Kerala High Court
Augustine Babu. P. M vs Sh.Mohd.Samiur Rahman Ansari on 10 February, 2016
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939
OP(Crl.).No. 454 of 2016 (Q)
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(C.C. NO. 911/2016 OF METROPOLITAN MAGISTRATE (N.I.ACT)-11,
COURT NO. 609, SOUTH EAST DISTRICT,
SAKETH COURT, NEW DELHI)
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PETITIONER/1ST ACCUSED:
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AUGUSTINE BABU. P. M.,
PUTHUSSERY HOUSE, SOUTH CHITTOOR,
ERNAKULAM, KOCHMI-27.
BY ADV. SRI.MATHEW SEBASTIAN
RESPONDENT(S):
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1. SH.MOHD.SAMIUR RAHMAN ANSARI.,
S/O. SH. MOHD. SAIFUR RAHMAN ANSARI,
R/O D-574/5., SANGAM VIHAR,
DELHI- 110 080.
2. PERFECT DRILLING GENERAL CONT.EST,
P.B.NO. 4055, ALKHOBAR- 31952,
KINGDOM OF SAUDI ARABIA.
3. NATIONAL CAPITAL TERRITORY OF DELHI,
REPRESENTED BY PRINCIPAL SECRETARY, NEW DELHI- 110 001.
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 08-08-2017, ALONG WITH ZOP(CRL) NO. 754/2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sdr/-
OP(Crl.).No. 454 of 2016 (Q)
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APPENDIX
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PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE COMPLAINT IN C.C.911/2016 BEFORE THE
METROPOLITAN MAGISTRATE (N.I.ACT)-II,COURT NO.609,SOUTH
EAST DISTRICT,SAKETH COURT,NEW DELHI.
EXHIBIT P2 TRUE COPY OF THE SUMMONS ISSUED FROM THE METROPOLITAN
MAGISTRATE(N.I.ACT)-II,COURT NO.609,SOUTH EAST
DISTRICT,SAKETH COURT,
NEW DELHI IN COMPLAINT IN C.C.911/2016
EXHIBIT P3 TRUE COPY OF THE REGISTRATION PARTICULARS OF M/S."PERFECT
DRILLING GENERAL CONT.EST,P.B.NO.4055,ALKHOBAR -31952,
KINGDOM OF SAUDI ARABIA".
EXHIBIT P3(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P3.
EXHIBIT P4 TRUE COPY OF THE REPLY NOTICE DATED 10.2.2016.
RESPONDENT(S)' EXHIBITS NIL
---------------------------------------
/TRUE COPY/
A TO JUDGE
sdr/-
ALEXANDER THOMAS, J.
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O.P.(Crl.) No.454 of 2016
&
Unnumbered O.P.(Crl.) of 2017
(Z O.P.(Crl.) 754 of 2017)
----------------------------------------------------
Dated this the 8th day of August, 2017
JUDGMENT
The prayer in both these Original Petitions purportedly filed under Article 226(2) of the Constitution of India is to quash the complaints impugned in these petitions. The petitioner in both the cases is the same person. The petitioner in O.P.(Crl.) No.454 of 2016 is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.911 of 2016 on the file of the Chief Metropolitan Magistrate, District South East, Saket Court complex, New Delhi, instituted on the basis of a complaint filed by the first respondent in that petition. Whereas in the unnumbered O.P.(Crl.), the petitioner is accused for the same offence in C.C.No.754/1 of 2016 on the file of the Chief Metropolitan Magistrate Court, Dist. New Delhi, Patiala House Courts, New Delhi, instituted on the basis of a complaint filed by the first respondent in that petition.
2. In both the complaints, the petitioner herein is accused No.1 and it is described in the cause title of the complaints that he is the O.P.(Crl.) No.454/16 & ::2::
Z O.P.(Crl.) 754/17 authorised signatory, owner and proprietor of M/s.Perfect Drilling General Construction Establishment (accused No.2) through its Manager, owner or Proprietor. According to the complainant (in O.P. (Crl.) 454 of 2016), he was the employee of accused No.2 concern, which is based at Saudi Arabia and that the petitioner herein, who is accused No.1, is the owner and proprietor of accused No.2 concern and that the petitioner is also the authorised signatory for signing the cheques issued for and on behalf of the second accused. Further it is the case of the complainant that his service was terminated and accused No.2 had settled the salaries and towards settlement of his salary arrears, accused No.1, who is the proprietor and authorised signatory of accused No.2, had issued four postdated cheques dated 20.10.2015 dated 30.11.2015 dated 31.12.2015 and dated 2.2.2016 for Rs.1,40,000/- each, all drawn from the account maintained by accused No.1 (petitioner), at Federal Bank, Ernakulam Branch. The abovesaid cheques were initially presented by the complainant through Canara Bank at Patna Branch, which resulted in dishonour and later, it was again re-presented before the Canara Bank, East of Kailash, New Delhi, and were dishonoured as per the dishonoured memo dated 4.1.2016.
