Kerala High Court
Raju Mambatta vs Jimmy Joseph on 23 May, 2014
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 3RD DAY OF JULY 2017/12TH ASHADHA, 1939
Tr.P(Crl.).No. 22 of 2017 ()
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S.T.C.32/2016 of JUDICIAL FIRST CLASS MAGISTRATE
(MUNSIFF) COURT-II, THALIPARAMBA TO JUDICIAL FIRST CLASS
MAGISTRATE COURT, TIRUR
PETITIONER(S)/ACCUSED:
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RAJU MAMBATTA,
S/O DAMODARAN,
MAMBATTA HOUSE,
TIRUR P.O., TIRUR TALUK,
MALAPPURAM DISTRICT.
RESPONDENT(S)/COMPLAINANT & STATE:
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1. JIMMY JOSEPH,
S/O JOSEPH, 'THATTARAPPALLY',
P.O. CHANDANAKKAMPARA,
VIA PAYYAVOOR,
THALIPARAMBA-670 633.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM.
R1 BY ADVS. SRI.V.A.SATHEESH
SRI.V.T.MADHAVANUNNI
THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN
FINALLY HEARD ON 03-07-2017, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
EL
Tr.P(Crl.).No. 22 of 2017 ()
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE A TRUE COPY OF THE COMPLAINT
ANNEXURE B TRUE COPY OF THE NOTICE DATED 23.5.2014
ANNEXURE B1 TRUE COPY OF THE REPLY DATED 17.6.2014 TO
ADNN. B
RESPONDENT(S)' ANNEXURE
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NIL
TRUE COPY
P.S. TO JUDGE
EL
C.R.
ALEXANDER THOMAS, J.
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Tr.P.(Crl.) No.22 of 2017
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Dated this the 3rd day of July, 2017
O R D E R
The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.C.No.32 of 2016 on the file of the Judicial First Class Magistrate Court, Tirur, instituted on the basis of a complaint filed by the first respondent herein.
2. The dishonoured cheque dated 6.5.2014 is said to be for an amount of Rs.3,50,000/-. The cheque has been drawn from the account of State Bank of India, Tirur Branch, Malappuram. It is not in dispute that the cheque was sent for collection by the complainant through his account at North Malabar Gramin Bank, Payyavoor. It is stated that Annexure-A complaint was filed before the Judicial First Class Magistrate Court, Thaliparamba, Kannur District.
3. According to the petitioner/accused, the first respondent/complainant has deliberately chosen to file the complaint at Thaliparamba as a pressure tactics in order to burden and harass the accused unnecessarily. It is the case of the petitioner/accused that he has to examine the Bank Manager and other witnesses who were all at Tirur, to prove his innocence. It is stated that the cheque has been Tr.P.(Crl.) No.22/2017 ::2::
drawn from the account of State Bank of India, Tirur Branch, Malappuram District, and that the Bank officials are all based at Tirur, in Malappuram District. It is on this premise that the petitioner would urge that in order to ensure the smooth adducing evidence by the accused, the case may be transferred from the file of the Magistrate Court at Thaliparamba, Kannur District, to the Magistrate Court at Tirur, Malappuram District.
4. The petition was admitted on 21.2.2017 and notice has been issued to the first respondent/complainant. It was also ordered that pending consideration of the prayer of the petitioner for transferring the case, all further proceedings before the trial court will stand deferred. After service of notice, R1 has entered appearance. P.P. has also taken notice for R2/State. Thus service is complete.
5. The first respondent has filed a counter statement and additional counter statement for resisting the prayer for transferring the case.
In the first counter statement, it is stated that in view of the amended provisions contained in the Negotiable Instruments Act as per Section 142(2) as well as Section 142A , made effective from 15.6.2015, the prayer for transfer is untenable. In the additional counter statement filed by the first respondent, it is also contended that merely because the Tr.P.(Crl.) No.22/2017 ::3::
Bank officials and other witnesses of the defence are at Tirur and that they may have some inconvenience to travel to Thaliparamba, is not a good ground to transfer the case to the court from Thaliparamba to the court at Tirur as the petitioner is urging such a factual ground only for alleviating his inconvenience and difficulties. It is pointed out that the convenience and inconvenience of both parties should be evaluated judiciously by the court and that the present plea made by the accused that the case should be transferred to Tirur only on the ground that the witnesses proposed by the defence are all based at Tirur and that they have inconvenience to travel from Tirur to Thaliparamba, is not a ground for transfer. It is further pointed out by the respondent-complainant that legality and justice would warrant the rejection of the plea for transfer of the case.
