied upon this judgment and contended that the amendment was occurred in the year 2015 under Section 142 of N.I.Act.
Section 142A of N.I.Act, as inserted by Negotiable Instruments (Amendment) Second Ordinance 2015- Place of territorial jurisdiction of Court to entertain/try said offence- Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the N.I. 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 6 payee or holder in due course maintains an account) - when the cheque in question dated 02.05.2006 drawn on Union Bank of India Chandigarh was presented for encashment at the IDBI Bank, Indore which intimated its dishonour to the payee or holder in due course, on 04.08.2006 - Court at Indore would have the territorial jurisdiction to take cognizance of the proceedings by complainant under Section 138 of N.I.Act, 1881, after promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015 - In such circumstance, in view of Section 142A(1), the judgment rendered by Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra and another, (2014) 9 SCC 129, would not stand in the way of such complainant insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in question.
4. The counsel also relied upon the amended act of N.I.Act, insofar to Section 142 and also Section 142A 7 and contends that in terms of Section 142A, which is location where the cheque is dishonored or returned unpaid by the bank on which it is drawn. Place of issuance of delivery of the statutory notice or where the complainant chose to present the cheque for encashment by his bank as per Dashrath Rupsingh Rathod's case, were not relevant for purpose of determining territorial jurisdiction of filing of cheque dishonored.
5. For having invoking Section 142A of the N.I.Act, he contends that the complaint filed at Sandur is not in accordance with law and ought to have been filed the complaint before the Hospet, where the cheque was dishonored. Hence, he prayed this Court to set aside the judgment of conviction and also the confirmation.
6. Per contra, learned counsel for the respondent in his arguments, contends that the accused did not raise 8 the defence before the lower Court that the Court has no jurisdiction to try the offences and only at the first time the said defence was raised in the First Appellate Court and the First Appellate Court has rightly held that both the parties are residing at Sandur and transaction was taken place at Sandur and cheque was also issued at Sandur. Hence, the question of entertaining the said defence does not arise. In paragraph No.19 of the judgment of the First Appellate Court in detail discussed about the maintainability of the complaint and there is no any merit in the revision petition since the concurrent findings were given by the lower Court and also the First Appellate Court. Hence, prayed this Court to dismiss the revision petition.
7. The counsel for the complainant also relied upon the judgment of the Supreme Court reported in LAWS (SC)-2010-5-19 in the case of Rangappa Vs Mohan, and contends that no dispute with regard to issuance of 9 cheque and also he has not given any reply to the legal notice and counsel brought to my notice paragraph No.7 of the judgment which has been discussed with regard to the invoking of Section 139 of N.I.Act and also not given any reply to the notice. Hence, the Hon'ble Apex Court held and observed that the accused had failed to reply to the statutory notice issued under Section 138 of N.I.Act, which lead to the fact that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability.
