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2018 DIGILAW 37 (KER)

Abdul Azeez P. v. State of Kerala

2018-01-10

MARY JOSEPH

body2018
ORDER : Mary Joseph, J. Petition filed under Section 482 Cr.P.C., 1973. 2. In this petition, the complainant seeks to quash the order passed by the Judicial First Class Magistrate's Court-Il (Forest Offences), Manjeri (for short, "the court below") in a complaint filed by him and numbered as ST Case No. 133/2014 by which the complaint lodged by him was returned for presentation before the proper court within a period of one month from the date of return for the reason that, the court has no jurisdiction to try the same in view of the dictum rendered by the apex court in Dashrath Rupsingh Rathod v. State of Maharashtra & another [2014 (3) R.C.R. (Criminal) 904 : (2014) 9 SCC 129 ]. 3. The complaint was lodged by the complainant, the petitioner herein before the court below seeking to prosecute the accused for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act'). The complaint was taken cognizance of by the court below and numbered as ST Case No. 133/2014. The allegation in the complaint was that the cheque for a sum of Rs. 1,25,000/- drawn on Cudallur Branch of IDBI Bank and issued by the accused to the complainant in discharge of a legally enforceable debt, was bounced by the bank for the reason of insufficiency of funds in the account maintained by the accused with the Bank. After complying with the statutory formalities of issuance of notice and within the statutorily provided time, the complaint was preferred, the copy of which is appended with this petition as Annexure A. At the relevant time when the complaint was presented, the apex court has rendered Dashrath Rupsingh's case (supra), wherein it was held that the territorial jurisdiction in the matter of a complaint lodged under section 138 of the N.I. Act is restricted to the court within whose local jurisdiction the offence was committed, i.e., where the cheque is dishonoured by the Bank on which it is drawn. The dictum in the case reads as follows: "21. The interpretation of section 138 of the N.I. 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 dictum in the case reads as follows: "21. The interpretation of section 138 of the N.I. 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 statutory 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 N.I. 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., 1973 and therefore the place or sites 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." 4. The court below passed Annexure B order on 23.10.2014 in ST Case No. 133/2014 holding that it has no jurisdiction to try the complaint on the basis of the dictum of the Apex Court extracted herein above and accordingly returned the complaint to the complainant for presentation before the proper court within one month from the date of return. 5. According to the learned counsel for the petitioner, by Negotiable Instruments (Amendment) Act, 2015 [Act 26 of 2015] sub-section (2) was brought under section 142 of the N.I. Act. By the very same Amendment Act, a new provision as Section 142-A was also brought into the N.I. Act, 1881. The amendments were brought into force with effect from 15.06.2015. 5. According to the learned counsel for the petitioner, by Negotiable Instruments (Amendment) Act, 2015 [Act 26 of 2015] sub-section (2) was brought under section 142 of the N.I. Act. By the very same Amendment Act, a new provision as Section 142-A was also brought into the N.I. Act, 1881. The amendments were brought into force with effect from 15.06.2015. It is contended by the learned counsel that in view of the newly introduced sub-section (2) of Section 142 and Section 142-A, Annexure B order will have no effect at all and therefore, the same needs to be quashed and the complaint numbered as ST Case No. 133/2014 needs to be restored into the files of the court below for trial to be held. 6. In the backdrop of the contention raised by the learned counsel, the newly incorporated sub-section (2) of Section 142 and Section 142-A, have to be dealt with. It is apposite to have extracted the provisions hereunder. Sub-section (2) of Section 142 reads: "142. (1) xx xx xx (a) xx xx xx (b) xx xx xx (c) xx xx xx (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.- For the purpose of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account." Section 142-A reads: "142-A. Validation for transfer of pending cases.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or directions of any court, all cases transferred to the court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (6 of 2015), shall be deemed to have been transferred under this Ordinance, as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub-section (2) of Section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of Section 142 or the case has been transferred to that court under sub-section (1), and such complaint is pending in that court, all subsequent complaints arising out of Section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of this Ordinance, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that sub-section had been in force at all material times." 7. In view of the non obstinate clause contained in Section 142-A, the provision gained overriding effect on any provisions of Cr.P.C. dealing with territorial jurisdiction or any judgment, decree, order or direction of any court, wherein any finding on territorial jurisdiction has been made by any court of law. In view of the newly incorporated sub-section (2), the offence under Section 138 shall be enquired into and tried by a court within whose local jurisdiction, the cheque is delivered for collection through an account, the branch of the Bank wherein the payee or holder in due course maintains the account is situated or if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account is situated. 