Similar averments are also made in the unnumbered O.P.(Crl.), which is concerning C.C.No.754/1 of 2016. In that case also, the case of the O.P.(Crl.) No.454/16 & ::3::
Z O.P.(Crl.) 754/17 complainant is that he was an employee of the abovesaid second accused concern and that after the termination of his service, his due salaries were sought to be cleared by accused No.1 (petitioner) issuing two cheques dated 30.10.2015 and 10.12.2015 each for Rs.1,40,000/- drawn from the account of the petitioner (accused No.1) at Federal Bank, Ernakulam Branch, Kerala. The said cheques were presented for collection by the complainant at his Bank, viz., Union Bank of India, Naraina Branch, Delhi, and that it resulted in dishonour. Both the complainants would aver that after satisfying the requisite formalities, they have been initiated the present complaints before the Chief Metropolitan Magistrate Court, New Delhi, etc.
3. According to the petitioner, he is not the proprietor or owner of accused No.2 concern and he was having works with the second accused Company. While he was set at Saudi Arabia, he had lost one cheque book and it is the cheque leaves from that lost cheque book that has been misused and presented in the present two complaints. The contention of the petitioner is that even going by the case projected by the complainants, the cheques were drawn and executed at Saudi Arabia and so the main transaction in respect of the alleged offence under Section 138 of the Negotiable Instruments Act has taken place in Saudi Arabia and that the court in New Delhi does not have jurisdiction O.P.(Crl.) No.454/16 & ::4::
Z O.P.(Crl.) 754/17 to try the offence. Further the petitioner would also argue that going by the judgment of the Apex Court in K.Bhaskaran v. Sankaran Vaidhyan Balan reported in 1999 (7) SCC 510 = 1999 (3) KLT 440 (SC), the offence under Section 138 can be completed only on completion of 5 different acts, viz.,(1) drawing of the cheque (2) presentation of the cheque to the Bank (3) returning the cheque unpaid by the drawee Bank (4) giving statutory demand notice in writing to the drawer of the cheque demanding payment of the cheque amount and (5) failure of the drawer to make payment within 15 days of receipt of the notice. On the strength of the abovesaid judgment of the Apex Court in Bhaskaran's case (supra), the petitioner would argue that part of the cause of action alleged in these criminal complaints has arisen in Kerala inasmuch as the dishonour of the cheque has taken place at the drawee Bank, Federal Bank, Ernakulam Branch, which is situated within the State of Kerala and that therefore, this Court has jurisdiction under Article 226(2) of the Constitution of India inasmuch as part of the cause of action has arisen within the State of Kerala. The petitioner would also place reliance of the judgment of the Apex Court in Nawal Kishore Sharma v.
Union of India and others reported in (2014) 9 SCC 329, wherein it is held that the jurisdiction of a High Court under Article 226(2) of the Constitution of India can be invoked against any authority or person O.P.(Crl.) No.454/16 & ::5::
Z O.P.(Crl.) 754/17 residing outside the territorial jurisdiction of the High Court concerned, if the whole or part of the cause of action has arisen within the territorial jurisdiction of the High Court where the Writ Petition is moved for appropriate reliefs.
4. This Court in O.P.(Crl.) No.454 of 2016 had passed order dated 8.9.2016 admitting the Original Petition and ordering grant of interim stay of all further proceedings in C.C.No.911 of 2016 on the file of the Metropolitan Magistrate Court concerned. Though notice was ordered to be issued by this Court on 8.9.2016, even till date no steps whatsoever has been taken by the petitioner to take out notice to any of the three respondents including R1 who is the most affected party being the complainant in the impugned complaint. The Registry had noted defect, while moving the above-referred latter Original Petition, viz. the unnumbered O.P.(Crl.) on 1.8.2017 the Registry had noted defect and had posted this case before this Court to decide on the maintainability of the petition. The petitioner had placed reliance on the abovesaid interim order dated 8.9.2016 passed by this Court in O.P.(Crl.) No.454 of 2016 and therefore, both the petitions have been taken up for consideration for deciding on the point of maintainability.