8. The counsel also relied upon the judgment of the Hon'ble Apex Court reported in LAWS (SC) 2015 4 87 in the case of Ultra Tech Cemnt Ltd, Vs. Rakesh Kumar Singh and Others, and brought to my notice that Section 138 and 145 - complaint - jurisdiction of Court - In cases where post the summoning and 10 appearing of the alleged accused recording of evidence has commenced proceeding initiated prior to rendering of judgment in Dashrath Rupsingh Rathod's case 2014 (9) SCC 129, shall continue at the same place and brought to my notice the paragraph No.5 of the said judgment with regard to that only when recording of evidence at the post-summoning stage had commenced, before 01.08.2014 (the date on which the judgment in Dashrath Rupsingh Rathod's case was pronounced), such proceedings would not be dislodged, the declaration of law, on the subject of jurisdiction, in Dashrath Rupsingh Rathod's case. Further, held that the accused was examined under Section 251 of the Code of Criminal Procedure, and the substance of the allegations were read over to him, whereupon, the accused having pleaded not guilty, the matter was adjourned for recording evidence on 31.12.2008. On 22.04.2009, the appellant filed an affidavit to be treated 11 as the statement-in-chief of PW.1, whereupon, PW-1 was to be cross-examined. The Metropolitan Magistrate, 11th Court, Calcutta, then posted the matter for 22.07.2009 for the cross-examination of PW.1. The date for the cross-examination of PW.1 was first adjourned to 15.12.2009 and thereafter successively to 25.05.2010, 21.09.2010, 25.07.2011 and finally to 09.12.2011. Further observed that, satisfied that evidence had commenced in the present matter, as envisaged by Section 145(2) of the Negotiable Instruments Act, 1881, in terms of the clarification recorded in paragraph No.22, in Dashrath Rupsingh Rathod's case. That being the factual position, we are of the view, that the instant appeal is liable to be allowed. The same is accordingly allowed. The Metropolitan Magistrate, 11th Court, Calcutta will be deemed to have jurisdiction to entertain the controversy arising out of the complaint filed by the appellant under Section 138 of the Negotiable 12 Instruments Act, 1881. The said Court shall accordingly proceed with the matter, in consonance with law.
9. The counsel referring this judgment, he contends that the matter had already been adjudicated prior to the amendment and the judgment is very clear that when recording of evidence at the post summoning stage had commenced on 01.08.2014 the date on which the judgment was delivered in Dashrath Rupsingh Rathod's case such proceedings would not be dislodged, the declaration of law, on the subject of jurisdiction in Dashrath Rupsing Rathod's case. Hence, this Court cannot set aside the order on the ground that no jurisdiction. Hence, prayed this Court to dismiss the revision petition.
10. After having heard the arguments of the counsel for accused/revision petitioner and counsel for 13 accused/complainant, the points that arises for my consideration are;
(a) Whether the complaint ought to have been filed before the Hospet Court instead of Sandur Court as Sandur Court without territorial jurisdiction?
(b) Whether the Courts below have committed an error in appreciating the evidence available on record and the same is perverse?
Point No.1:
11. Admittedly, no dispute with regard to the issuance of cheque and the cheque amount is mentioned as Rs.2,00,000/- and both the Courts below have comes to the conclusion that the cheque belongs to the accused. The lower Court as well as First Appellate Court comes to the conclusion that the accused did not rebut the evidence of the complainant and accused also did not chose to reply to the notice of the complainant. 14
12. The main contention of the revision petitioner before this Court is that the complainant has presented the cheque at ING Vysya Bank, Hospet, for the collection and the said cheque has been dishonored and the intimation was sent through the ING Vysya Bank, Hospet and as such the Court at Sandur has no jurisdiction to take cognizance of the case. The JMFC Court, Hospet, is competent to take the cognizance of the case and as such the trial Court ought to have dismissed the complaint on the jurisdictional point. The counsel appearing for the revision petitioner i.e. accused in his arguments, he contends that PW.1 has admitted that the cheque is presented at Hospet and in spite of the same, both the Courts have not considered his defence. Hence, it requires the interference of this Court. In support of his contention, he relied upon the judgment of the Apex Court reported in 2016 AIAR (Criminal) 188 in the case of M/s Bridgestone India 15 Pvt. Ltd., Vs Inderpal Singh. The Apex Court in this judgment having considered Section 138, 142(1), (2) Explanation and Negotiable Instruments (Amendment) Second Ordinance 2015, Sections 3, 4 and Section 142A of N.I. Act as inserted by N.I. (Amendment) Second Ordinance, 2015 , held with regard to the place of territorial jurisdiction of Court to entertain/try said offence - Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the N.I.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).
13. For having taken note of the said fact into consideration in the said judgment observed that the 16 cheque in question was drawn at Chandigarh was presented for encashment at Indore, which intimated its dishonor to the payee or holder in due course. Hence, held that the Court at Indore would have the territorial jurisdiction to take cognizance of the proceedings by complaint under Section 138 of N.I.Act. For having taken note of the principles enunciated in the judgment referred supra and also the factual aspects of this case has to be taken note of.
