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2011 DIGILAW 2425 (PAT)

Sujeet Kumar v. State of Bihar

2011-12-08

AHSANUDDIN AMANULLAH

body2011
AHSANUDDIN AMANULLAH, J.:–Heard Mr. Devendra Kumar Sinha, learned Senior counsel for the petitioner, learned A.P.P. for the State as well as Mr. Bindhyachal Singh, learned counsel appearing for opposite party no. 2. 2. The present application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’), for quashing of the order taking cognizance dated 27.6.2005 by the learned S.D.J.M., Purnea in C.A. No. 628 of 2003 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘Act’) and also under Section 420 of the Indian Penal Code. 3. As per the complaint petition the opposite party no. 2 (complainant) had arranged for and given a loan of Rs. 4,00,000/- to the petitioner on his request for opening of S.T.D. booths. The said money is said to have been given to the petitioner in the District of Purnea in August, 2001. Thereafter it is stated that the petitioner had agreed to return the money, since he had arranged for the same, and in that view of the matter and also because of the earlier relationship between the parties, no receipt was taken. Later on the opposite party no. 2 issued two separate cheques of Rs. 2,00,000/- each on 24.12.2002 and 28.12.2002 in favour of the complainant but on presentation to the Bank the same was returned due to insufficient funds in the account. The said cheques were presented on 29.1.2003 and were drawn on Allahabad Bank, Sheikhpura in the District of Patna. They were presented on 29.1.2003 in the Canara Bank Branch at Raja Bazar, Patna in which opposite party no. 2 had his account. It is stated that both the cheques remained uncashed and the Bank sent a report on 30.1.2003 in this regard which was received alongwith the dishonored cheques by opposite party no. 2 on 8.2.2003 from Canara Bank. It is stated that the opposite party no. 2 then went to the petitioner who assured that he will put sufficient money in his account and the cheques would be honoured and accordingly, again on 15.2.2003 when the complaint went to enquire whether there was sufficient funds in the account he was informed that no money has been deposited. Thereafter, it is said that a written notice dated 19.2.2003 was sent to the petitioner, but the same was not replied to. Thereafter, it is said that a written notice dated 19.2.2003 was sent to the petitioner, but the same was not replied to. It is further stated that in April, 2003, the petitioner came to the complainant (opposite party no. 2) and asked him to deposit the cheque which was so done on 5.5.2003 but the cheque bounced on 6.5.2003 and similarly it was again presented on 10.6.2003 but again bounced on 12.6.2003. 4. It is thus alleged that the petitioner and other co-accused had committed criminal offence and cheated the complainant and prayer was made to punish them for offence under Section 138 of the Act and Sections 406, 420 and 120B of the Indian Penal Code. During course of enquiry under Section 202 of the Code the complainant was examined on solemn affirmation alongwith two other witnesses and finally by the order impugned dated 27.6.2005 cognizance has been taken under Section 138 of the Act and Section 420 of the Indian Penal Code against both the accused persons named in the complaint petition. 5. Learned senior counsel appearing for the petitioner assails the impugned order on various grounds. He submits that in view of the admitted fact as stated in the complaint petition itself there is absolutely no proof or evidence that the petitioner was ever given Rs. 4,00,000/- by the complainant and thus there is no question of applicability of Section 420 of the Indian Penal Code. He next submits that the complaint petition itself was barred under Section 142 read with Section 138 of the Act. He submits that initially it is the stand in the complaint petition itself that legal notice was sent on 19.2.2003 and thus as per the provisions of Section 142 read with Section 138 of the Act, the complaint petition had to be filed within one month of the date on which the cause of action arose under Clause (c) of the proviso to Section 138 which would be 15 days of the receipt of the notice sent within thirty days of the receipt of information from the bank regarding return of cheque as unpaid, demanding such payment. In the present case there is no notice after 19.2.2003 and the complaint petition having been filed on 17.6.2003, is hopelessly time barred in law and according to him the delay has neither been explained by the complainant nor the Court has dealt with this issue in the order impugned. He submits that mere mentioning of events like the presentation of the cheques on oral assurance will not suffice the requirement under Section 142 read with Section 138 of the Act. 6. He lastly submits that no cause of action or even part of cause of action for filing the complaint petition at Purnea arose and thus on the ground that the courts at Purnea have no territorial jurisdiction, the complaint petition itself should not have been entertained. 7. Learned counsel for the opposite party no. 2 on the other hand submits that as per Sections 177 and 178 of the Code ordinarily any offence shall be tried by a Court within whose local jurisdiction it was committed and further if an offence is committed partly in one local area and partly in any other, then it may be inquired into or tried by a Court having jurisdiction over any of such local areas. He therefore, submits that as per the complaint petition at least part of cause of action definitely arose at Purnea since the payment was made by opposite party no. 2 to the petitioner at Purnea and thus the Court at Purnea do have the jurisdiction and the complaint petition is maintainable and the impugned order taking cognizance is also valid both in law as well as on facts. 