5. The main issue to be decided in this petition is as to whether Writ Petition under Article 226 is maintainable as against a O.P.(Crl.) No.454/16 & ::6::
Z O.P.(Crl.) 754/17 criminal court which is situated outside the territorial jurisdiction of this Court. A Full Bench of this Court had occasion to consider that pertinent issue in Meenakshi Sathish v. Southern Petrochemicals Industries reported in 2007(1) KLT 890 FB and it was held in paragraphs 9 and 10 thereof that in view of clause (2) of Article 226, if part of the cause of action had arisen in the State, writ could be issued against an authority, though the seat of that authority is outside the territorial jurisdiction of this Court. But, the cause of action which must arise in Kerala for issuing the writs of certiorari or prohibition, must relate to the commissions or omissions of an inferior court or Tribunal amenable to the writ jurisdiction of that court and not that of a private party. This Court cannot judicially review the actions of the first respondent therein (the complainant concerned) and that if a complainant files any complaint before any court it may do it rightly or wrongly and the complainant in a complaint alleging offence under Section 138 of the Negotiable Instruments Act, being a private party is not amenable to the writ jurisdiction of this Court under Article 226 and therefore, this Court cannot judicially review the actions of such a complainant by invoking the powers conferred under Article 226 of the Constitution of India. The other point that was considered by the Full Bench was as to whether the court could judicially review the action of the Magistrate in taking O.P.(Crl.) No.454/16 & ::7::
Z O.P.(Crl.) 754/17 cognizance of the offence under Section 190(1)(a) read with Section 200 of the Cr.P.C. and in issuing process under Section 204 Cr.P.C. It was found on facts that the entire cause of action as far as the action of the learned Magistrate was found to have arisen in Coimbatore, which is outside the territorial jurisdiction of this Court and it was held that even if the complainant has wrongly filed a complaint before the Coimbatore court, the action of taking cognizance and issuance of the process took place outside the jurisdiction of this Court and therefore, the reliefs sought for in the Writ Petition cannot be granted by this Court and that even if the cause of action for the complaint under Section 138 of the Negotiable Instruments Act arose in Kerala, this Court cannot interfere with the proceedings for a criminal court which is situated outside the territorial jurisdiction of this Court. It will be profitable to refer to paragraphs 8, 9 and 10 of the abovesaid Full Bench decision in Meenakshi Sathish v. Southern Petrochemical Industries reported in 2007(1) KLT 890 (F.B.) "8. In the light of the above mentioned two decisions of the Apex Court in Navinchandra and Mosaraf Hossain Khan, which Division Bench decision of this Court, that is whether the decision in Krishnakumar Menon's case or the decision in U.B.C.'s case, lays down the correct legal position, is the point to be answered in this case. There cannot be any dispute that the complaint before the Coimbatore court and taking cognizance of the same by the said court cannot be challenged under S.482 of the Cr.P.C or under Art.227 of the Constitution of India, before this Court. The only contention raised is that a Writ Petition under Article 226 will lie, in view of clause (2) thereof, as part of O.P.(Crl.) No.454/16 & ::8::
Z O.P.(Crl.) 754/17 the cause of action in the transaction regarding issuance of the cheque, its dishonour etc., arose in Kerala.
9. Art. 226(2) reads as follows:
"226. Power of High Courts to issue certain writs:- (1) ................................................................................ (2) The power conferred by clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
The said clause was introduced as clause (1A) by the 15th Amendment Act, 1963, in view of the decisions of the Apex Court in Election Commission, India v. Saka Venkata Subba Rao ((1953) S.C.R. 1144), Rashid v. I.T. Investigation Commission ((1954) S.C.R. 738), Khajoor Singh v. Union of India (AIR 1961 SC 532) and Collector of Customs v. E.I. Commercial Co. (AIR 1963 SC 1124). The result of the above decisions was that Writ Petitions under Art.226 against the Union of India were maintainable only in the High Court of Punjab, as at the relevant time the territory of national capital was under the jurisdiction of the said High Court. The High Courts of Madras and Assam took a different view that if part of the cause of action arose within the respective States, writs could be issued to the Union of India by them. To get over the above decisions of the Apex Court and make the law in tune with the decisions of the above High Courts, the amendment was introduced. Art.226 was drastically amended by Constitution 42nd Amendment Act, 1976. The original position was substantially restored later, by the Constitution 44th Amendment Act, 1978. In view of clause (2) of Art.226, if part of the cause of action arose in the State, writ could be issued against an authority, though the seat of it is outside the territorial jurisdiction of this Court.
