Kerala High Court
Prasannan vs Bensy Alex on 13 March, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 13TH DAY OF MARCH 2017/22ND PHALGUNA, 1938
Crl.Rev.Pet.No. 340 of 2017 ()
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ST 2539/2015 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,
KOLLAM
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REVISION PETITIONER(S)/COMPLAINANT:
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PRASANNAN, AGED 43 YEARS, S/O.KARUNAKARAN,
RESIDING AT SREEVALSAM, NOORANADU
(KANNAKONATHU VEEDU,KADUVINAL MURI,
VALLIKUNNAM VILLAGE, MAVELIKARA)
BY ADV. SRI.S.SREEKUMAR (KOLLAM)
RESPONDENT(S)/ACCUSED & STATE:
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1. BENSY ALEX
RESIDING AT ARAPPURA VADACKETHIL,
ILLAMBALLOOR, KUNDRA,
KOLLAM DISTRICT-691 501.
2. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI. ALEXANDER GEORGE
R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALETTY
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 13-03-2017, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
bp
ALEXANDER THOMAS, J.
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Crl.R.P.No.340 Of 2017
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Dated this the 13th day of March, 2017.
O R D E R
The order under challenge in this revision is the one passed on 3.9.2015 by Judicial First Class Magistrate Court-I, Kollam, in S.T.No.2539/2015, whereby the complaint filed by the petitioner herein alleging offence under Sec.138 of the Negotiable Instruments Act, against the 1st respondent herein was dismissed due to the absence of the complainant under Sec.204(4) of the Code of Criminal Procedure.
2. Heard Sri.S.Sreekumar, learned counsel appearing for the revision petitioner (complainant), Sri.Alexander George, learned counsel appearing for R-1 (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.
3. Initially, the above complaint was filed before the Judicial First Class Magistrate Court-II, Mavelikkara, as S.T.No.71/2015. In view of the judgment dated 1.8.2014 of the Apex Court in the Dasarath Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, the Magistrate Court at Mavelikkara, had transferred the case to the Court of Judicial First Class Magistrate Court-I, Kollam, where it ::2::
Crl.R.P.No.340 Of 2017 was re-numbered as S.T.No.2539/2015. The case was re-filed on 26.3.2015 before the Judicial First Class Magistrate Court-I, Kollam, and the case was posted for return of summons to 23.5.2015 and the case was again posted to 11.8.2015 for the appearance of the accused.
On that day also, summons was returned unserved and the case was posted to 3.9.2015, it is averred. But unfortunately the petitioner's advocate clerk has mistakenly noted the next posting date as 3.10.2015 instead of 3.9.2015 and when the case was called on 3.9.2015, the court below had dismissed the complaint on the same day itself due to non appearance of the complainant. The petitioner's counsel had appeared before the court below on 3.10.2015 and when the case was not called the petitioner's counsel had enquired the bench clerk about the reason for not calling the case and it was only then it came to the notice that due to the provisions of the Negotiable Instruments Amendment Ordinance Act, 2015 (which came into force on 15.6.2015), the case will have to be transferred to the Magistrate Court at Mavelikkara, which is having territorial jurisdiction over the collection bank. It was only then the petitioners could realized that the case was already dismissed as per the impugned order.
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Crl.R.P.No.340 Of 2017
4. It is relevant to note that after the pronouncement of the Apex Court judgment on 1.8.2014 in Dasarath Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, substantive amendments have been made in the Negotiable Instruments Act as per the Negotiable Instruments Amendment Ordinance Act, 2015, which was later replaced by the Negotiable Instruments (Amendment) Second Ordinance, 2015, as well as the Amended Act. A Division Bench of this Court in the case Binoy K.Mathew v. Godley Dev John & anr. reported in 2015 (4) KHC 243 (DB) in paras 19 & 20 has held as follows:
"19. It is submitted by the learned counsel appearing for the petitioners that the complaints involved in these Crl. R.P.s were filed in courts which had jurisdiction, going by sub-section (2) of S.142 of the N.I. Act inserted by the Ordinance No.6 of 2015. The Ordinance is in force. The ordinance promulgated under Article 123 of the Constitution of India shall have the same force and effect as an act of Parliament. The Ordinance has not ceased to operate as provided in sub clause (a) of Clause (2) of Article 123 of the Constitution of India, nor was it withdrawn as provided in sub clause (b) therein. If so, the complaints would have been maintainable before the courts where they were filed, going by the submission made by the counsel. The non obstante clause in S.142A of the N.I. Act, as inserted by the Ordinance, covers cases pending before any court, whether filed before it or transferred to it, before the commencement of the Ordinance and such cases shall be transferred to the court having jurisdiction under sub-section (2) of S.142 of the N.I. Act as if that sub-section had been in force at all material times. Ordinance No.6 of 2015 is clarificatory in nature, clarifying the territorial jurisdiction for trying the cases for dishonour of cheques as indicated in the Statement of Objects and Reasons appended to the Amendment Bill. Sub-section (1) of S.142A of the N.I. Act would make the position clear that it is clarificatory in nature. If so, it is not necessary to direct the courts which passed the impugned orders to entertain the complaints and consider the applications for condonation of delay. It would be sufficient if the petitioners are permitted to present the complaints before the courts where they were originally filed.
