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2017 DIGILAW 309 (HP)

Arnab Chatterjee v. Joginder Thakur

2017-04-06

TARLOK SINGH CHAUHAN

body2017
JUDGMENT : Tarlok Singh Chauhan, J. The present petition emanates from the proceedings initiated by the complainant-respondent against the petitioner under section 138 of the Negotiable Instruments Act (for short ‘Act’) pending before the learned Additional Chief Judicial Magistrate, Theog, District Shimla, H.P. 2. During the pendency of this complaint, a three Hon’ble Judges Bench of Supreme Court in Dashrath Rupsingh Rathod vs. State of Maharashtra and another, (2014) 9 SCC 129 had with regard to place of filing of the complaint over ruled its earlier view in Shamshad Begum (Smt) vs B. Mohammed, (2008) 13 SCC 77 and partly over ruled earlier view in K. Bhaskaran vs Sankaran Vaidhyan Balan and another, (1999) 7 SCC 510 and held that the place, situs or venue of judicial inquiry and trial of the offence under section 138 of the Act must be restricted to where the drawee bank, is located. 3. It was further held that the territorial jurisdiction for filing of cheque dishonoured complaint was restricted to the Court within whose territorial jurisdiction the offence was committed, which is the location where the cheque is dishonoured, i.e. returned unpaid by the bank by which it was drawn and, therefore, place of issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment at his bank is not relevant for the purposes of determining territorial jurisdiction for filing of cheque dishonoured complaints. However, at the same time, in order to avoid hardship to the litigant, it was further directed that in case the court lacked the territorial jurisdiction then the complaints so filed should be returned to the complainants for filing the same before appropriate court, i.e. court having territorial jurisdiction. 4. Accordingly, learned Magistrate vide order dated 10.10.2014 ordered the complaint to be returned to the respondent alongwith documents and he was directed to file the complaint before the competent court. 5. Admittedly, as per the complainant, the drawer bank was situate at Lajpat Nagar and, therefore, the only court competent to try the same was the Saket Court, Delhi. However, the respondent instead of presenting the complaint which had already been filed by him and returned by the Court at Theog, filed a fresh complaint at Saket Court under sections 138, 142-B and 117 of the Act read with section 357 of the of the Code of Criminal Procedure. 6. However, the respondent instead of presenting the complaint which had already been filed by him and returned by the Court at Theog, filed a fresh complaint at Saket Court under sections 138, 142-B and 117 of the Act read with section 357 of the of the Code of Criminal Procedure. 6. There is no denying the fact that there is a substantial difference not only between the heading, facts and prayer of the complaint, but there is a substantial difference even in the pre-summoning evidence on the fresh complaint instituted by the respondent. 7. For completion of facts, it would be necessary to observe that consequent upon the amendment carried in the Negotiable Instruments Act, which virtually nullified the decision of the Hon’ble Supreme Court in Dashrath Rupsingh Rathod’s case (supra), the fresh complaint filed by the respondent at Saket Court was again transferred to the court of learned Additional Chief Judicial Magistrate, Theog and is now pending adjudication. 8. In the given circumstances, the moot question is as to whether the respondent could have instituted a fresh complaint at Saket, that too, without obtaining leave of the court. The answer obviously is in the negative. 9. Admittedly, it was only on account of the judgment rendered by the Hon’ble Supreme Court in Dashrath Rupsingh Rathod’s case (supra) that the cases were ordered to be returned to the complainants for being presented before a court having territorial jurisdiction, meaning thereby no fresh right had been created in favour of either of the party and only the place, situs or venue of the judicial inquiry and trial had been re-determined. 10. That apart, the complaint under the Act is governed and controlled by certain inherit statutory limitations including period of limitation. Therefore, the action of the respondent in amending the complaint without the leave of the court virtually amounts not only to filling up a lacuna in the complaint, but would virtually amount to playing fraud with the court. 11. However, Mr. Therefore, the action of the respondent in amending the complaint without the leave of the court virtually amounts not only to filling up a lacuna in the complaint, but would virtually amount to playing fraud with the court. 