6. As regards the first contention, it is to be noted that the provisions contained in the Negotiable Instruments Act have been amended with effect from 15.6.2015, so as to insert subsection (2) to Section 142 as well as Section 142A thereof. Sub-Section (2) of Section 142 and sub-section (1) of Section 142A read as follows:
"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 couse, 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 Tr.P.(Crl.) No.22/2017 ::4::
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."
"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 (Order 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."
It is true that as per the mandate of the said amended provision as contained in sub-section (2) (a) of Section 142 as well as sub section (1) of Section 142A, it has been stipulated therein that the offence under Section 138 of the N.I. Act shall be inquired into and tried only by a court within whose local jurisdiction, 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. The factual scenario contemplated by clause (b) of sub section (2) of Section 142 does not arise in the facts of this case in as much as there is no dispute that the cheque in question was sent by the complainant for collection through his account at North Malabar Gramin Bank, at Payyavoor, Kannur District. It is also not in dispute that the Judicial Magistrate Court having territorial jurisdiction over the area of the said collection Bank Branch is the Judicial First Class Magistrate's Court at Tr.P.(Crl.) No.22/2017 ::5::
Thaliparamba, Kannur District. This Court by a detailed order dated 21.6.2017 in Crl.M.C.No.6356 of 2016 has considered the issue as to whether the said provisions contained in Section 142A (1) would be in any manner affect the judicial power of the designated courts to order for transfer of cases.
7. The provisions contained in Section 192 and Section 410 of the Cr.P.C. grant power to the Chief Judicial Magistrate to make over/withdraw cases as envisaged in that Section. The only limitation in exercise of the power in Section 192 is that the decision by the Chief Judicial Magistrate to make over the case either to the himself or to any other Magistrate as envisaged in that Section should have been done only after taking cognizance. If the Magistrate has taken cognizance and then exercised his power under Section 192(1), then it will amount to judicial exercise of power. So also, the power conferred on the Magistrate as per Section 410 of the Cr.P.C. is also a judicial power.
Sections 192 and 410 read as follows:
"192. Making over of cases to Magistrates:- (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial."
410. Withdrawal of cases by Judicial Magistrates - (1) Any Chief Tr.P.(Crl.) No.22/2017 ::6::
Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.
(2) Any Judicial Magistrate may recall any case made over by him under sub-section (2) of Section 192 to any other Magistrate and may inquire into or try such cases himself.
8. From a scanning of the provisions contained in Chapter XXXI of the Cr.P.C., it can be seen that the judicial powers have also been conferred on the Sessions Court, the High Courts and the Supreme Court as per Sections 408, 407 and 406 respectively, for exercising the judicial discretion in the matter of transfer of cases, subject to the conditions stipulated in those provisions. Sections 408, 407 and 406 provide as follows:
"408. Power of Sessions Judge to transfer cases and appeals :- (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one criminal court to another criminal court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower court, or on the application of a party interested or on his own initiative.
(3) The provisions of sub-sections (3), (4),(5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of Section 407, except that sub-section (7) of that section shall so apply as if for the words "one thousand rupees" occurring therein, the words "two hundred and fifty rupees" were substituted.
407. Power of High Court to transfer cases and appeals - (1) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the Tr.P.(Crl.) No.22/2017 ::7::
parties or witnesses, or is expedient for the ends of justice, it may order:-
(i) That any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial to a Court of Session ; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another criminal court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate- General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case of appeal from any subordinate court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate court's power of remand under Section 309.
(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any court for trial before itself, it shall observe in such trial the same procedure which that court would have observed if Tr.P.(Crl.) No.22/2017 ::8::
the case had not been so transferred.