10. But, the cause of action which must arise in Kerala for issuing the writs of certiorari or prohibition, must relate to the commissions or omissions of an inferior court or Tribunal amenable to the writ jurisdiction of this Court and not that of a private party. This Court cannot judicially review the actions of the 1st respondent. It may file any complaint before any court. It may do it rightly or wrongly. The 1st respondent being a private party not amenable to the writ jurisdiction of this Court, we O.P.(Crl.) No.454/16 & ::9::
Z O.P.(Crl.) 754/17 cannot judicially review its actions. But, the point to be decided is whether we can judicially review the action of the Magistrate in taking cognizance under S.190(1)(a) read with S.200 of the Cr.P.C. of the offence alleged against the petitioner and issuing process under S.204. The entire cause of action, as far as the action of the learned Magistrate is concerned, arose in Coimbatore, outside the jurisdiction of this Court. So, even if the complainant has wrongly filed a complaint before the Coimbatore court, the action of taking cognizance and issuance of the process took place outside the jurisdiction of this Court. Therefore, we have no doubt in our mind that the reliefs sought in this Writ Petition cannot be granted by this Court. We are of the view that the decision of the Division Bench in U.B.C. v. Govarthanam (2005 (2) KLT 461) lays down the correct legal position. The observation in Krishnakumar Menon's case concerning the power of this Court under Art.226 of the Constitution of India is an obiter. Further, the decision of the Apex Court in Navinchandra's case (supra) cannot have any application to a case arising on a private complaint under S.138 of the Negotiable Instruments Act. In Navinchandra's case, the Apex Court considered the question regarding quashing of an F.I.R. and the criminal investigation conducted by the police in Shillong about the offences committed or the cause of action which arose in Maharashtra State. So, as the police from Shillong has to do investigation in Maharashtra, the Apex Court observed that the Bombay High Court has jurisdiction in the matter. The said observation can have no application to a private complaint, based on which a Magistrate's court, which is outside the jurisdiction of the Kerala High Court takes cognizance and proceeds with the trial. So, the observation in Krishnakumar Menon's case, concerning the jurisdiction of the High Court under Article 226 of the Constitution of India, does not lay down the correct legal position, as far as private complaints are concerned. Even if the cause of action for the complaint under S.138 of the Negotiable Instruments Act arose in Kerala, the Kerala High Court cannot interfere with the proceedings before a criminal court, outside the jurisdiction of this Court."
6. There is yet another important aspect of the matter which has not been dealt with by the Full Bench in Meenakshi Sathish's case (supra). Earlier a 9 Judge Bench judgment of the Apex Court in a celebrated case in Naresh Shridhar Mirajkar v. State of Maharashtra O.P.(Crl.) No.454/16 & ::10::
Z O.P.(Crl.) 754/17 reported in AIR 1967 SC 1 has categorically held that writ of certiorari does not lie to quash the judgments of the inferior courts of civil jurisdiction, etc. (paragraph 62 thereof). Later, a two Judge Bench decision of the Apex Court in Surya Dev Rai v. Ram Chander Rai reported in 2003(6) SCC 675 has held that a Writ Petition under Article 226 of the Constitution of India is maintainable against the order of the civil court, etc. In the case in Radhey Shyam and another v. Chhabi Nath and others reported in (2015) 5 SCC 243, it was argued that the dictum laid down by the two Judge Bench decision in Surya Dev Rai's case is not good law in view of the contrary view taken earlier by the nine Judge Bench judgment in Naresh Shridhar Mirajkar's case reported in AIR 1967 SC 61. Accordingly, the matter was placed before a three Judge Bench of the Supreme Court, for consideration of issues in that regard. The three Judge Bench judgment of the Apex Court in Radhey Shyam and another v. Chhabi Nath and others reported in (2015) 5 SCC 243, has dealt with the entire gamut of the issues in that regard as to whether a writ under Article 226 of the Constitution of India would lie as against a civil court/judicial court, etc. Their Lordships of the Supreme Court held that the scope of jurisdiction under Article 227 of the Constitution of India is distinct from that under Article 226 and that all courts in the jurisdiction of a High Court are subordinate to it and O.P.(Crl.) No.454/16 & ::11::
Z O.P.(Crl.) 754/17 subject to its control and supervision under Article 227 and control of the working of subordinate courts in dealing with that judicial orders is exercised by way of statutory, appellate or revisional powers or powers of superintendence under Article 227 and not by way writ jurisdiction under Article 226. That by appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is Constitutional and despite curtailment of revisional jurisdiction under Section 115 of the Code of Civil Procedure by Act 46 of 1999, the jurisdiction of the High Court under Article 227 of the Constitution remains unaffected and does not result in expanding High Court's powers of superintendence, etc. Further, it was held that judicial orders of a civil court are not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India and that challenge to judicial orders would lie by way of statutory appeal or revision or under Article 227 but not by way of a writ under Article 226 or 32 of the Constitution of India. The scope of writ of certiorari envisaged in Article 226 of the Constitution of India has also been considered therein and the scope of the expressions "inferior court" or "judicial acts" in respect of which certiorari may be issued, has also been interpreted and it was held that those expressions are not meant to refer to judicial orders of civil courts and orders of civil court stand on a different footing from the O.P.(Crl.) No.454/16 & ::12::
