Smt. Gouri W/O G. Raju vs Devan Housing Finance
2021 Latest Caselaw 5882 Kant

                            1




        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH
                       TH
                                                      R
   DATED THIS THE 10        DAY OF DECEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

              CRL.RP.No.200005/2014

BETWEEN:

SMT. GOURI W/O G. RAJA
AGE: 52 YEARS, OCC: TEACHER
R/O C/O C.A. SWAMI
SECTOR NO.14, PLOT NO.58
NAVA NAGAR
BAGALKOT
                                       ... PETITIONER
(BY SRI R.S.LAGALI, ADVOCATE)

AND:

DEVAN HOUSING FINANCE
CORPORATION LTD., (DHFL)
REP. BY SHRI. SHIVARADDI
S/O HANAMAARADDI BENTUR
AGE:33 YRS, OCC. BRANCH INCHARGE
POWER OF ATTORNEY HOLDER OF
DEVAN HOUSING FINANCE CORPORATION LTD.,(DHFL)
S1 TO S6, 2ND FLOOR
MAHALAXMI COMPLEX
OPP. MADHALA MARUTI TEMPLE
MG ROAD, BIJAPUR

                                      ... RESPONDENT

(BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE)
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       THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION       397   READ    WITH      SECTION    401    OF   CRIMINAL
PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 10.12.2013 PASSED IN
CRIMINAL APPEAL NO.29/2013 BY THE PRINCIPAL SESSIONS
JUDGE, BIJAPUR THEREBY CONFIRMING THE JUDGMENT AND
ORDER OF CONVICTION DATED 16.04.2013 PASSED BY THE
JMFC-I COURT, BIJAPUR IN CRIMINAL CASE NO.431/2012 AND
CONSEQUENTLY ACQUIT THE PETITIONER/ACCUSED.


       THIS PETITION HAVING BEEN HEARD ON 17.11.2021
AND        RESERVED       FOR    ORDERS,        COMING       ON   FOR
PRONOUNCEMENT         THIS      DAY,    THE     COURT    MADE     THE
FOLLOWING:
                                ORDER

This revision petition is filed challenging the

judgment and order of conviction dated 10.12.2013 passed

in Criminal Appeal No.29/2013 by the Principal Sessions

Judge, Bijapur thereby confirming the judgment and order

of conviction dated 16.04.2013 passed by the JMFC-I

Court, Bijapur in Criminal Case No.431/2012 and prayed

this Court to acquit the petitioner/accused.

2. The factual matrix of the case is that the

complainant is the public limited company dealing in

housing finance. The complainant-Company has filed a

private complaint under section 200 of Cr.P.C., for the

offence punishable under Section 138 of Negotiable

Instruments Act (hereinafter for brevity referred as 'the NI

Act') against the accused-petitioner herein alleging that

the accused had availed the housing loan of Rs.1,70,000/-

under LC No.B0001484 after executing loan agreement,

demand promissory note and other documents in favour of

the complainant agreeing to pay the said loan in equated

monthly installments and the said loan was sanctioned on

05.08.2003. The accused did not pay the amount within

the period and became defaulter. He was due for a sum of

Rs.2,67,054/- and for the said amount, the accused had

issued a cheque dated 18.05.2011 drawn on Corporation

Bank, Branch Bagalkot. When the complainant presented

the cheque, the same was returned with an endorsement

'funds insufficient'. The complainant has informed the said

fact to the accused by issuing legal notice dated

02.06.2011 and demanded to pay Rs.2,67,054/- and the

said notice was duly served on 04.06.2011, but the

accused failed to repay the amount. Hence, the complaint

was filed under section 200 of Cr.P.C. The trial Court after

considering the material on record, taken cognizance and

secured the accused and accused did not plead guilty and

claimed for trial. The complainant in order to prove its

case, examined one witness as P.W.1 and got marked

documents at Exs.P.1 to 10. The accused was examined

to give statement under section 313 of Cr.P.C., and

accused denied the incriminating evidence but not led any

defence evidence. The trial Court after considering both

oral and documentary evidence convicted the accused and

sentenced to pay an amount of Rs.2,97,000/- Being

aggrieved by the said judgment of conviction and order of

payment of fine, the appeal is filed before the Principal

Sessions Judge and the same is numbered as Criminal

Appeal No.29/2013. The appellate Court also on

re-appreciation of both oral and documentary evidence

confirmed the judgment of the trial Court. Hence, the

present revision petition is filed by the accused.