(9) Nothing in this Section shall be deemed to affect any order of Government under Section 197.
406. Power of Supreme Court to transfer cases and appeals:- (1) Whenever it is made to appear to the Supreme Court that an order under this Section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this Section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate- General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case." So also, it can be seen that Article 227 of the Constitution of India confers the constitutional power to the High Courts in the matter of visitorial jurisdiction of superintendence over the Courts and Tribunals. The said constitutional power could also be appropriately exercised by the High Courts in judicially deciding whether or not, discretion should be exercised for transferring cases in appropriate cases. The judicial powers conferred on the designated courts as mentioned herein above, cannot in any manner be whittled down or diluted by the provisions contained in Section 142(2) and Section 142A(1) of the N.I.Act.
9. It is true that the Apex Court in the judgment in Tr.P.(Crl.) No.22/2017 ::9::
Bridgestone India (P) Ltd. v. Inderpal Singh, reported in (2016) 2 SCC 75, has held in paragraph 13 thereof that in view of the provision contained in the amended Section 142(2) read with the explanation thereunder would make it clear that the place where a 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, etc. (see paragraph 13 of the SCC report). It has also been held in paragraph 16 thereof that the words, "...... as if that sub-section had been in force at all material times...." employed in Section 142-A(1) used with reference to Section 142(2) would give retrospectivity to that provision, etc. But it is to be noted that the non-obstante clause in Section 142A(1) is with respect to the issue as to which Magistrate Court will have territorial jurisdiction to inquire into or try the offence under Section 138 of the Negotiable Instruments Act. If there are any other provisions in the Cr.P.C. like Section 177 Cr.P.C. or any other judgment, etc. on that point, then these new provisions made effective from 15.6.2015 would have overriding effect over such provisions or judgments, etc. This alone is the import of Section 142(2) read with Section 142-A(1) of the amended Negotiable Instruments Act. Can it be imagined or countenanced even for a moment that the judicial power vested with the courts concerned in Tr.P.(Crl.) No.22/2017 ::10::
terms of the specific provisions contained in the Cr.P.C. in the matter of transfer of cases, would lose its significance merely because the introduction of these new amended provisions and that the courts will be totally denuded of the judicial power to decide even judicially as to whether or not such transfer plea should be considered or not ? The answer can only be an emphatical, "No". The said amended provisions cannot be construed in any manner diluting or whittling down the judicial power of the designated courts in terms of the provisions contained in the Cr.P.C. to decide judicially in exercise of the discretion as to whether or not the plea for transfer should be considered, but subject to the conditions stipulated in the relevant provisions thereof. If the contentions of the first respondent is accepted, it will amount to denuding the Courts of the judicial powers to even consider the plea for transfer. Accordingly, the first objection raised by the first respondent complainant will stand overruled.
10. However, now it would be appropriate to consider the second objection raised by the complainant. The only ground on which the petitioner has made out for transfer of the case is that the drawee Bank of the accused is at Thaliparamba and that for tendering defence evidence, he proposes to cite the officials of that drawee Bank and documents which are now in the Bank at Thaliparamba and that those Tr.P.(Crl.) No.22/2017 ::11::
defence witnesses based at Tirur will find it extremely difficult to travel all the way from Tirur to the court at Thaliparamba. This is the main ground on which the plea of transfer is urged by the petitioner. The first respondent/complainant is surely right in contending that such a plea by itself cannot be the basis for transfer. The petitioner is giving emphasis only on the alleged inconveniences to be faced by the defence witnesses, who are said to be based at Tirur. While considering such a plea, the complainant is fully right in arguing that the court will have to exercise its discretion by assessing all the relevant aspects of the matter and also weighing the conveniences and inconveniences that would be caused to both sides.
11. Accordingly, this Court is the firm view that the plea for transfer merely on the ground that the defence witnesses may face inconvenience from travelling all the way from Tirur to Thaliparamba is not a proper ground for this Court to exercise its discretion to grant such a plea.
In the light of these aspects, the Transfer Petition will stand dismissed.
ALEXANDER THOMAS JUDGE csl