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2015 DIGILAW 961 (MP)

Prabod Narayan Tiwari v. Raj Kumar Sahu

2015-09-11

SUJOY PAUL

body2015
ORDER 1. The core issue involved in this case is whether the Court below was justified in entertaining the complaint preferred under section 138 of Negotiable Instruments Act, 1881 (for short, the ‘NI Act’) and was further justified in framing the charge when cheque was drawn from Lalitpur and was dishonoured from the bank situated at Lalitpur ? 2. Shri Amit Lahoti’s submission is based on the judgment of Supreme Court in (2014)9 SCC 129 (Dashrath Rupsingh Rathod v. State of Maharashtra and another). He urged that the apex Court made it clear that unilateral act of complainant in presenting the cheque at a place of his choice or issuing a notice for payment of the dishonoured amount cannot arm the complainant with the power to chose the place of trial. The trial must be at a place where cheque was deposited for collection in the bank of drawer. 3. Prayer is opposed by Shri Rathore by contending that the petitioner for this reason earlier visited this Court by filing Miscellaneous Criminal Case No. 5352/2009. In the said case, the petitioner was given liberty to raise this objection during cross-examination of witnesses or at the time of final argument. Thus, this petition be not entertained. 4. In rejoinder submissions, Shri Lahoti urged that when earlier order was passed in Miscellaneous Criminal Case No.5352/2009, the judgment of Dashrath Rupsingh Rathod (supra), was not passed. As per this judgment, the petitioner needs to raise this objection at this stage itself otherwise if proceedings before the Court below reach to the stage of section 145 CrPC, he will be deprived from taking that objection. 5. No other point is pressed by the parties. 6. In Dashrath Rupsingh Rathod (supra), the apex Court revisited earlier judgments including the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan [ (1999)7 SCC 510 ]. The apex Court opined as under :- “Experience has shown that the view taken in K. Bhaskaran case permitting prosecution at any one of the five different places indicated therein has failed not only to meet the approval of other Benches dealing with the question but also resulted in hardship, harassment and inconvenience to the accused persons. The apex Court opined as under :- “Experience has shown that the view taken in K. Bhaskaran case permitting prosecution at any one of the five different places indicated therein has failed not only to meet the approval of other Benches dealing with the question but also resulted in hardship, harassment and inconvenience to the accused persons. While anyone issuing a cheque is and ought to be made responsible if the same is dishonoured despite compliance with the provisions stipulated in the proviso to section 138 of the NI Act, the Court ought to avoid an interpretation that can be used as an instrument of oppression by one of the parties. The unilateral acts of a complainant in presenting a cheque at a place of his choice or issuing a notice for payment of the dishonoured amount cannot arm the complainant with the power to choose the place of trial.” In para 59 of the judgment, it was held that “section 138 not necessarily because the offence is committed in such cities but because multinational and other companies and commercial entities and agencies choose these places for filing the complaints for no better reason than the fact that notices demanding payment of cheque amounts were issued from such cities or the cheques were deposited for collection in their banks in those cities.” 7. It is seen that the apex Court has drawn the curtains on the question of territorial jurisdiction in the case of Dashrath Rupsingh Rathod (supra). If despite that, the impugned proceedings are permitted to continue in a Court which does not have jurisdiction, it will be a travesty of justice. On technical ground, such permission cannot be granted. I also find force in the argument of Shri Lahoti that if at this stage, this objection is not decided, the petitioner will be deprived to take this objection at later stage. 8. In view of aforesaid, the technical objection by the other side is overruled. Since cheque was drawn and dishonoured at Lalitpur, the Court at Vidisha has no jurisdiction to entertain the complaint. 9. Admittedly, the proceedings before the Court below did not reach to the stage of section 145 CrPC or beyond. Thus, in view of judgment of Dashrath Rupsingh Rathod (supra), the Court below is directed to return the complaint to the complainant for filing it in proper Court. 9. Admittedly, the proceedings before the Court below did not reach to the stage of section 145 CrPC or beyond. Thus, in view of judgment of Dashrath Rupsingh Rathod (supra), the Court below is directed to return the complaint to the complainant for filing it in proper Court. If such complaint is filed within 30 days of its return, it shall be deemed to be filed within the time prescribed by law unless the initial or prior filing itself was time barred. The impugned order dated 3.12.2012 passed in Criminal Case No.3082/2006 is set aside. 10. Petition is allowed. .........