3. In this revision petition, the accused/revision

petitioner's main contention is that both the Courts have

committed an error in convicting the accused and

sentencing her to pay fine amount. The learned counsel

appearing for the petitioner would vehemently contend

that both the trial Court and appellate Court at Bijapur did

not have the territorial jurisdiction to try the case. It is

contended that the respondent Bank has branch at

Bagalkot and further it is not in dispute that the main loan

transaction has taken place at Bagalkot. The petitioner

has issued the cheque drawn on Corporation Bank,

Bagalkot Branch. Only fact that demand notice of dishonor

was issued from Bijapur would not give jurisdiction to the

trial Court at Bijapur. It is contended that the Court

derives jurisdiction only when the cause of action arose

within its jurisdiction. The same cannot be conferred by

any act of omission or commission on the part of the

accused. It is contended that distinction must be borne in

mind between the ingredients of an offence and

commission of a part of the offence. Hence, on that count

itself, the impugned judgment of conviction and sentence

requires interference by this Court. The learned counsel

would also submit that on perusal of evidence of

P.W.1/complainant, it is clear that he has admitted in his

cross-examination regarding filing of the contents of the

cheque except the signature and further there is an

admission regarding change of ink. It is the specific

defence of the petitioner that while she was availing the

loan, the respondent has collected 21 signed cheque

leaves from the petitioner. In the light of the admissions

regarding the contents of cheque and change of ink, the

defence of the petitioner appears to be more probable and

these are the aspects not considered by the trial Court as

well as appellate Court. It is also the contention that the

cheque in question has been materially altered by the

respondent company without the express or implied

consent of the petitioner, the cheque only bears the

signature of the petitioner and rest of the contents namely

the amount has been filled by the respondent. It is

contended that the cheque in question never issued

towards legally enforceable debt. The trial Court ought to

have accepted the defence taken by the accused which is

reasonably appears to be probable and both the courts

have failed to take note of the said fact. The learned

counsel also would vehemently contend that both the

courts have failed to take note of the jurisdiction of the

Court as well as merits of the case and hence, it requires

interference by exercising revisional power.

4. The learned counsel in support of his argument

has relied upon the judgment of Hon'ble Apex Court in the

case of Dashrath Rupsingh Rathod vs. State of

Maharashtra and another reported in (2014) 3 SCC

(Cri) 673, wherein the Court held that place of 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

determining territorial jurisdiction for filing of cheque

dishonour complaints.

5. Per contra, the learned counsel for the

complainant would vehemently contend that all

transactions have taken place at Bijapur and Ex.P.8 to 10

disclose that all transactions have taken place at Bijapur

and both the courts have given finding with regard to

jurisdiction also. It is also elicited in the evidence of P.W.1

that they were having only service station at Bagalkot and

not having any branch at Bagalkot. The loan availed at

Bijapur and letters are addressed to the Bijapur branch

and loan account is also maintained at Bijapur branch and

all correspondence between the complainant and this

petitioner taken place at Bijapur and cheque was also

delivered at Bijapur and apart from that cheque was also

presented at Bijapur and received the endorsement at

Bijapur that cheque was not honoured. Merely because

the petitioner herein having an account at Bagalkot cannot

confer any jurisdiction and hence, his contention cannot be

accepted.

6. Having heard the learned counsels appearing

for the petitioners and the learned counsel appearing for

the respondent-complainant, the points that arise for

consideration in this revision petition are:

a. Whether the Court in which the complaint is filed is having no jurisdiction to try the case as contended by the revisional petitioner?

    b.     Whether the Courts below have committed an
           error     in   convicting     and    sentencing     the

petitioner herein and it requires revisional jurisdiction with regard to legality and correctness of the judgment of respective courts?

    c.     What order?