Z O.P.(Crl.) 754/17 orders of authorities or Tribunals or courts other than judicial/civil courts and that there are no precedents in India for the High Courts to issue writs to the Subordinate Courts and thus judicial orders of civil courts are not amenable to the writ of certiorari under Article 226 of the Constitution of India. In that case, the interim order passed by the civil court in a pending suit was challenged in a petition under Article 226 of the Constitution of India which was filed before the Allahabad High Court and the High Court had vacated the said interim order granted in favour of the appellant/plaintiff and the appellant had moved the Supreme Court by way of special leave petition contending that Writ Petition under Article 226 of the Constitution will not lie against the order of the civil court and that the impugned order could not have been passed by the High Court. The Apex Court has laid down that the technicalities associated with prerogative writs in England have no role to play under our constitutional scheme of things and that there is no parallel system of Kings Court in India and have all other courts having limited jurisdiction subject to supervision of the High court and that such courts are set up under the Constitution and the laws and all courts under the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227 of the Constitution. Control of the working of the subordinate courts in dealing with the judicial orders is O.P.(Crl.) No.454/16 & ::13::
Z O.P.(Crl.) 754/17 exercised by way of appellate or revisional powers or powers of superintendence under Article 227 and that while appellate or revisional is regulated by statutes, the power of superintendence under Article 227 is constitutional and despite curtailment of revisional jurisdiction under Section 115 C.P.C. by Act 46 of 1999, the jurisdiction of the High Court under Article 227 remains unaffected and has not resulted in expanding the High Courts' power of superintendence. It was also held therein that the scope of Article 227 is quite different and distinct from that of Article 226 and that challenge in judicial orders would lie by way of statutory appeal or revision or under Article 227 and not by way of a writ under Article 226 and 32 of the Constitution of India. (See paragraphs 18 and 27 of the SCC report). It was also held by the Apex Court that writ jurisdiction is constitutionally conferred on all High Courts and broad principles of writ jurisdiction followed in England are applicable to India.
In Halsbury's Laws of England, 4th Edition (Reissue) Volume 1 (1) paragraph 109, it has been set out that "certiorari lies to bring decisions of any inferior court, Tribunal, public authority or any other body of persons before the High Court for review so that the court may determine whether they should be quashed, or to quash such decisions". It was held by the Apex Court in Radhey Shyam's case (supra) that the expression "inferior court" is not referable to the judicial O.P.(Crl.) No.454/16 & ::14::
Z O.P.(Crl.) 754/17 courts and a writ of certiorari lies against patently erroneous or without jurisdictional orders of Tribunals or authorities or courts other than judicial courts. In T.C.Basappa v. T.Nagappa reported in AIR 1954 SC 440, it was observed by the Apex Court that certiorari was meant to supervise "judicial acts", which included quasi-judicial functions of administrative bodies. It was explained by the Apex Court in Radhey Shyam's case (supra) that the expression "judicial acts" is not meant to refer to judicial orders of the civil courts and orders of the civil courts stand on a different footing from the orders or authorities or Tribunals or courts other than judicial/civil courts. It was also held that there are no precedents in India for the High Courts to issue writs to the subordinate courts and thus judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 of the Constitution of India and further writ of mandamus does not lie against a private person not discharging any public duty, etc. Therefore, now the law in the matter is very clear that writ under Article 226 of the Constitution of India will not lie as against judicial court including a criminal court. Though the facts of Radhey Shyam's case (supra) dealt with the amenability of writ jurisdiction vis-a- vis civil court, the conclusion is irresistible that the ratio-decidendi of the said decision would lead to the position that no writ under Article 226 of the Constitution of India would lie as against any judicial court including O.P.(Crl.) No.454/16 & ::15::
Z O.P.(Crl.) 754/17 civil courts and criminal courts. The present Original Petitions have been filed by purportedly invoking solely the provisions contained in Article 226(2) of the Constitution of India on the ground that part of the cause of action arisen in the State of Kerala and that therefore, petition under Article 226 is maintainable, etc. The petitioner has placed reliance on the judgments of the Apex Court in Nawal Kishore Sharma v. Union of India and others reported in 2014 (9) SCC 329, Navinchandra N.Majithia v. State of Maharashtra and others reported in (2000) 7 SCC 640, Rajendran Chingaravelu v. R.K.Mishra, Additional Commissioner of Incometax and others reported in 2010(1) SCC 457, etc. The said decisions take the view that if part of the cause of action has arisen in a state, then the High Court of that state will have territorial jurisidiction under Article 226(2). It is now well settled law that writs under Article 226 of the Constitution of India would not lie as against judicial courts including civil courts and criminal courts. So, the prayers made by these petitioners for quashing the impugned complaint by invoking the enabling powers under Article 226 of the Constitution of India is absolutely not maintainable.
7. Faced with the situation, Sri.Mathew Sebastian, learned counsel appearing for the petitioner would argue that assuming for argument sake that no writ under Article 226 would lie, then certainly O.P.(Crl.) No.454/16 & ::16::
Z O.P.(Crl.) 754/17 directions can be passed by this Court under Article 227 of the Constitution of India, in view of the legal principles laid down by the Apex Court in Radhesyam's case (supra).