8. Learned counsel has relied upon the decision rendered in the case of Tripurari Kumar Mishra Vs. The State of Bihar reported in 2000 (4) PLJR 422 , the relevant being at paragraph no. 6, which states that the jurisdiction matter is of two kind, one which goes to the root of the matter and if the Court not empowered to try a particular case does try it, the entire trial is void. This in fact deals with the substantive jurisdiction of the Court concerned. 6, which states that the jurisdiction matter is of two kind, one which goes to the root of the matter and if the Court not empowered to try a particular case does try it, the entire trial is void. This in fact deals with the substantive jurisdiction of the Court concerned. The territorial jurisdiction is provided just as a matter of convenience keeping in mind the administrative point of view with respect to the work of a particular Court for the convenience of the accused who will have to meet the charges levelled against him and also convenience of the witnesses who have to appear before the Court. He therefore, submits that there is no illegality in the order impugned. 9. Learned counsel has also relied on the decision of this Court in the case of Kunti Devi Vs. State of Bihar reported in 2006 (1) P.L.J.R. 616 , in which it is stated that lack of territorial jurisdiction to try a criminal case is only an irregularity which would not vitiate the proceeding. This proposition was relied by learned counsel for the opposite party no. 2 by way of alternative argument where, for the sake of argument, even if this Court were to hold that the Court at Purnea has no jurisdiction, still the order impugned taking cognizance would not stand vitiated in law. 10. Learned counsel for the petitioner, by way of reply, states that here it is wrongly being canvassed that the sequence of events start from the alleged payment made by the opposite party no. 2 to the petitioner of Rs. 4,00,000/- at Purnea. He submits that the Court concerned is only to go into the aspect whether the cheques which are alleged to have been issued by the petitioner in favour of opposite party no. 2 and which remained uncashed can fasten criminal liability upon the petitioner under the Act as well as the Indian Penal Code. 11. He submits that this is a totally different and distinct charge/allegation and the Courts are obliged to consider this aspect even though the origin and explanation as well as the reason for the petitioner to issue cheques to the opposite party no. 2 may have their origin at Purnea but for the jurisdictional aspect, the payment alleged to have been made by opposite party no. 2 may have their origin at Purnea but for the jurisdictional aspect, the payment alleged to have been made by opposite party no. 2 to the petitioner at Purnea shall not in law confer jurisdiction to the Courts at Purnea and it was the exclusive jurisdiction of the local Courts at Patna which could have entertained the complaint petition. 12. Learned counsel for the petitioner relied upon the decision in the case of P.K. Muraleedharan Vs. C. K. Pareed reported in 1992 CRI. L.J. 1965 which is a decision of the Kerla High Court in which at Paragraph-21 it has been held as under:– “21 From the discussions in the foregoing paragraphs the position that emerges is that the venue of enquiry or trial has primarily to be determined by the averments contained in the complaint. If on the basis of such averments the court has jurisdiction, it has to proceed with the complain. The place where the creditor resides or the place where the debtor resides cannot be said to be the place of payment unless there is any indication to that effect either expressly or impliedly. The cause of action as contemplated in S. 142 of the Act arises at the place where the drawer of the cheque fails to make payment of the money. That can be the place where the bank to which the cheque was issued is located. It can also be the place where the cheque was issued or delivered. The court within whose jurisdiction any of the above mentioned places falls has therefore got jurisdiction to try the offence u/s 138 of the Act.” 13. He submits relying upon the said decision as well as the provisions of law that it is obvious that the enquiry as well as the trial could be held only where the cause of action arises at the place where the drawer of the cheque fails to make payment of money and in the present case the said happened in Patna and therefore the Courts at Purnea do not have any jurisdiction. 14. Considering the facts and circumstance of the case, this Court is inclined to agree with the submissions of learned counsel for the petitioner with regard to the legal position relating to lack of jurisdiction of the Court at Purnea as well as the limitation prescribed under the Act. 14. Considering the facts and circumstance of the case, this Court is inclined to agree with the submissions of learned counsel for the petitioner with regard to the legal position relating to lack of jurisdiction of the Court at Purnea as well as the limitation prescribed under the Act. As far as merits are concerned, this Court would not like to go into the same since it is a matter to be decided after leading of evidence and rebuttal of the same by leading counter evidence which is clearly required to be gone into by the Court and the accused tried for the offence of duly issued cheques not being encashed by the person in whose favour it was issued, all of which happened in Patna. The reason being given in the complaint why the cheques were issued in favour of opposite party no. 2 by the petitioner is that earlier by way of help/loan the amount was given by the opposite party no. 2 to the petitioner. This is only by way of justification and explanation for the petitioner to hand over the cheques to the opposite party no. 2 but is not relevant for the matter under consideration since the Court shall only have to look into the aspect whether duly issued cheques were returned without payment due to the fault/laches on the part of the petitioner. 