Karnataka High Court
Sri Vasudev N vs Mrs B Radha Kumari on 18 July, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.4676 OF 2016
BETWEEN:
SRI VASUDEV N
SON OF LATE NANJUNDAPPA
AGED ABOUT 60 YEARS,
RESIDING AT: NO.525,
TANK BAND ROAD,
DODABALLAPUR TOWN
DODABALLAPURA TALUK-561203
BENGALURU RURAL DISTRICT.
... PETITIONER
(BY SRI: TOMY SEBASTIAN, SENIOR ADVOCATE FOR
SRI: MELANIE SEBASTIAN, ADVOCATE)
AND
MRS B RADHA KUMARI
D/O SRI.B.RANGA SWAMY
R/A NO.81, HIMAGIRI MEADOWS
BANNERGHATTA ROAD
GOTTEGERI
BENGALURU-560 083.
... RESPONDENT
(BY SRI: NITIN R AND SIDDESHWARA, ADVOCATES)
2
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ORDER DATED 18.01.2016 PASSED BY THE XXII A.C.M.M.,
BENGALURU IN C.C.NO.3869/2016, REGISTERING THE CASE
FOR THE OFFENCE U/S 138 OF N.I.ACT AND ISSUING PROCESS
FOR THE APPEARANCE OF THE ACCUSED AND FURTHER
CONSEQUENTIAL PROCEEDINGS IN C.C.NO.3869/2016 ON THE
FILE OF THE XXII A.C.M.M., BENGALURU.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner has sought to quash the entire proceedings pending on the file of the XXII Addl. CMM, Bengaluru in C.C.NO.3869/2016 registered for the offence punishable under section 138 of N.I. Act.
Heard the learned counsel for the petitioner and the learned counsel for the respondent.
2. The aforesaid proceedings were initiated based on the private complaint lodged by the respondent herein alleging dishonour of two cheques amounting to Rs.20.00 lakhs. Initially, the complaint was presented before the XIII Addl. CMM, Bengaluru and was numbered as PCR No.284/2014 and after taking cognizance, it was numbered as C.C.No.19407/2014. However, during the pendency of the said proceedings, in view 3 of the orders passed by the Hon'ble Supreme Court of India in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra and Another reported in (2014) 9 SCC 129, the petition was transferred to JMFC, Dodballapur, where the same was numbered as PCR No.284/2014. Subsequently, the Legislature introduced section 142A, whereby all the pending proceedings were deemed to have been transferred under the Act. In view of the said amendment, the complainant/respondent filed a memo before the JMFC, Doddaballapur which reads as under:-
MEMO "The undersigned counsel for the complainant respectfully submits that as per the New Amendment of Negotiable Instruments Act 1881, the amendment passed on 6.5.2015, the Bill was passed in the Loka Sabha on Jurisdiction Point that Under Section 142(1) (2) (a) (b) of N.I.Act 1881 says that as follows:-
"(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 4 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.
That for the above said parlance this Hon'ble Court has no jurisdiction to try this case therefore kindly transfer the above said case to the jurisdictional court to adjudicate the matter, in the interest of justice and equity." Considering the said memo, the learned Magistrate passed the following order:-
11.12.2015 "Complainant present Counsel prays for returning the complaint.
Hence in view of submission and memo, hereby return the complaint to the complainant."
3. Accordingly, the respondent took return of the complaint and presented the same before the XXII Addl. CMM 5 Court, Bengaluru and the same was numbered as PCR No.356/2016.
4. The contention of the petitioner is that the presentation of the complaint amounts to filing of a fresh complaint which is in violation of the limitation prescribed under the provisions of Section 138 of N.I. Act. Specific contention in this regard finds place in para 6 of the petition which reads as follows:-
"Since Section 142A(1) of the N.I.Act provides for only transfer of the case from the Court where the case was pending to the Court having jurisdiction under Section 142(2) (a) of the N.I.Act, the Complainant/Respondent does not get the benefit of the exemption of the period of pendency of the case at Dodaballapur, by virtue of the Complainant/Respondent taking return of the complaint before the Court at Dodaballapur and presenting the said Complaint before the Court at Bangalore, which is not in conformity with the mandate of Section 142A(1) of the N.I. Act and therefore the proceedings before the Court below is liable to be quashed."
5. The learned counsel for the petitioner has reiterated the above submissions which are strongly refuted by the learned counsel for the respondent, who has placed reliance on Section 6 142A (1) and (2) of N.I. Act and would submit that by virtue of the above mandate, there is a deemed transfer of the pending proceedings and therefore, orders of the learned Magistrate was not necessary and hence, there is no illegality or irregularity whatsoever in presenting the said complaint.
7. Having considered the above submissions, I am of the view that the contentions urged by the petitioner are totally misconceived. Section 142(A) of the Act which was inserted by way of amendment in the year 2015 reads as under:-
"142A.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 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, 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 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 7 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."
8. In view of the above provisions, no separate order was necessary for transfer of the pending proceedings. By operation of law itself, pending proceedings are deemed to have been transferred. In the said circumstances, if for any reason, the order passed by learned Magistrate is found not in accordance with the provision of Section 142A(1), the complainant cannot be penalized for the fault of the Court. In view of the specific provision of Section 142A (1), the Court was required to transfer the petition without returning the same to the parties. Nonetheless, the trial court having directed the complainant to take return of the complaint and the complainant having taken return of the complaint and resubmitted the same before the competent Court, there is no violation of either Section 142 or Section 138 of N.I. Act. The time prescribed in Section 138 of 8 N.I. Act for presentation of the complaint does not apply to the time taken to resubmit the papers before the competent Court. In that view of the matter, I do not find any merit in the petition, consequently, petition is dismissed.
Since the proceedings are pending since the year 2013, the trial court is directed to expedite the proceedings.
Sd/-
JUDGE *mn/-