8. Thus, with the introduction of sub-section (2), the territorial jurisdiction restricted by the Apex Court vide judgment in Dashrath Rupsingh's case (supra), has been widened. Section 142-A provides that all cases transferred prior to introduction of sub-section (2) to section 142 of the N.I. Act shall be deemed to be transfers effected as if sub-section (2) had been there in the Act at the material time of those transfers, provided the courts to which those had been transferred, would come within the purview of the territorial jurisdictional limits as specified under sub-section (2) of Section 142. 9. As already stated by Annexure B order ST Case No. 133/2014 filed before the court below has been directed to be returned for presentation before the court having jurisdiction on the basis of the dictum laid down by the Apex Court in Dashrath Rupsingh's case (supra). In view of the amendment brought into the N.I. Act in the year 2015, Dashrath Rupsingh's case (supra) has been statutorily superseded. Therefore, in view of the non obstinate clause in Section 142-A, Annexure B order is also liable to be superseded by the newly introduced provisions in the Act by way of amendment. 10. In view of the amendment brought into the N.I. Act in the year 2015, Dashrath Rupsingh's case (supra) has been statutorily superseded. Therefore, in view of the non obstinate clause in Section 142-A, Annexure B order is also liable to be superseded by the newly introduced provisions in the Act by way of amendment. 10. The learned counsel has also invited my attention to Bridgestone India Private Limited v. Inderpal Singh, 2016 (3) R.C.R. (Criminal) 171 : (2016) 1 KLT 845 ] to contend that sub-section (2) of Section 142 has been given effect to by the legislature to all transfers effected prior to its introduction as if sub-section (2) was there in the Act at the material time of such transfers. It is contended by the learned counsel that in view of the decision cited supra, the benefit of the newly incorporated sub-section (2) of 142 would be made applicable to all transfers effected prior to, provided those, would fit within the territorial limits introduced by sub-section (2) of Section 142 as if the said provision was then in prevalence. The relevant part of the decision cited supra is also extracted hereunder for convenient reference: "14. It is, however, imperative for the present controversy, that the appellant overcome the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect to the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142-A was inserted into the Negotiable Instruments Act. A perusal of sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non obstinate clause in sub-section (1) of Section 142-A. Likewise, any judgment, decree, order or direction issued by a court would have no effect insofar as the territorial jurisdiction for initiating proceedings under section 138 of the Negotiable Instruments Act 'is concerned. In the above view of the matter, we are satisfied that the judgment rendered by this Court in Dashrath Rupsingh Rathod case would also not non-suit the appellant for the relief claimed. 15. In the above view of the matter, we are satisfied that the judgment rendered by this Court in Dashrath Rupsingh Rathod case would also not non-suit the appellant for the relief claimed. 15. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under section 138 of the Negotiable Instruments Act, inter alia, in the territorial jurisdiction of the court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142-a(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod case, would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in the present case arises." 11. Therefore, it is clear from the amended provisions extracted hereinabove and the dictum of the Apex Court in Bridgestone India Private Limiters case (supra) that Annexure B order is without any force in so far as the territorial jurisdiction for initiating proceedings under section 138 of the Negotiable Instruments Act is concerned. The judgment rendered by the Apex Court in Dashrath Rupsingh's case (supra) would not non-suit the petitioner in view of the amendment brought in the N.I. Act in the year 2015. Annexure B order was passed by the court below on the strength of the dictum in Dashrath Rupsingh's case (supra), which has been superseded by the provisions newly introduced into the N.I. Act by way of amendment in the year 2015. In view of the amended provisions in the N.I. Act, the Judicial First Class Magistrate's Court-II (F.O.), Manjeri is not devoid of jurisdiction to try the complaint preferred by the complainant as ST Case No. 133/2014. In the circumstances Annexure B order will not sustain and is only liable to be quashed. 12. In the result, this Crl.M.C. stands allowed. Annexure B order passed by the court below stands quashed forthwith. The court below has every jurisdiction to try the complaint and accordingly, directed to restore the same into file and to proceed with the trial of the case. 13. 12. In the result, this Crl.M.C. stands allowed. Annexure B order passed by the court below stands quashed forthwith. The court below has every jurisdiction to try the complaint and accordingly, directed to restore the same into file and to proceed with the trial of the case. 13. Since the complaint being related to the year 2014, the court below is directed to try ST Case No. 133/2014 and dispose it within two months from the date of receipt of a copy of this order.