Karnataka High Court
Sri M Dharesh Babu vs Sri Sayyapa Rajusravan Kumar on 9 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION NO.1067 OF 2014
BETWEEN:
SRI M DHARESH BABU
S/O SRI. NAGESHWARA RAO
AGED ABOUT 48 YEARS
NEAR S L N COFFEE CURING WORKS
KIADB INDUSTRIAL AREA
KUDLUR VILLAGE
SOMWARPET TALUK
KODAGU DISTRICT
...PETITIONER
(BY SRI: S.N. PRASHANTH CHANDRA, ADVOCATE)
AND:
SRI SAYYAPA RAJUSRAVAN KUMAR
S/O SRI. S. GOPALA KRISHNAM RAJU
AGED ABOUT 30 YEARS
HIG-6, SRIMPHAPURI LAYOUT
VEPAGUNTA POST
VISAKHAPATNAM-530047
ANDHRA PRADESH
...RESPONDENT
(BY SRI: NISAR SAB, ADVOCATE-ABSENT)
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THIS CRIMINAL REVISION PETITION IS FILED U/S.397
R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
09.10.2014 PASSED ON THE APPLICTION FILED U/S 177 OF THE
CR.P.C. IN C.C.NO.1698/2013 ON ADDL. CIVIL JUDGE AND JMFC
AT SOMAWAR PET, SITTING AT KUSHALNAGAR, KODAGU DIST.
AND ALLOW THE COMPLAINT.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 30.09.2020 AND COMING
ON FOR PRONOUNCMENT OF ORDER, THROUGH VIDEO
CONFERENCE, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is directed against the order dated 09.10.2014 passed by the Additional Civil Judge and JMFC, Somwarpet, sitting at Kushalnagar, on the application filed by the respondent under Section 177 of Cr.PC. By the said order, the learned Magistrate allowed the application and directed return of the complaint along with original documents to the complainant to file the same before the proper jurisdictional court within 30 days therefrom.
2. Petitioner initially presented an appeal before this Court which has been later converted into revision petition under Section 397 of Cr.PC. Petitioner initiated action against the respondent/accused under Section 138 of the Negotiable 3 Instruments Act, 1881 ('NI Act' for short) on the ground that the cheque issued by the respondent/accused towards repayment of loan of Rs.1,50,00,000/- borrowed by the respondent was dishonoured.
3. Undisputedly, the cheque in question was drawn on ICICI Bank Limited, Vishakapatnam Branch on the account maintained by the respondent. The complainant presented the said cheque for encashment to ICICI bank, Kushalnagar and the said cheque was returned unpaid with an endorsement as 'funds insufficient'.
4. On service of summons, respondent/accused entered appearance and filed an application under Section 177 of Cr.PC relying upon the decision of the Hon'ble Supreme Court in Crl.Appeal No.2287/2009 seeking to transfer the complaint to the "cheque branch jurisdiction of court" . The application was opposed by the complainant. However, by the impugned order, the learned Magistrate by placing reliance on the above decision held that territorial jurisdiction is restricted to the court where the cheque is dishonoured by the Bank on which it is drawn and 4 accordingly, directed the complaint to be returned to the complainant for presentation before the jurisdictional court.
5. Section 142(2) of the N.I. Act has been amended subsequent to the decision of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod vs. State of Maharashtra and Another, reported in (2014) 9 SCC 129, by way of introduction of Section 142A, whereby all the pending proceedings are deemed to have been transferred under the said Act. Section 142A of the Act which was inserted by amendment in the year 2015, reads as under:
142A. 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 transferred to the court having jurisdiction under sub- section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015), shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times.
(2) Notwithstanding anything contained in sub-
section (2) of section 142 or sub-section (1), where the 5 payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015 more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015), before which the first case was filed and is pending, as if that sub-section had been in force at all material times.
6. In view of the above provision, by operation of law, all the pending proceedings are deemed to have been transferred to the court having jurisdiction under Sub-section (2) 6 of Section 142 of NI Act. Sub-section (2) of Section 142 provides that "the offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction, -
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. 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."
7. In the instant case, going by the averments made in the complaint, it is clear that the cheque in question was drawn by the respondent/accused on ICICI Bank Limited, Vishakapatnam Branch. The complainant presented the said 7 cheque for encashment to ICICI Bank, Kushalnagar, where he maintained the account. Since the cheque in question was delivered for collection through an account, namely, the branch of the bank, where payee namely, complainant maintained the account, that is at Kushalnagar, the proper court for trial of the above offence is at Kushalnagar, where the complainant had presented the complaint. The trial court has directed to return the cheque based on the decision of the Hon'ble Supreme Court in Crl.Appeal No.2287/2009. But, since then the provisions of the Act having been amended and the said amendment relating to the procedure is retrospective in operation, the impugned order cannot be given effect to.
8. Furthermore, by virtue of Section 142A(1) notwithstanding the decree, order or direction issued by the Court, all cases transferred to the Court having jurisdiction under Sub-section (2) of Section 142, are deemed to have been transferred to the court as if that sub-section has been in force at all material time. In that view of the matter, the impugned order cannot be sustained.
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9. Consequently, the petition is allowed. The impugned order dated 9.10.2014 is set aside. The proceedings in CC.No.1698/2013 shall continue before the learned Additional Civil Judge and JMFC at Somwarpet sitting at Kushalnagar as originally presented.
Since the matter is of the year 2014, trial court is directed to dispose of the matter as expeditiously as possible.
Both the parties are directed to appear before the trial court on 23.11.2020 without any further notice.
Sd/-
JUDGE Nd