20. On the presentation of the complaints before the courts where they were originally filed, naturally it would be beyond the period of limitation if the date of such ::4::
Crl.R.P.No.340 Of 2017 presentation is taken as the material date. S.470 of Cr.P.C. gives ample powers to the Court to exclude the time during which the complainant was prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision. Going by the wording of S.470, a fresh complaint is required. But the principles underlying S.470 of the Cr.P.C. will apply in the peculiar facts and circumstances of the case, even if the same complaint is re-presented. In view of the events which took place after the judgment of the Supreme Court in Dashrath Rupsingh Rathod's case (supra) and the position as clarified in the N.I. Amendment Ordinance 2015 (No.6 of 2015), as well as the direction given by the Supreme Court in paragraph 22 of the Dashrath Rupsingh Rathod's case (supra), we are of the view that the petitioners can be permitted to present the complaints in the respective courts where they were originally filed. On such presentation, the Courts shall treat the same having been filed on the date on which the respective complaint was originally filed. The petitioners shall present their respective complaint in the proper Court namely, the Court where it was originally filed, within one month from today."
Sub-sec.(2) of Sec.142 as per the amended provision reads as follows:
Section 142: Cognizance of offences.-
xxx xxx xxx (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 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. Sec.142A introduced as per the amended provision reads as follows:
Section 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, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times.
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Crl.R.P.No.340 Of 2017 (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) 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, before which the first case was filed and is pending, as if that sub-section had been in force at all material times.
5. The Apex court in the case Bridgestone India Private Limited v. Inderpal Singh reported in (2016) 2 SCC 75 has categorically held in para 13 thereof that a perusal of the amended Sec.142(2), leaves no room for any doubt, especially in view of the explanation thereunder, that with reference to an offence under Sec.138 of the N.I.Act, the place where a cheque is delivered for collection, i.e., the branch of the bank of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction. Further it was held in para 16 of the above said judgment of the Apex Court that since the dishonoured cheque in question in that case was presented for encashment at the collection bank of the complainant at Indore, the Judicial First Class Magistrate Court, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the complainant therein, after promulgation of ::6::
Crl.R.P.No.340 Of 2017 the Negotiable Instruments (Amendment) Second Ordinance, 2015, and that the words "......as if that sub-section had been in force at all material times ........" used with reference to Sec.142(2) in Sec.142A(1) gives retrospectivity to that provision, etc. Accordingly, in the light of these provisions, the complaint ought to have been either transferred or permitted to be re-filed before the Magistrate Court concerned which is having territorial jurisdiction over the collection bank in the light of the provisions contained in Sec.142(2) as well as Sec.142A of the amended provisions of the N.I.Act, which came into force on 15.6.2015. The above said grounds stated by the petitioner regarding the mistake in noting the posting date appears to be genuine. That apart, after the coming into force of the Amended Ordinance on 15.6.2015, the Magistrate Court at Kollam did not have jurisdiction to entertain the complaint any longer and so, on this ground alone, the impugned order passed on 3.9.2015 by the Magistrate at Kollam is clearly without jurisdiction and hence ultra vires. In this view of the matter, the impugned order is set aside and the complaint is restored to the court below concerned. The learned Magistrate at Kollam, will ensure that the original of the complaint is returned to the complainant's counsel within 2 weeks from the date of receipt of a certified copy of this order, ::7::
Crl.R.P.No.340 Of 2017 upon which the complainant will ensure that the same is re-presented before the competent Magistrate Court concerned, which is having territorial jurisdiction over the collection bank as per the amended provisions in Sec.142(2) and Sec.142A of the N.I.Act, within 2 weeks from the date of return of the complaint by the former court.
With these observations and directions, the Crl.R.P stands finally disposed of.
ALEXANDER THOMAS, Judge.
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