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2015 DIGILAW 1815 (MAD)

Murugesan v. T. K. Ramasamy

2015-04-07

S.NAGAMUTHU

body2015
JUDGMENT :- 1. The petitioner is the sole accused in STC No.363 of 2012 on the file of the Judicial Magistrate, Thuraiyur, Trichy District. The respondent is the complainant in the case. The respondent had filed the said case alleging that the petitioner had committed offence punishable under Section 138 of the Negotiable Instruments Act. 2. On service of summons, the petitioner appeared before the trial Court. From the records, it is revealed that evidence on the side of the complainant was commenced and as a matter of fact sworn affidavit was filed in the place of chief examination, as provided under Section 145(1) of the Negotiable Instruments Act, 1881. (hereinafter referred to as 'the Act'). Thereafter, it appears that the petitioner sought to cross examine the deponent (P.W.1) by summoning him. Though, subsequently, as ordered by this Court, P.W.1 appeared before the Court and made himself available for cross examination, the petitioner did not choose to cross examine her. Thereafter the case was listed for questioning the accused under Section 313 of the Code of Criminal Procedure. Accordingly, he was also questioned. 3. At that stage, the petitioner filed CMP No.6358 of 2014 before the trial Court contending that the trial Court had no jurisdiction to try the said case and requesting the trial Court to return the complaint to the complainant so as to be presented before the learned Judicial Magistrate, No.II, Namakkal as per the judgment of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod vs. State of Maharashtra reported in 2014(4) CTC 666. The learned Judicial Magistrate dismissed the said petition by order dated 29.10.2014. Challenging the same, the petitioner is before this Court with this revision. 4. This revision has come up today for admission. I have heard the learned counsel for the petitioner and I have also perused the records carefully. 5. The learned counsel for the petitioner would submit that as per the judgment of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod cited supra, the trial Court ought to have returned the complaint to the complainant for being presented before the learned Judicial Magistrate, No.II, Namakkal. According to him, in the instant case, since the cheque was dis-honoured by the bank, which falls within the territorial jurisdiction of the learned Judicial Magistrate, No.II, Namakkal and the said Court alone has got territorial jurisdiction to entertain the complaint and to try the accused. According to him, in the instant case, since the cheque was dis-honoured by the bank, which falls within the territorial jurisdiction of the learned Judicial Magistrate, No.II, Namakkal and the said Court alone has got territorial jurisdiction to entertain the complaint and to try the accused. The learned counsel would further point out that though the cheque was presented, which falls within the territorial jurisdiction of the learned Judicial Magistrate at Thuraiyur, the said Court ought not to have entertained the complaint for want of jurisdiction as per the law laid down by the above case in the judgment of the Hon'ble Supreme Court. The learned counsel for the petitioner would further point out that in the instant case, since the stage of the case had not reached the stage of Section 145(2) of the Act, the complaint should have been returned. 6. I have considered the above submissions. 7. The foundation for filing the petition before the lower Court is the direction issued by the Hon'ble Supreme Court in Dashrath Rupsingh Rathod case cited supra. In the said judgment, the Hon'ble Supreme Court has held that the Court within whose territorial jurisdiction, the bank, which dis-honoured the cheque, is located alone has got territorial jurisdiction to try the offender. Applying the said principle to the facts of the present case, it can be safely concluded that the learned Judicial Magistrate, No.II, Namakkal, alone has got territorial jurisdiction to try the case. But in paragraph No.20 of the judgment, the Hon'ble Supreme Court has issued certain directions in respect of pending cases, which reads as follows: “20.We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged Accused/Respondents, who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing Territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other complaints (obviously including those where the Accused/Respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.” 