8. Article 227 of the Constitution of India reads as follows :
"227. Power of superintendence over all courts by the High Court:- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) Call for returns from such courts;
(b) make and issue general rules and prescribe forms
for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescrbed or tables settled under clause (2) or clause (3) shall not be inconsitent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or uunder any law relating to the Armed Forces."
It is well settled law that a High Court shall have judicial superintendence over all courts and Tribunals throughout the territories in relation to which it exercises its jurisdiction. In other words, the subordinate court/Tribunal concerned which is sought to be supervised under Article 227 of the Constitution of India should be one which is situated and functioning within the territorial jurisdiction of the High Court concerned. In the instant case, it is not in dispute that the O.P.(Crl.) No.454/16 & ::17::
Z O.P.(Crl.) 754/17 complaint has been entertained by the Metropolitan Magistrate Court concerned based at New Delhi which is indisputably not within the territorial limits of this Court. Moreover, in paragraph 8 of the judgment of the Full Bench in Meenakshi Sathish's case (supra), it has been held that there cannot be any dispute that the complaint before the criminal court which is situated outside the State of Kerala taking of cognizance of the offence cannot be challenged before this Court under Article 227 of the Constitution of India, etc. Therefore, the alternate plea made by the petitioner that this Court should invoke jurisdiction under Article 227 of the Constitution of India is not maintainable.
9. Further Sri.Mathew Sebastian, learned counsel appearing for the petitioner, would contend that even going by the case projected by the complainants, the instant cheques have been executed and issued in Saudi Arabia which is a foreign country and that the major component of the transaction and the cause of action has occurred in that foreign country and that the proposed trial before the Metropolitan Magistrate's Court at New Delhi is initiated inasmuch as the prior sanction of the Central Government has not been obtained as mandated in Section 188 of the Cr.P.C.
10. Section 188 of the Cr.P.C. reads as follows :
"188. Offence committed outside India :- When an offence is committed outside India -
O.P.(Crl.) No.454/16 & ::18:: Z O.P.(Crl.) 754/17
(a) by a citizen of India, whether on the high seas or elsewhere; or
(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found :
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government."
11. A Division Bench of this Court in the judgment in Muhammed v. State of Kerala reported in 1994 (1) KLT 464 has construed the provisions in Section 4 of the IPC and Section 188 of the Cr.P.C. and it has been held that where an offence is committed outside India by an Indian citizen, the police in the State concerned within the Union of India can conduct investigation to offences committed abroad and no sanction of the Central Government is necessary and that the words "deal with" in appearing in Section 188 must be dealt to include investigation also apart from enquiry on trial and the words "dealt with"
in the main part cannot be restricted to enquiry and trial used in the proviso, etc. A Full Bench of this Court in the case in Samaruddin v. Assistant Director of Enforcement reported in 1999 (2) KLT 794 F.B. has held that clause (a) of Section 188 makes it clear that the Section applies if the offence has been committed by a citizen outside India whether on the high seas or elsewhere and clause (b) makes it clear that if the offence is committed by a person who is not an Indian citizen O.P.(Crl.) No.454/16 & ::19::
Z O.P.(Crl.) 754/17 on any ship or aircraft registered in India, then also the section applies and in the proviso to the Section, sanction of the Central Government is made necessary for inquiry or trial of such offences and that Section 188 of the Cr.P.C. only deals with the procedure and nothing else and that in the instant case, the act alleged is said to have been committed outside India and therefore, it amounts to an offence punishable under the IPC and that the proviso to the Section is prohibitive and sanction of the Central Government is a preliminary requisite for the institution of criminal proceedings in India in respect of the offences committed outside India. Proceedings taken without such sanction are without jurisdiction and void. Since the proviso casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person, the Section has a message that for the pre-enquiry stage, no such sanction is required and the pre-inquiry stage substantially relates to the investigation of the crime and if there is any stage in which an offender can be dealt with before commencement of inquiry, it must be the investigation stage and that Section 188 of the Cr.P.C. states that the offender may be dealt with in respect of such offence as if it have been committed at any place within India and at which he may be found, etc. The Full Bench has also affirmed the legal principles laid down by the Division Bench in Muhammed v. State of Kerala reported in 1994 O.P.(Crl.) No.454/16 & ::20::
Z O.P.(Crl.) 754/17 (1) KLT 464.
12. Learned prosecutor, who is appearing for the State of Kerala, has submitted that the said provisions in Section 188 of the Cr.P.C. may not have any application in the facts of the instant case inasmuch as the offence under Section 138 of the Negotiable Instruments Act has been committed at the time and place where the dishonour of the cheque has taken place in view of the dictum to that effect laid down by a recent three Judge Bench judgment of the Apex Court rendered on 1.8.2014 in Dashrath Rupsingh Rathod v. State of Maharashtra and another reported in (2014) 9 SCC 129 :
"18. Section 138 of the N.I.Act is structured in two parts-the primary and the provisory. It must be kept in mind that the legislature does not ordain with one hand and immediately negate it with the other. The proviso often carves out a minor detraction or diminution of the main provision of which it is an appendix or addendum or auxiliary. Black's Law Dictionary states in the context of a proviso that it is "[a] limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, or the other be exercised, unless in the case provided.