11. However, Mr. Subhash Sharma, Advocate, at this stage would vehemently contend that the Hon’ble Supreme Court in Dashrath Rupsingh Rathod’s case (supra) has clearly given an option to the complainant to re-file the complaint and would heavily bank upon the observations contained in para 22 of the judgment, which read thus: “22…………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.” 12. I am afraid that the contention of the respondent is not only fallacious but based on a complete misreading of the aforesaid judgment. The expression “filed/re-filed” does not in any manner indicate that the complaint can be re-filed after carrying out amendment, that too, without leave of the court. It was only with a view to obviate and eradicate any legal complications that the complaints including those where the respondents/accused have not been properly served were ordered to be returned to the complainant for filing in the proper court in consonance with the exposition of law laid down in Dashrath Rupsingh Rathod’s case (supra). It was in this background that the Hon’ble Supreme Court observed that in case such complaints are filed/re-filed within 30 days of the return, these shall be deemed to have been filed within the time limit prescribed by the law unless the initial or prior complaint itself was time barred. The expressions “filed/re-filed” have to be read in the context they are used and not otherwise. 13. Even otherwise, this is not the ratio of the judgment rendered by the Hon’ble Supreme Court in Dashrath Rupsingh Rathod’s case (supra). 14. The Hon’ble Supreme Court in Ambica Quarry Works v. State of Gujarat and others (1987) 1 SCC 213 has held that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn v. Leathem (1901) AC 495, it has been held that the case is only an authority for what it actually decides, and not what logically follows from it. 15. Relying on Quinn v. Leathem (1901) AC 495, it has been held that the case is only an authority for what it actually decides, and not what logically follows from it. 15. Lord Halsbury in the case of Quinn (supra) has ruled thus:- “…..there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” (Emphasis supplied) 16. In Krishena Kumar v. Union of India and others (1990) 4 SCC 207 , the Constitution Bench, while dealing with the concept of ratio decidendi, has referred to Caledonian Railway Co. v. Walker’s Trustees (1882) 7 App Cas 259 :46 LT 826 (HL) and Quinn (supra) and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows:- “The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a preexisting rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol.26, para 573) “The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal’s duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.” (Emphasis added) 17. In State of Orissa v. Mohd. Illiyas (2006) 1 SCC 275 , it has been stated by the Hon’ble Supreme Court thus:- “12……According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment.” 18. In Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697 , the Hon’ble Supreme Court has made the following observations:- “2…..The ratio decidendi of a judgment has to be found out only on reading the entire judgment. Infact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment.” 19. Further, the judgments rendered by a court are not to be read as statutes. In Union of India v. Amrit Lal Manchanda and another (2004) 3 SCC 75 , it has been stated that observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. The observations must be read in the context in which they appear to have been stated. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. 20. The Hon’ble Supreme Court in Som Mittal v. Government of Karnataka (2008) 3 SCC 574 observed that judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasizing a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation. (See: Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited AIR 2014 SC 525 ). 21. In view of the aforesaid discussion, this Court has no hesitation in concluding that the amendments carried in the complaint by the respondent herein were totally unauthorized and, therefore, the subsequent complaint filed at Saket Court is no complaint in the eyes of law. 22. Consequently, any proceedings carried on this complaint are void ab initio and without jurisdiction and are accordingly declared as such. 22. Consequently, any proceedings carried on this complaint are void ab initio and without jurisdiction and are accordingly declared as such. Since the original complaint is already on the docket of the trial Magistrate, he would restore the same to its original number and thereafter proceed with it in accordance with law from the stage when the complaint was ordered to be returned to the complainant vide order 10.10.2014. Since the complaint is pending adjudication for the last more than three years, it is expected that the learned trial Magistrate shall dispose of the same as expeditiously as possible and in no event later than 30.6.2017. 23. Petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs.