Gujarat High Court
Babubhai Shanabhai Patel vs State Of Gujarat on 23 September, 2021
Bench: Gita Gopi
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 19836 of 2013
With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING) NO.
1 of 2020
In R/CRIMINAL MISC.APPLICATION NO. 19836 of 2013
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BABUBHAI SHANABHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
MR ANKUR Y OZA(2821) for the Respondent(s) No. 2
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/09/2021
ORAL ORDER
1. Criminal Misc. Application No. 1 of 2020 for early hearing
of the main matter is allowed. With the consent of the parties,
the main matter i.e. Criminal Misc. Application No.19836 of
2013 is taken up for final hearing today itself.
2. The prayer is made to quash and set aside the order dated
12.10.2013 passed by the learned 8 th Additional Senior Civil
Judge & Additional Judicial Magistrate First Class, Anand, in
Criminal Case No. 3634 of 2013 where the process was issued
against the petitioner.
3. The case was filed under Section 138 of the Negotiable
Instruments Act, 1881, (for short "N.I.Act"). The respondent
No.2 - complainant had issued notice on 05.09.2013 upon the
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
petitioner alleging that a sum of Rs.2,35,700/- was given by
the respondent No.2 to the petitioner for payment of premium
in respect of the land bearing Revenue Survey No. 149/B
situated at Borsad which was jointly owned by the petitioner
and the nephews of the petitioner. The respondent No.2 had
issued two cheques bearing No. 021440 for Rs.11,75,850/-
and another cheque bearing No.021421 for Rs.11,75,850/-; the
total amount Rs.23,51,700/-. It was stated that the petitioner
and his nephew had assured that the said amount would be
repaid within the period of two months, and inspite of lapse of
three months, the said money was not repaid; thus the
respondent No.2 had demanded the money from the
petitioner. Pursuant thereto the petitioner issued a cheque of
Rs.23,51,700/- vide cheque bearing No.000042 dated
08.08.2013 drawn on Bank of Baroda, Borsad Branch.
3.1 On depositing the said cheque by the respondent No.2 on
08.08.2013 in his bank account at the Bank of Baroda, Borsad
Branch; it came to be returned unpaid with an endorsement
"fund insufficient and payment stopped by the drawer". It is
stated that the respondent No.2 thereafter issued legal notice
to the petitioner on 05.09.2013.
3.2 The challenge to the process of issuance of summons
dated 12.10.2013 is given on the ground that the very
pendency of the criminal proceedings before the court at
Anand is bad in law, illegal and without jurisdiction. It is
stated that the petitioner had issued the cheque drawn on
Bank of Baroda at Borsad Branch on 08.08.2013. The
petitioner resides at Borsad and the respondent No.2 stated
that the issuance of cheque was at Borsad and the offence is
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
said to have been committed at Borsad; the criminal
proceedings before the trial court as Criminal Case No. 3634
of 2013 was filed on the ground that the notice was given by
the learned advocate of Anand, and therefore, it was stated
that the court at Anand had a jurisdiction to try the case.
4. Mr. Mangukiya, learned advocate for the petitioner
submitted that the petitioner and the respondent No.2 i.e. the
complainant and the accused both are resident of Borsad; the
cheque came to be dishonoured at the place at Borsad, and
therefore, he submitted that the competent court at Borsad
had a jurisdiction to try the case.
4.1 Learned advocate for the petitioner has relied on the
judgment of K. Bhaskaran v. Sankaran Vaidhyan Balan
and another reported in [(1999) 7 SCC 510] wherein
reliance has been placed on the following terms:
"The offence under Section 138 of the Act can be
completed only with the concatenation of a number of
acts. Following are the acts which are components of the
said offence : (1) Drawing of the cheque, (2)
Presentation of the cheque to the bank, (3) Returning
the cheque unpaid by the drawee bank, (4) Giving notice
in writing to the drawer of the cheque demanding
payment of the cheque amount, (5) failure of the drawer
to make payment within 15 days of the receipt of the
notice.
It is not necessary that all the above five acts should
have been perpetrated at the same locality. It is possible
that each of those five acts could be done at 5 different
localities. But concatenation of all the above five is a
sine qua non for the completion of the offence under
Section 138 of the Code. In this context a reference to
Section 178(d) of the Code is useful. It is extracted below
:
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
"178(a) - (c) xxx xxx xxx xxx
(d) where the offence consists of several acts done in
different local areas, it may be inquired into or tried by a
Court having jurisdiction over any of such local areas."
Thus it is clear, if the five different acts were done in five
different localities any one of the courts exercising
jurisdiction in one of the five local areas can become the
place of trial for the offence under Section 138 of the
Act. In other words, the complainant can choose any one
of those courts having jurisdiction over any one of the
local areas within the territorial limits of which any one
of those five acts was done. As the amplitude stands so
widened and so expensive."
5. Countering the argument, learned advocate Mr. Ankur
Oza for the respondent No.2 submitted that the case of K.
Bhaskaran (supra) was taken into consideration while deciding
the issue involved in Dashrath Rupsingh Rathod v. State
of Maharashtra and another reported in [(2014) 9 SCC
129]. Learned advocate for the respondent relying on para 22
of the judgment of Dashrath Rupsingh Rathod (supra)
submitted that the right recourse at this stage would be to
return the complaint to the complainant with the liberty to
present before the competent court in accordance to the
directions given in Dashrath Rupsingh Rathod (supra). He has
relied upon para 22 of the said judgment which reads as
under:
"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
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
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 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."
5.1 Learned advocate for the respondent further stated that
the complaint before the court at Anand is of the year 2013 and
the amendment under Section 142A has come into force on
15.06.2015. Thus citing the said provision, learned advocate Mr.
Ankur Oza has submitted that the deemed transfer is to be
considered in the matter and the benefit of provisions of Section
142A should be accorded to the respondent who is the original
complainant before the court at Anand.
6. The object and the reasons for the amendment was
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
proposed, as Sections 138 to 142 of the said Act were found
deficient in dealing with dishonour of cheques. The amended
Sections 138, 141 and 142 and inserted new Sections 143 to
147 in the said Act aimed at speedy disposal of cases relating
to the offence of dishonour of cheques through their summary
trial as well as making them compoundable. Dashrath
Rupsingh Rathod (supra) judgment was observed on the
premise that the territorial jurisdiction for cases relating to
offence of dishonour of cheques is restricted to the court within
whose local jurisdiction such offence was committed, which, in
the present context, is where the cheque is dishonoured by the
bank on which it is drawn. The Supreme Court has directed that
only in those cases where post the summoning and appearance
of the alleged accused and the recording of evidence has
commenced as envisaged in Section 145(2) of the said Act,
proceeding will continue at that place. All other complaints
(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 exposition of the law, as
determined by the Supreme Court.
7. Pursuant to the judgment of the Supreme Court,
representations have been made to the Central Government by
various stakeholders, including industry associations and
financial institutions, expressing concerns about the wide
impact of this judgment would have on the business interests as
it will offer undue protection to defaulters at the expense of the
aggrieved complainant; will give a complete go-by to the
practice/concept of `Payable at Par cheques' and would ignore
the current realities of cheque clearing with the introduction of
CTS (Cheque Truncation System) where cheque clearance
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
happens only through scanned image in electronic form and
cheques are not physically required to be presented to the
issuing branch (drawee bank branch) but are settled between
the service branches of the drawee and payee banks; will give
rise to multiplicity of cases covering several cheques drawn on
bank(s) at different places and adhering to it is impracticable for
a single window agency with customers spread all over India.
Thus in this premise the amendment was proposed and Section
142A of N.I.Act found validation for transfer of pending cases.
The present matter does not fall in any of the consideration that
was raised before the court while it was considering the matter
at issue in Dashrath Rupsingh Rathod (supra) and K. Bhaskaran
v. Sankaran Vaidhyan Balan and another (supra) dealt with. The
order of process of summons has been challenged on absolutely
different ground. The complaint was filed at a place where
stating that the court at Anand would have jurisdiction as the
notice was issued by learned advocate of Anand. The said
ground invoking the jurisdiction has no application under the
provisions of Section 138 of N.I.Act, even if the subsequent
provisions under Section 142 of N.I.Act deals with the
cognizance of the offence which reads as under:
"Sec.142 Cognizance of offences. --
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)--
(a) no court shall take cognizance of any offence
punishable under section 138 except upon a
complaint, in writing, made by the payee or, as the
case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the
date on which the cause of action arises under clause
(c) of the proviso to section 138:
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
[Provided that the cognizance of a complaint may
be taken by the Court after the prescribed period, if
the complainant satisfies the Court that he had
sufficient cause for not making a complaint within such
period.]
(c) no court inferior to that of a Metropolitan Magistrate
or a Judicial Magistrate of the first class shall try any
offence punishable under section 138].
(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 purposes 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."
8. Thus the offence under Section 138 shall be inquired into
and tried only by a court within whose local jurisdiction 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 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, but
the explanation to sub-sec.(2) further clarifies the place of
jurisdiction for entertaining the application. Thus, in view of the
R/CR.MA/19836/2013 ORDER DATED: 23/09/2021
aforesaid provisions of law, the complaint dated 12.10.2013 in
Criminal Case No. 3634 of 2013 is not maintainable at the court
at Anand, since there is no such provisions in law for the court
to take cognizance of an offence at a place where the office of
the advocate of the complainant is situated where the legal
notice has been issued. The prayer of learned advocate Mr. Oza
for the respondent for returning the complaint back could not be
entertained since the criminal complaint has been lodged at a
place which does not even have any jurisdiction to entertain the
same in accordance to even by law that stood prior to the
amendment of Section 142. The case of the complainant does
not fall in any other criteria considered in Dashrath Rupsingh
Rathod (supra) and K. Bhaskaran v. Sankaran Vaidhyan Balan
and another (supra), and by way of amendment under Section
142, even otherwise, the criminal complaint cannot be returned
back as it has been filed in the jurisdiction which has no
connection to the dispute between the complainant and the
accused. Section 142A of N.I.Act deals with for transfer of
pending cases only, if the case falls under sub-sec.(2) of
Section 142 as amended, and in those cases only, shall be
deemed to have been transferred.
9. Thus in view of the observations made hereinabove, the
present petition is allowed. The impugned order dated
12.10.2013 passed by the learned 8th Additional Senior Civil
Judge & Additional Judicial Magistrate First Class, Anand, in
Criminal Case No. 3634 of 2013 is quashed and set aside.
(GITA GOPI,J)
A.M.A. SAIYED
