Nalam Nageshwara Rao & Co. v. Fungicides India Ltd.
2015-05-06
ALI MOHAMMAD MAGREY
body2015
DigiLaw.ai
JUDGMENT : Ali Mohd. Magrey, J. 1. This petition under Section 561-A Cr.P.C. has been preferred to quash/dismiss the complaint filed under Section 138 of Negotiable Instruments Act and pending adjudication before the trial court. The case of the petitioners is that they were appointed as dealer/distributor in Fertilizers and Pesticides. They had given two signed blank cheques bearing Nos. 647394 and 647395 drawn on Karnataka Bank of Guntur as security to the respondent on 17.09.1999. However, the said Bank account was closed by them on 27.12.1999 and the petitioners opened their account at Karnataka Bank Limited Vijayvada. It is stated that information about the closure of the account and opening of new Bank account was conveyed to the respondent on 29.12.1999. It is alleged that the respondent fraudulently filled in the blank cheque No. 647394 when the same were not given in discharge of any legally enforceable debt. The complaint was filed at Srinagar on 10.08.2001. 2. The petitioners had earlier invoked the inherent jurisdiction of this Court in terms of a similar petition which was dismissed on 17.12.2011. The present petition has been filed on the ground that certain new fact has come to the knowledge of the petitioner which necessitated filing of the fresh petition. 3. The grounds taken in the present petition are that the complainant through manipulation filled in the blanks in the cheque and put the date as 10.08.2001 when the petitioner did not maintain any account in Karnataka Bank of Guntur on the said date; therefore, according to the petitioners, Section 138 of the NI Act cannot be invoked; that the complaint has not been filed by the competent person; that since the cheque was drawn on Karnataka Bank, Guntur, the courts at Srinagar have no jurisdiction to entertain the complaint etc. etc. 4. I have heard learned counsel for the parties v perused the record and considered the matter. 5. The complaint in the instant case has been filed way back on 11.10.2001. Perusal of the trial court record reveals that by order dated 17.12.2001 passed by this Court in the earlier 561-A Cr.P.C. petition No. 80/2001, among other things, the Court had observed and directed as under: "20. Enough is enough. The complaint is pending for last 11 years.; Expeditious disposal of the same shall be in keeping with the canons of justice.
Enough is enough. The complaint is pending for last 11 years.; Expeditious disposal of the same shall be in keeping with the canons of justice. Trial court shall proceed in the matter with convenient speed by scheduling the case in a manner so as to ensure disposal within the shortest possible period. 21. The petitioner (accused) has to come from Andhra Pradesh, it may not be convenient for him to appear before the trial court on each and every date of hearing. The trial court shall consider their motion for dispensing with personal appearance subject to appearance through counsel or authorised agent and subject to the condition that when the presence shall be indispensable, they shall remain present in the court." 6. After passing of the aforesaid order by this Court no substantial progress appears to have been made in the trial of the case. However, in the meantime, the Supreme Court has been pleased to review its earlier decision in Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 , and held that the general rule stipulated under Section 177 of Cr.P.C. applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof. Holding so, the Supreme Court observed that "we are quite alive to the magnitude of the impact that the present decision shall have on possibly lakhs of cases pending in various Courts spanning across the country". The Supreme Court, in the aforesaid judgment, accordingly, laid down as under: "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.
The Supreme Court, in the aforesaid judgment, accordingly, laid down as under: "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/re-filed 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." 7. The Supreme Court reiterated the aforesaid view and decision in Vinaykumar Shailendra v. Delhi High Court Legal Services Committee, (2014) 10 SCC 708 , observing, inter alia, that what is important is whether the drawee bank which dishonoured the cheque is situate within the jurisdiction of the court taking cognizance. 8. The complaint pending before the trial court would, therefore, be governed by the ratio laid down by the Supreme Court in the aforesaid decisions. However, I think it would be appropriate to direct the petitioners to appear before the trial court and take up whatever objections are available to them in law before the trial court. 9. This petition is, accordingly disposed of. Registry shall send down the trial court records forthwith. The parties shall appear before the trial court on 09.05.2015. However, the liberty granted by this Court to the petitioners vide order dated 17.12.2011 shall continue to be operative.