15. With regard to decision cited by learned counsel for the opposite party no. 2 in the case of Kunti Devi (supra), this Court would respectfully differ from the reasoning given in the said decision for the reason that Section 177 of the Code clearly states that under ordinary circumstances the place where enquiry should be made and trial held would be the Court in whose local jurisdiction the offence was committed. Section 178 of the Code thereafter clarifies the position that where it is not certain as to in which local area the offence was committed or where the offence was committed partly in one local area and partly in another, then it may be inquired into or tried by the Court having jurisdiction over any such local area. Section 178 of the Code thereafter clarifies the position that where it is not certain as to in which local area the offence was committed or where the offence was committed partly in one local area and partly in another, then it may be inquired into or tried by the Court having jurisdiction over any such local area. In the present case this Court is of the opinion that the jurisdiction matter is related to the commission of offence and only if the offence is committed at one or more places, the Court at both places has jurisdiction to inquire into and try the same. However, in the present case it is clear that the offence alleged, which is the dishonouring of cheques of the petitioner in favour of opposite party no. 2, has no connection with any event having taken place at Purnea. Thus, in that view of the matter, the offence being limited to the circumstances relating to the receipt of the cheques by the opposite party no. 2 and subsequent presentation of the same to the Bank which in turn returned the cheques, the presentation before the Bank concerned as well as the location of the Bank are only relevant and germane in the present case and all of them relate to Patna. Thus as per Sections 177 and 178 of the Code, since the alleged offence has been committed only at Patna and not at Purnea, according to this Court, Purnea would not be the place where such enquiry or trial could be held. 16. Further, from Section 462 of the Code it is evident that per se, no finding, sentence or order of any criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. 17. From the above it is clear that the findings, sentence or order of a criminal Court cannot be set aside unless it has occasioned failure of justice. 17. From the above it is clear that the findings, sentence or order of a criminal Court cannot be set aside unless it has occasioned failure of justice. In the present case if an order is allowed to remain and the matter left as such, it would be conferring jurisdiction on a Court which does not have the jurisdiction to inquire into or try the same and since the objection has been taken by the petitioner and brought before this Court, this Court would be obliged to take cognizance of the same and ensure that it does not occasion failure of justice in the sense that the petitioner being entitled to face inquiry and trial only at Patna, is not put to harassment by having to defend himself at Purnea i.e., a place which has no connection to the alleged offence. 18. The other decision relied upon by learned counsel for the opposite party no. 2, in the case of Tripurari Kumar Mishra (supra) is also distinguishable in as much as it has been held in the said case that the territorial jurisdiction is provided keeping in mind the convenience of the accused who will have to meet the charges levelled against him and also the convenience of the witnesses. In the present case the petitioner has no connection with Purnea and resides at Patna. Thus the proceeding at Purnea would clearly harass the petitioner. Further, in the other case the petitioner had never raised the plea of want of jurisdiction before the Court. In view of the above, the said decision does not come to the aid of the opposite party no. 2 in the present case. This Court also feels that the decision rendered in the case of P. K. Muraleedharan (supra), relied upon by the petitioner is more appropriate to the facts and circumstances of the present case. 19. Another aspect in the matter is that cognizance in a case under the Act is to be taken as per the provisions of the concerned Act and the relevant section is Section 142 which begins with the words “notwithstanding anything contained in the……..”. This non obstante clause itself indicates that the power to take cognizance shall be governed by the provisions of the Act and thus shall have overriding effect on all other acts. This non obstante clause itself indicates that the power to take cognizance shall be governed by the provisions of the Act and thus shall have overriding effect on all other acts. In the present case Section 142 read with Section 138 of the Act, applied to the facts involved herein leaves no scope of any doubt that the cognizance has also been taken beyond the time prescribed. Though the Court has the power to take cognizance beyond the stipulated time, but the same can be done only if the party is able satisfy the Court that he had sufficient cause for not making a complaint within such period. In the present case, in the complaint petition, there is neither any averment nor even an attempt made with regard to satisfying the Court on the point of delay in filing of the complaint. Only statements are made with regard to the sequence of events. There is also no prayer or plea in the complaint for waiving the delay. Further the Court below has also not dealt with the issue even though it was obliged to specifically deal with the issue justifying taking of cognizance beyond the normal period as stipulated in the Act itself. 20. For the reasons aforesaid the order taking cognizance dated 27.6.2005 in C.A. Case No. 628 of 2003 by the S.D.J.M., Purnea is set aside. This would however, not preclude the opposite party no. 2 from pursuing his remedy, which may be available to him in accordance with law. The opposite party no. 2 shall not be put to any disadvantage on account of the period spent while pursuing his remedy and the Court/authority concerned shall take into account the same if the opposite party no. 2 is called upon to explain the delay. 21. Accordingly, the petition stands allowed in the aforesaid terms.