14. The counsel appearing for the respondent has relied upon the judgment of the Apex Court which was rendered in 2010 and this judgment has no consequence in view of the subsequent amendment of Section 142. However, he also relied upon the judgment of the Apex Court decided on April 24, 2015 in the case of Ultra Tech Cement Ltd., Vs Rakesh Kumar Singh and Others, reported in LAWS (SC) 2015 4 87, and brought to my notice paragraph No.5 of the judgment 17 and contends that the Apex Court held in this judgment that when recording of evidence at the post summoning stage had commenced before 01.08.2014, the date on which the judgment in Dashrath Rupsingh Rathod's case was pronounced, such proceedings would not be dislodged, the declaration of law, on the subject of jurisdiction, in Dashrath Rupsingh Rathod's case.
15. Having relied upon this judgment, the counsel contends that at the time of filing of the complaint in the year 2009, when the complaint was filed, the amendment was not in existence and the same is amended in the year 2015, inserting the proviso of Section 142(2) and by that time already trial was completed and even criminal appeal also disposed of in the year 2011 itself. Hence, this Court cannot invoke the territorial jurisdiction issue before this Court and prayed this Court to dismiss the revision petition. 18
16. In keeping the principles laid down in the judgments referred supra and also the contentions raised by both the counsel for accused and also the counsel for complainant, this Court has to examine the material on record.
17. No dispute with regard to the fact that the cheque was presented by the complainant through ING Vysya Bank, Hospet for collection on 14.06.2007 for encashment. The said cheque was dishonored and bank issued an endorsement dated 29.06.2007, stating that fund is insufficient in the accused account. Thereafter, the complaint was filed in 2007 itself. The complainant also examined himself as PW.1 and also examined witness PW.2 and relied upon Exs.P1 to P6. The accused also led his evidence before the lower Court and he did not rely any documentary evidence. The matter is disposed of on 19.08.2009. Being aggrieved by the judgment of conviction, the accused has preferred 19 the criminal appeal No.126/2009 and the same is also disposed of by confirming the judgment of the lower Court on 15.03.2011. No doubt, the lower Court proceedings and First Appellate Court proceedings were completed before 2011 itself.
18. It has to be noted that an amendment was brought in 2015 to Section 142(2). I would like to refer the proviso of section 142(2);
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 20 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.
19. I would also like to refer the amendment of proviso of Section 142-A, which also amended vide Act, 26 of 2015 and the same came into force from 15.06.2015. I would also like to refer the amended provision of Section 142-A herein below;
142-A. Validation for transfer of pending cases. -(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or direction of any court, all cases 21 transferred to the court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times.
20. Having read the proviso of amended Negotiable Instruments Act under Section 142(2) and also the explanation as well as Section 142-A regarding validation of transfer of pending cases, it is clear that any judgment, decree, order or direction of any court, all cases should be transferred to the Court having jurisdiction under sub-section(2) of Section 142. Further, in Section 142-A, it is specific that, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times.
21. Having analyzed Section 142(2) and also the explanation and also Section 142-A, and also the 22 principles laid down in the judgment referred supra i.e. M/s Bridgestone India Pvt. Ltd., Vs Inderpal Singh, wherein the Apex Court has categorically held that the jurisdiction for initiating the proceedings for the offence under Section 138 of the N.I.Act, inter-alia, in the territorial jurisdiction of the Court, where the cheque is delivered for collection that too through an account of the branch of the bank where the payee or holder in due course maintains an account. Further observed regarding Section 142-A and held that it is imperative for the present controversy, that the 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 Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted into the Negotiable Instruments Act. A perusal of Sub- 23 Section(1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of 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 Section 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 Section 138 of the Negotiable Instruments Act is concerned. Further observed that, in the above view of the matter, they are satisfied with the judgment rendered by the Apex Court in Dashrath Rupsingh Rathod's case would also not non-suit the appellant for the relief claimed.
