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Karnataka High Court · body

2014 DIGILAW 999 (KAR)

Archibald Quadros v. Laxman Shetty, M. D. S

2014-11-17

A.N.VENUGOPALA GOWDA

body2014
Judgment 1. The petitioner filed a private complaint, under Section 200 of Code of Criminal Procedure, 1973 r/w. Sections 138 and 142 of the Negotiable Instruments Act, 1881 (for short the Act'), against the respondent, on 26.7.2013, in the Court of Additional Civil Judge and J.M.F.C at Kundapura. On 07.9.2013, the sworn statement was recorded. Exs.C1 to C-5 were marked on 21.09.2013. Criminal case against the accused for the offence punishable under Section 138 of the Act was registered on 17.1.2014 and process was issued to the accused. Upon appearance, on 12.6.2014, the accused was enlarged on bail. 2. This petition was filed on 10.11.2014, invoking Section 482 of Cr.P.C., to direct J.M.F.C., at Kundapura, to retain C.C.No.162/2014 on his file, on the ground that the petitioner suffers from various ailments and that the doctor advised him not to travel or undergo stress and that he finds extremely difficult to go to Mysore, which is at a distance of about 300 kms. 3. Mr. Dilraj Rohit Sequeira, learned advocate, contended that, if the case against the respondent, in C.C.No.162/2014,- on the file of Additional Civil Judge and J.M.F.C, Kundapura is not ordered to be retained, the petitioner would suffer severe hardship. He submitted that the respondent, a practicing Dentist and having good health, would not suffer any inconvenience or prejudice, by retaining of the case in the Court at Kundapura. He submitted that the respondent has availed the services of an advocate at Kundapura and that the advocate will be appearing for the purpose of recording plea etc., and it is only for the purpose of defence evidence, if any, the respondent's presence would be required and that the petitioner is ready to bear the travel cost of the respondent from Mysore. Learned counsel submitted that in order to do real and substantial justice, C.C.No.1-62/2014 be directed to be retained for trial and decision by the J.M.F.C at Kundapura. 4. Perused the complaint in PGR No.369/2013, registered as C.C.No.162/2014. According to the complainant, he advanced a hand loan of Rs.25.00 lakhs by way of cheque bearing No.302064 of Syndicate Bank, Marimallappa Junior College Campus, Mysore and towards repayment, the accused issued cheque bearing No.639875 dated 10.6.2013 of Karnataka Bank, V.V. Mohalla, Mysore and the cheque when presented for encashment was not honoured and was returned with a memo of the bank dated 13.6.2013. After making the demand by issue of a notice dated 27.6.2013 and alleging commission of offence under Section 138 of the Act, the aforesaid complaint was filed before the J.M.F.C., Kundapura. 5. In DASHRATH RUPSINGH RATHOD vs. STATE OF MAHARASHTRA AND ANOTHER, (2014) 9 SCC 129 , Apex Court has held that presentation of a cheque by the complainant at a place of his choice or issue of notice by him to the accused demanding payment of the cheque amount are not sufficient by themselves to confer territorial jurisdiction upon the Court, i.e., in respect of a complaint under Section 138 of the Act. 6. The ratio of law in the aforesaid decision was reiterated in M/s. APEX DISTRIBUTORS vs. TIM EX GROUP INDIA LIMITED, (2014) 8 SCC 878 and SREE MAHESH ST A TI ON ARIES vs. INDIABULLS FINANCIAL SERVICES LIMITED, (2014) 8 SCC 880 . 7. In the instant case, PCR No.369/2013 was filed before the J.M.F.C. at Kundapura, on the ground that the cheque was presented at Kundapura and upon its dishonour, notice demanding payment was issued from Kundapura. Based on the sworn statement of CW-1 and Exs.C-1 to C5, case was registered in C.C.Nc.162/2014 and process was issued against the accused. 8. In view of the admitted factual position that the cheque in question was dishonoured at Mysore, where the Bank on which it was drawn is located, it is clear that the alleged offence was committed in Mysore. In Dashrath Rupsingh Rathod (supra), it has been held as follows: "21. The interpretation of Section 138 of the NI 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 statutoiy 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. We clarify that the place of the issuance or delivery of the statutoiy 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 NI Act. The vindication of this view is duly manifested by the decisions and conclusion 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." (emphasis supplied) This petition has been filed to overcome the effect of the above decision. 9. The complaint having being presented before a Magistrate, who has no territorial jurisdiction, the prayer in this petition, 'to direct the J.M.F.C., Kundapura to retain the case for trial and decision', being against law, this petition is untenable. In the result, the criminal petition is rejected.