8. A perusal of the above direction of the Hon'ble Supreme Court would go to show that in cases where the proceedings of a case have gone to the stage of Section 145(2) of the Act or beyond, the case shall be deemed to have been transferred from the Court having ordinary jurisdiction to the Court where it is pending. In the instant case, if it is concluded that the case has gone to the stage of Section 145(2) of the Act, then as directed by the Hon'ble Supreme Court, this case shall be deemed to have been transferred from the file of the learned Judicial Magistrate, No.II, Namakkal to the file of the learned Judicial Magistrate, Thuraiyur. It is only on this aspect, the learned counsel would submit that factually the present case has not gone to the stage of Section 145(2) of the Act. In this regard, let us have a quick look into Section 145(2) of the Negotiable Instruments Act. “145. Evidence on affidavit: (1) ... It is only on this aspect, the learned counsel would submit that factually the present case has not gone to the stage of Section 145(2) of the Act. In this regard, let us have a quick look into Section 145(2) of the Negotiable Instruments Act. “145. Evidence on affidavit: (1) ... (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.” 9. As per the said provision, under Sub Section (2), on an application of the prosecution or the accused, the Court, if deems fit, may summon any witness, who has given evidence on affidavit already, for the purpose of cross examination. 10. In the case on hand, the records reveal that such petition was filed in C.M.P.No. 6358 of 2014 to recall P.W.1, who had given evidence on affidavit. That petition was allowed and P.W.1 was also summoned. Thus, on facts, there can be no doubt in the case that the proceedings before the lower Court had gone to the stage of Section 145(2) of the Act. Therefore, there can be no difficulty for this Court to hold that the present case is deemed to have been transferred from the file of the learned Judicial Magistrate, No.II, Namakkal to the file of the learned Judicial Magistrate, Thuraiyur. 11. But, the contention of the learned counsel for the petitioner is that though, in the case, P.W.1 had been recalled, actual cross examination has not been commenced. Therefore, according to the learned counsel, it should be held that the case had not reached the stage of Section 145(2) of the Act. This argument, though attractive, has got no force at all. Section 145(2) of the Act does not speak of actual cross examination to be done by the adverse party, instead, it speaks only of the power of the Court to summon the witness for the purpose of cross examination, who had earlier filed affidavit in the place of chief examination. If the Court had exercised its power to summon the witness for the purpose of cross examination, for all purposes, it shall be held that the case has reached the stage of Section 145(2) of the Act as dealt with in the above judgment of the Hon'ble Supreme Court. If the Court had exercised its power to summon the witness for the purpose of cross examination, for all purposes, it shall be held that the case has reached the stage of Section 145(2) of the Act as dealt with in the above judgment of the Hon'ble Supreme Court. After the witness is summoned, if the adverse party chooses not to cross examine him, it cannot be said that the case has not reached the stage of Section 145(2) of the Act. To repeat, I have to state that the question is as to whether the Court had exercised its power to summon the witness or not. If the Court had exercised the power to summon the witness, then it shall be held that the stage of Section 145(2) of the Act has reached. 12. In the instant case, as I have already pointed out that the lower Court had exercised its power under Section 145(2) of the Act and P.W.1 was summoned. But for his own reasons, the accused had not chosen to cross examine P.W.1. The present case did not stop with that. The case has already reached the stage of Section 313 Cr.P.C. In view of the said position, the argument of the learned counsel that the case has not reached the stage of Section 145(2) of the Act deserves only to be rejected. 13. The learned counsel for the petitioner placed reliance on the judgment of the Delhi High Court in Harpreet Singh vs. State (Govt. Of NCT of Delhi) & Another reported in 2015 (147) DRJ 325 , wherein the Delhi High Court had an occasion to consider the question as to whether the case had gone to the stage of Section 145(2) of the Act. In paragraph No.16 of the judgment, the Delhi High Court has observed as follows: “16. In the present case, it is not disputed that the notice under Section 251 of Cr.P.C. was served on the petitioner on 29.05.2014 and the petitioner was granted time to move an application under Section 145(2) of NI Act. No request to cross-examine the complainant in terms of Section 145(2) has not been allowed by the learned trial Court. Thus, in my view, it cannot be said that the complaint has reached the stage of Section 145(2) of NI Act or beyond thereof.” 