Bangalore District Court
Smt. Leena Devaraj vs W/O. Sri. Devaraj on 30 January, 2020
IN THE COURT OF THE IV ADDL. CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT, BENGALURU (CCH21)
Dated: This the 30th day of January 2020
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G. B.A. LL.B.,
IV Addl. City Civil and Sessions Judge, Bengaluru
(CONCURRENT CHARGE)
CRL.R.P.NO.25037/2017
PETITIONER/ SMT. LEENA DEVARAJ
ACCUSED W/o. Sri. Devaraj
Aged about 39 years
R/at: No.85
Krishnappa Garden
Near Bagmane Tech park
C.V.Raman Nagar
Bengaluru - 560 093.
.. Vs ..
COMPLAINANT/ SMT. S.N.YUVARANI
RESPONDENT W/o. Sri. Girichander
Aged about 43 years
R/at: No.12/1
II Floor, S.N.T.Street
Gupta Layout, Ulsoor
Bengaluru - 560 008.
JUDGMENT
Petitioner, the accused in C.C.50211/2017 on the file of 58 th Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru 2 Crl.R.P.25037/2017 has filed the instant petition challenging the order dated:10.04.2017 passed by the said Court dismissing the application filed by her U/Sec.203 R/w Sec.227 & 258 of Cr.P.C.
For convenience the parties are also referred to, as per their ranking in the Trial Court.
FACTS OF THE CASE:
2. Complainant has filed private complaint against accused for the offence punishable U/Sec.138 of N.I.Act. After amendment to the N.I.Act by the Act in 2015 regarding jurisdiction, vide order dated:03.09.2016 the 19th A.C.M.M has passed an order to transfer the case to the jurisdictional Court.
The complainant presented the complaint before the jurisdictional court on 12.01.2017. The transferee court has registered the complaint by making observation that, there is delay of 4 months in presenting the complaint and it is kept open for consideration. Placing reliance on the said observation, accused filed application U/Sec.203 R/w Sec.227 & 258 of Cr.P.C to discharge him from the offence punishable U/Sec.138 of N.I.Act or to dismiss the complaint U/Sec.203 of Cr.P.C. The said 3 Crl.R.P.25037/2017 application was dismissed on 10.04.2017. Being aggrieved by the said order, accused has filed the instant Revision Petition.
3. In the petition, it is stated that, there is delay of 4 months in presenting the complaint to the jurisdictional court. The complainant has not filed delay condonation application. Without condoning the delay, the case cannot be registered and cognizance cannot be taken. Hence taking of cognizance and registration of case is illegal and therefore the accused is entitled for discharge.
4. After service of notice, the respondent appeared through counsel Sri.L.M.
5. Heard the learned counsel for the petitioner. Though sufficient time given, respondent has not submitted arguments.
6. The point for consideration is:
Whether the Trial Court has committed any error or illegality in passing the impugned order, warranting the interference of this Court?4
Crl.R.P.25037/2017
7. My finding on the above point is in the Negative for the following:
REASONS
8. A perusal of record would show that, initially the complainant has presented the complaint before the 14 th A.C.M.M on 12.02.2014. on 23.09.2014, the said Court has returned the complaint to present before the jurisdictional court. Accordingly the complaint was presented before the jurisdictional Court on 13.09.2014. Cognizance was taken, sworn statement was recorded and summons was issued to accused. Accused appeared before the Court and he was released on bail. Accusation was framed. On 29.06.2016 complainant examined himself as PW1. When the case was posted for cross examination of PW1, on 03.09.2016 the Trial court taken into consideration the amendment to the N.I.Act by the Act in 2015 regarding jurisdiction has transferred the case to 14 th A.C.M.M. The operative portion of the order reads thus:
"Office to transfer the entire case file to the jurisdictional court for 5 Crl.R.P.25037/2017 disposal in accordance with law through complainant by hand."
9. The learned counsel for the petitioner has strenuously contended that, in the above order, it is clearly stated that, complainant has to take the case file and present it before the jurisdictional court. As per the judgment of Hon'ble Supreme Court of India in the case of "Dashrath Rupsingh Rathod V/s. State of Maharastra reported in AIR 2014 SC 3519," after transfer, the complaint is to be presented before the jurisdictional court within a month. The complainant presented the complaint 4 months after passing of an order for transfer. Therefore there is delay of 4 months in presenting the complaint before the jurisdictional magistrate. The delay was not explained. Delay condonation application was not filed. Hence the accused is to be discharged or the complaint is to be dismissed U/Sec.203 of Cr.P.C.