A clause or part of a clause in a statute, the office of which is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extent."
It should also be kept in perspective that a proviso or a condition are synonymous. In our perception in the case in hand the contents of the proviso synonymous. In our perception in the case in hand the contents of the proviso place conditions on the operation of the main provision, while it does (sic not) form a constituent of the crime itself, it modulates or regulates the crime in circumstances where, unless its provisions are complied with, the already committed crime O.P.(Crl.) No.454/16 & ::21::
Z O.P.(Crl.) 754/17 remains impervious to prosecution. The proviso to Section 138 of the N.I.Act features three factors which are additionally required for prosecution to be successful. In this aspect Section 142 correctly employs the term "cause of action" as compliance with the three factors contained in the proviso are essential for the cognizance of the offence, even though they are not part of the action constituting the crime. To this extent we respectfully concur with Bhaskaran in that concatenation of all these concomitants, constituents or ingredients of Section 138 of the N.I.Act, is essential for the successful initiation or launch of the prosecution. We, however, are of the view that so far as the offence itself the proviso has no role to pay.
Accordingly, a reading of Section 138 of the N.I.Act in conjunction with Section 177 Cr.P.C leaves no manner of doubt that the return of the cheque by the drawee Bank alone constitutes the commission of the offence and indicates the place where the offence is committed.
19. In this analysis we hold that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee Bank is located. The law should not be warped for commercial exigencies. As it is Section 138 of the N.I.Act has introduced a deeming fiction of culpability, even though, Section 420 is still available in case the payee finds it advantageous or convenient to proceed under that provision. An interpretation should not be imparted to Section 138 which will render it as a device of harassment i.e., by sending notices from a place which has no causal connection with the transaction itself, and/or by presenting the cheque(s) at any of the Banks where the payee may have an account. In our discernment, it is also now manifest that traders and businessmen have become reckless and incautious in extending credit where they would heretofore have been extremely hesitant, solely because of the availability of redress by way of criminal proceedings. It is always open to the creditor to insist that the cheques in question be made payable at a place of the creditor's convenience. Today's reality is that every Magistracy is inundated with prosecutions under Section 138 of the N.I.Act, so much so that the burden is becoming unbearable and detrimental to the disposal of other equally pressing litigation. We think that courts are not required to twist the law to give relief to incautious or impetuous persons ; beyond Section 138 of the N.I.Act.
20. We feel compelled to reiterate our empathy with a payee who has been duped or deluded by a swindler into accepting a cheque as consideration for delivery of any of his property; or because of the receipt of a cheque has induced the payee to omit to do anything resulting in some damage to O.P.(Crl.) No.454/16 & ::22::
Z O.P.(Crl.) 754/17 the payee. The relief introduced by Section 138 of the NI Act is in addition to the contemplations in IPC. It is still open to such a payee recipient of a dishonoured cheque to lodge a first information report with the police or file a complaint directly before the Magistrate concerned. If the payee succeeds in establishing that the inducement for accepting a cheque which subsequently bounced had occurred where he resides or ordinarily transacts business, he will not have to suffer the travails of journeying to the place where the cheque has been dishonoured. All remedies under IPC and Cr.P.C. are available to such a payee if he chooses to pursue this course of action, rather than a complaint under Section 138 of the N.I.Act and of course, he can always file a suit for recovery wherever the cause of action arises dependent on his choosing.
21. The interpretation of Section 138 of the N.I.Act which commends itself to us is that the offence contemplated therein stands committed on the dishonour of the cheque, and accordingly JMFC at the place where this occurs is ordinarily where the complaint must be filed, entertained and tried. The cognizance of the crime by JMFC at that place however, can be taken only when the concomitants or constituents contemplated by the section concatenate with each other. We clarify that the place of the issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment by his Bank are not relevant for purposes of territorial jurisdiction of the complaints even though non-compliance therewith will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general; of the N.I.Act. The vindication of this view is duly manifested by the decisions and conclusions arrived at by the High Courts even in the few cases that we shall decide by this judgment. We clarify that the complainant is statutorily bound to comply with Section 177, etc. of Cr.P.C and therefore, the place or situs where the Section 138 complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the Bank on which it is drawn."