14. No request to cross-examine the complainant in terms of Section 145(2) has not been allowed by the learned trial Court. Thus, in my view, it cannot be said that the complaint has reached the stage of Section 145(2) of NI Act or beyond thereof.” 14. From the above extracted portion of the judgment of the Delhi High Court, it is crystal clear that not even an application was filed under Section 145(2) of the Act for summoning the witnesses. It was in those circumstances, the Delhi High Court has held that the case has not reached the stage of Section 145(2) of the Act. 15. The learned counsel, nextly, relies on a judgment of the Delhi High Court in Neerav J.Shah vs. State and it is reported in MANI/DE/0946/2015, wherein in paragraph No.16, the Delhi High Court has observed as follows: “16. In the face of latest Apex court decision in Shivgiri (supra), reliance placed upon decisions in Peter David Xavier Pinto v. Dinesh M.Ranwat & Anr. 2014 SCC Online Bom 1248, New Delhi Tele Tech Pvt. Ltd. v. M/s. CISCO Systems Capital (India) Pvt. Ltd. 2015 SCC Online Del.6533, Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201 and CISCO Systems Capital (India) Pvt. Ltd. & Ors. 2015 SCC Online Del 6535 is of no avail. Applying the dictum of Apex Court in Dashrath Rupsingh (supra) which is reiterated in Shivgiri (supra), it is held that the complaints in which cross examination in pursuance to allowing of application under Section 145(2) of Negotiable Instruments Act, 1881 has not commenced, shall stand transferred to the court of competent territorial jurisdiction.” 16. This observation would also go to show that the Delhi High Court has found on facts that the case has not reached the stage of Section 145(2) of the Act. 17. The learned counsel relies on a judgment of this Court in United Travel Services vs. PGC Textiles Corporation Pvt. Ptd and Ors., which is reported in. In paragraph No.15, this Court has held as follows: “15. According to me, the Hon'ble Supreme Court held that there was no necessity for the complainant to give sworn statement after questioning of the accused and the earlier statement given by him can be taken as chief examination but that does not preclude the complainant from giving further evidence after the accused was questioned. According to me, the Hon'ble Supreme Court held that there was no necessity for the complainant to give sworn statement after questioning of the accused and the earlier statement given by him can be taken as chief examination but that does not preclude the complainant from giving further evidence after the accused was questioned. The earlier sworn statement recorded at the time of taking cognizance of the case may be sufficient and can be considered as chief examination and the accused may be called upon to cross examine the complainant. But it cannot be stated that at that stage the proceeding has gone to the stage of section 145(2) of the Negotiable Instruments Act, 1881. Admittedly, in this case, no order was passed and the proceeding was not called upon to lead the evidence nor the complainant exercised the option by filing an application to treat his sworn statement as already recorded as proof affidavit after questioning of the accused and therefore, it cannot be stated that the prosecution reached the stage of Section 145(2) of the Negotiable Instruments Act, 1881. Therefore, I am of the opinion that having regard to the facts of the case, that no evidence was let in by the complainant after the accused was questioned and the case was simply adjourned, it cannot be stated that the case has gone to the stage of Section 145(2) of the Negotiable Instruments Act, 1881.” 18. A perusal of the above extracted portion of the judgment would go to clearly show in that case no petition was filed under Section 145(2) of the Act before the Court to summon the witnesses. Thus, on fact this Court found that the stage of section 145(2) had not been reached. 19. But, in the instant case, I have held that on facts the stage of Section 145(2) of the Act had reached and therefore, as per the direction of the Hon'ble Supreme Court, the case is deemed to have been transferred to the file of the learned Judicial Magistrate, Thuraiyur. Therefore, the question of returning the complaint does not arise at all, as requested by the petitioner. Thus, the lower Court was right in dismissing the petition. 20. In the result, the Criminal Revision Petition fails and the same is, accordingly, dismissed. Consequently connected miscellaneous petition is closed.