10. A perusal of record would show that, having regard to the amendment of N.I.Act in the year 2015 regarding jurisdiction of a Court for presentation of complaint, on 6 Crl.R.P.25037/2017 03.09.2016, the 19th A.C.M.M has passed an order for the transfer of C.C.No.8851/2015 to 14th A.C.M.M. Sec.142A which was inserted in the N.I.Act under the amendment in 2015 reads thus:
"142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Act, 2015, shall be transferred to the court having jurisdiction under sub-section (2) of section 142 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 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), 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 presented for payment within the territorial jurisdiction of that court.
(3) If, on the date of
commencement of the Negotiable
7
Crl.R.P.25037/2017
Instruments (Amendment) Act, 2015, more than one prosecution filed by the same person 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 before which the first case was filed as if that sub-section had been in force at all material times."
(Emphasis Supplied)
11. The amendment to N.I.Act made in the year 2015 came into force on 15.06.2015. The said amendment was brought to address the difficulties faced by payee or the holder of the cheque regarding filing of complaint for the offence punishable U/Sec.138 of N.I.Act. Having regard to the non obstruct clause in Sec.142A, after the said amendment, the judgment of Hon'ble Supreme Court of India in the case of DASHRATH RUPSINGH RATHOD cited supra, cannot be pressed into service to decide the territorial jurisdiction or the time limit fixed for transfer of Criminal cases pertaining to the offence punishable U/Sec.138 of N.I.Act.
12. As per Sec.142A of N.I.Act, the criminal cases pertaining to the offence punishable U/Sec.138 of N.I.Act 8 Crl.R.P.25037/2017 pending in the courts are to be transferred to the concerned jurisdictional court. Thus the transfer of criminal cases pertaining to the offence punishable U/Sec.138 of N.I.Act pending as on 15.06.2015 is a statutory transfer. As per Sec.142A(3) of N.I.Act, either parties to the case, can inform the court that, as per the amendment, the case is to be transferred. On such information, It is the duty of the court to transfer the case to the concerned jurisdictional court. A time consumed for sending the file from transferor court to the transferee court would be considered as transit period. If any delay is caused, the complainant cannot be attributed for the delay. A perusal of order dated:03.09.2016 passed by the Learned 19th A.C.M.M for the transfer of C.C.No.8851/2015, it is clear that, time is not fixed either for presentation of the complaint or for appearance of the parties. In the said order, the complainant was directed to present the complaint before the 14th A.C.M.M. It appears that, the said court is not having jurisdiction. Therefore complainant after ascertaining the court having jurisdiction as per the amendment to N.I.Act, has presented the complaint before the learned 58 th A.C.M.M. As I have already stated above, after amendment to 9 Crl.R.P.25037/2017 N.I.Act in the year 2015, it is the duty of the Court to transfer the pending cases to the jurisdictional court. In other words, it is not the duty of the complainant to take the complaint and to present it before the jurisdictional court. In the instant case, in view of direction given by the court, the complainant provided his assistance in transferring his case to the jurisdictional Court. When such is the case, the contention of the accused that, after the order for transfer was passed, complaint is to be represented by the complainant before the transferee court within 30 days, is not sustainable. In view of the above, I hold that, the trial court is justified in dismissing the application filed by accused for discharge and/or for dismissal of complaint on the count that, there is delay in presentation of the complaint before the transferee court and the said delay is not condoned. In addition to the above, the trial court has rightly opined that, after the summons was issued to the accused U/Sec.204 of Cr.P.C., the question of dismissing the complaint U/Sec.203 of Cr.P.C would not arise. The trial court has also justified in holding that, the Sec.258 of Cr.P.C. regarding dropping of further proceedings will not apply to the case instituted on complaint U/Sec.200 of 10 Crl.R.P.25037/2017 Cr.P.C. in view of the above, I hold that, the impugned order dated:10.04.2017 passed by the learned 58th A.C.M.M does not suffer from any error, illegality, perversity warranting interference of this court. Therefore the instant petition is deserve for dismissal. Accordingly, I answer the point for consideration the Negative and pass the following:
ORDER The petition is dismissed.
The order dated:10.04.2017 passed
by the learned 58th Addl. Chief
Metropolitan Magistrate, dismissing the
application filed by accused U/Sec.203 R/w Sec.227 & 258 of Cr.P.C is confirmed.
Return the LCR to the trial court. No order as to costs.
***** [Dictated to the Stenographer, after computerization, corrected, signed and then pronounced by me in the open Court on this the 30th day of January 2020].
[MOHAMMED MUJEER ULLA C.G] C/C 1V Addl. City Civil & Sessions Judge, Mayo hall, Bengaluru.