13. It is also pointed out that the legal position laid down by the two Judge Bench decision of the Apex Court in Bhaskaran v. Sankaran O.P.(Crl.) No.454/16 & ::23::
Z O.P.(Crl.) 754/17 Balan Vaidhyan reported in 1999 (7) SCC 510 = 1999 (3) KLT 440 (SC) has also been explained in paragraph 18 of the abovesaid 3 Judge Bench decision in Dashrath Rupsingh Rathod's case (supra) to the effect that a reading of Section 138 of the N.I.Act leaves no matter of doubt that the return of the cheque by the drawee Bank alone constitutes the commission of the offence and indicates the place where the offence is committed. In the light of the said legal position laid down by the Apex Court in Dashrath Rupsingh Rathod's case, the prosecutor would point out that the offence under Section 138 of the Negotiable Instruments Act should be treated to have been committed at the place and time where the dishonour of the cheque has taken place and that in the instant case going by the pleadings projected in the impugned complaints, the cheques in question have been dishonoured by the drawee Bank which was situated in Kerala and that therefore, the place of the commission of the offence under Section 138 of the Negotiable Instruments Act is within the territorial limits of India and not in a foreign country like Saudi Arabia and hence, it is pointed out that the requirement in Section 188 of the Cr.P.C. for getting prior sanction for enquiry of trial for the offence committed in a foreign country are not applicable to the facts of the instant case. It is further pointed out by the learned prosecutor that later legislative amendments have been brought O.P.(Crl.) No.454/16 & ::24::
Z O.P.(Crl.) 754/17 out to the Negotiable Instruments Act as per the provisions in Sections 142(2) and 142A of the N.I.Act made effective from 15.6.2015 whereby it has been clearly laid down therein that the only court which can conduct enquiry or trial in respect of a complaint involving offence under Section 138 of the Negotiable Instruments Act is the Magistrate Court having territorial jurisdiction over the collection Bank area in case the cheques have been sent by the complainant for collection through his Bank for presentation before the drawee Bank, etc. Learned prosecutor has also taken the attention of this Court to the provisions contained in Sections 142(2) and 142(A) as inserted by the amendment made effective from 15.6.2016. The prosecutor has also brought to the notice of this Court the decision of the Apex Court in Bridgestone India (P) Ltd. v.
Inderpal Singh reported in (2016) 2 SCC 75, wherein it has been held in paragraphs 13 and 14 thereof that the place where the cheque is delivered for collection i.e., the Branch of the Bank of the payee or holder in due cours, where the drawee maintains an account, would be determinative of the place of the territorial jurisdiction of this Court for trying offence under Section 138 of the Negotiable Instruments Act and that further it has also been held in paragraph 16 thereof that the words ".... as if that subsection had been in force at all material times.........."
used with reference to Section 142(2), as employed in 142A (1) of the O.P.(Crl.) No.454/16 & ::25::
Z O.P.(Crl.) 754/17 Amended Act gives retrospectivity to that provision, etc. Therefore, it is also pointed out that in view of the legislative amendment so made the only courts having jurisdiction to try the offence, to conduct enquiry or trial the offence under Section 138 of the Negotiable Instruments Act is the competent Magistrate Court having territorial jurisdiction over the collection Bank area in case the cheque has been presented for collection. Accordingly, it is pointed out that the only court which can now try the offence in the instant case is the one at New Delhi assuming that the averments in the complaint that the collection Bank in these cases are situated in New Delhi are correct. It is also brought to the notice of this Court by the learned prosecutor that the abovesaid amendments made effective from 15.6.2015 in the N.I. Act, has not in any manner altered the clear provision in Section 138 of the Negotiable Instruments Act that the incident of returning of the presented cheque by the drawee Bank as unpaid due to insufficiency of funds, would result in the deemed commission of the offence under Section 138. Therefore in law, the place of commission of the offence is the place where the dishonour of the cheques occur, but that the only court which is having jurisdiction as the competent court to try the offence is the Magistrate Court having territorial jurisdiction over the collection Bank area.
O.P.(Crl.) No.454/16 & ::26:: Z O.P.(Crl.) 754/17
14. On considering the abovesaid rival pleas in this regard, this Court need not pronounce any final opinion on this issue, as this Court is not vested with the jurisdiction to entertain these petitions and all those issues raised by the petitioner are left open to be appropriately raised and decided before the competent fora concerned. In the light of all these aspects, the above Original Petitions (Crl.) are liable to be dismissed as not maintainable.
15. It is made clear that the dismissal of these Writ Petitions are only on the ground of lack of territorial jurisdiction and none of the observations and findings in this order shall be construed as an expression of opinion regarding the merits of the controversy and it is also made clear that all the objections and defences of the petitioner are left open to be decided appropriately as and when raised by the petitioner before the appropriate competent forum.
In this view of the matter, the Original Petitions (Crl.) will stand dismissed as not maintainable, but with the abovesaid liberty to the petitioner.
ALEXANDER THOMAS JUDGE csl