22. Having said so, the Apex Court comes to the conclusion that based on Section 142A, to the effect, 24 that the judgment rendered by the Apex Court in Dashrath Rupsingh Rathod's case, wouldnot stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the said case. The Apex Court interpreting the proviso of Section 138, 142A, 142(2) and also Section 142(a) of N.I.Act, comes to the conclusion that the Indore Court would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881, after the promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015. Further observed that, The words "...as if that sub-section had been in force at all material times..." used with reference to Section 142(2), in Section 142A(1) gives retrospectivity to the provision. For having said so, allowed the appeal and directed the parties to appear 25 before the Judicial Magistrate, First Class, Indore and fixed the date. Further directed that in case the complaint filed by the appellant has been returned, it shall be represented before the Judicial Magistrate, First Class, Indore, Madhya Pradesh, on the date of appearance indicated therein above.
23. Having taken note of the principles laid down in the judgment referred supra and also the amendment which are brought to the Negotiable Instruments Act, in 2015 i.e. Section 142(2) and also Section 142A and even if the trial proceedings were taken prior to the bringing of the Amendment Act and in view of the specific amendment and also the interpretation that the sub- section had been in force at all material times and also transferring the cases, even if any judgment, decree, or order passed vide Section 142(a), judgment has to be set aside and the same has to be decided in the territorial jurisdictional Court. The counsel for respondent 26 vehemently contended that both of them were residing at Sandur i.e. complainant and accused and cheque is only presented at Hospet. Hence, the contention of the revision petitioner cannot be accepted. The said contention also cannot be accepted in view of the amendment brought into Section 142(2) and also Section 142A of Negotiable Instruments Act, which is inserted in 2015. All these aspects are considered in detail in the judgments referred supra. The Apex Court also set aside the judgment and in the judgment also it is referred that the cheque in question dated 02.05.2006, drawn on Union Bank of India Chandigarh was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the payee or holder in due course, on 04.08.2006. Further observed, that Court at Indore would have the territorial jurisdiction to take cognizance of the proceedings by complainant under Section 138 of N.I.Act, 1881, after promulgation 27 of the Negotiable Instruments (Amendment) Second Ordinance, 2015.
24. In the case on hand, the cheque was issued in 2007 and the same was presented in 2007 itself and the same was dishonored. The endorsement was given by the branch at Hospet of the complainant who presented the cheque in Hospet and case is filed before the Sandur Court. When such being the case, the proviso of Amendment Act of 2015, aptly applicable to the case on hand and so also the judgment of the Apex Court in the case of M/s Bridgestone India Pvt. Ltd., Vs Inderpal Singh, is also aptly applicable to the case on hand. Hence, the contention of the respondent cannot be accepted and there is force in the contention of the counsel for revision petitioner to interfere with the order of the Court below and to set aside the judgment of conviction and confirmation and hence the point No.1 is answered as affirmative and consequently considering of 28 point No.2 doesn't arise. In view of the discussions made above and also taking note of the complaint is of the year 2007, it is necessary to stipulate the time to dispose of the matter in accordance with law. The date may be fixed for the parties to appear before the jurisdictional Court. Having taken note of the proceedings is almost of 12 years and appropriate direction is necessary to dispose of the matter as early as possible.
25. In view of the discussions made above, I pass the following;
ORDER The revision petition is allowed.
The impugned order passed by the lower Court as well as the First Appellate Court are hereby set aside.
The parties are directed to appear before the JMFC at Hospet on 01.04.2019.
29
The lower Court is directed to return the complaint before the said date, the parties shall be present before the JMFC Hospet on the date of appearance indicated above. The said Court is directed to dispose of the matter within three months from 01.04.2019.
The parties are directed to appear without expecting any notice from the Court of Hospet and assist the Court to dispose of the matter within the stipulated time.
Sd/-
JUDGE msr