Point No.1

7. Having heard the learned counsel for the

revisional petitioner and also counsel appearing for

respondent/complainant it is not in dispute that the

complaint is filed before Bijapur Court and on perusal of

the complaint, it is evident that a specific averment is

made regarding transaction between the complainant and

the petitioner herein. In the complaint, a specific averment

is made that petitioner herein has approached to the

complainant for financial assistance and availed the

housing loan by executing the loan document and hence,

loan was sanctioned on 05.08.2003. But he failed to repay

the amount and complaint averment is specific that in

order to repay the amount, he has issued the cheque

belonging to Corporation Bank, Bagalkot branch and the

said cheque was dishonoured. The complainant in order to

substantiate his contention that having availing the loan

produced the documents Ex.P.1 to 10. Before considering

the grounds urged in this revision petition, this Court

would like to refer the documents which have been

marked. Ex.P.1 is the subject matter i.e., cheque in

question. Ex.P.2 is the endorsement issued by the

Corporation Bank, Bagalkot branch. Ex.P.3 is the legal

notice issued through an advocate of Bijapur. Exs.P.4 and

P.5 are postal receipt and postal acknowledgment. Ex.P.6

is the power of attorney. Ex.P.7 is the reply given by the

accused to the counsel of the complainant. Ex.P.8 is the

complainants' housing finance corporation limited account

with loan account is maintained at Bijapur. The bank

statement is clear that an amount of Rs.2,67,054/- was

due. Ex.P.9 is the document of loan application given by

the accused/petitioner herein addressing the said letter to

the Bijapur branch. Ex.P.10 is the letter addressed to the

Branch Manager, Bijapur Branch by revisional petitioner

herein seeking time to repay the loan amount.

8. Having considered these documents, it is clear

that the complainant is having a branch at Bijapur and the

revisional petitioner by giving application to the branch at

Bijapur had availed the loan from Bijapur branch and also

letter is addressed seeking repayment of loan to the

Bijapur address and all transactions were taken place at

Bijapur, except the cheque which pertains to the Bagalkot

branch. It is also specific in the complaint averment that

when the cheque was presented in the bank of

complainant, the same was returned with an endorsement

of the payer bank in terms of Ex.P.2. Having taken note of

all these material available on record when all the

transactions have taken place at Bijapur i.e., application

was given to the Bijapur branch, loan was availed from

Bijapur branch and loan application was also given to the

Bijapur branch and letter was addressed to the Bijapur

branch seeking further time to pay the balance amount

Exs.P.8 to P.10 substantiate that the transactions were

taken place at Bijapur only. It is also not in dispute that

the cheque was delivered at Bijapur and also presented

from the bank of complainant and endorsement was issued

in terms of Ex.P.2 communicating the same to the Axis

Bank wherein, the cheque was presented i.e., at Bijapur.

When such being the case, the very contention of the

revisional petitioner cannot be accepted. The judgment of

Hon'ble Apex Court in the case of Dasharath Rupsingh

Rathod referred supra relied upon by the petitioner's

counsel is not applicable to the facts on hand in view of all

transactions were taken place in Bijapur. Apart from this,

the Court would also like to refer the provisions of the NI

Act i.e., under section 142 (as amended by II Ordinance

2015) and also under section 142A (as inserted by II

ordinance, 2015). This Court would like to refer the

judgment of the Hon'ble Apex Court in the case of

Bridgestone India Private Limited vs. Inderpal Singh

reported in 2016 (1) AKR 207, wherein the Hon'ble Apex

Court discussed the earlier judgment passed by the said

Court in Dashrath Rupsingh Rathod's case which I have

referred above. Referring the said judgment, the Hon'ble

Apex Court in Bridgestone India Private Limited case

observed that in view of effect of amendment of section

142 and insertion of section 142A(1) vide 2015 II

Ordinance, the Court held that the courts at places where

the cheque is delivered for collection has territorial

jurisdiction entertaining the complaint also section

142(a)(i) gives retrospectivity to the provision. The

Hon'ble Apex Court in this judgment discussed section 177

of Cr.P.C., as discussed in Dasharath Rupsingh

Rathod's case and having considered the amendment

particularly the paragraph Nos.58 to 58.7 of Dashrath

Rupsingh Rathod's case supra and extracting section

142 of NI Act i.e., in the principal Act and also insertion of

Sections 1 and 2 in respect of section 142 and so also

explanation and also section 142(A) in detail discussed in

paragraph Nos.11, 12, 13, which I would like to extract as

follows:

"11. It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A 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-obstante clause in sub-section (1) of

Section 142A. 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's case would also not non-suit the appellant for the relief claimed.

12. 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 142A(1) to the effect, that the judgment rendered by this

Court in Dashrath Rupsingh Rathod's case, would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises.

13. Since cheque No.1950, in the sum of Rs.26,958/-, drawn on the Union Bank of India, Chandigarh, dated 02.05.2006, was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the appellant on 04.08.2006, we are of the view that the Judicial Magistrate, First Class, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881, after the promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015. The words "...as if that sub-section had been in force at all material times..." used with reference to Section 142(2), in Section 142A(1) gives retrospectivity to the provision."

9. The Hon'ble Apex Court in this judgment has

categorically held that it is imperative for the present

controversy, that the appellant overcomes the legal

position declared by this Court, as well as, the provisions

of the Code of Criminal Procedure and also a reference was

made to Section 4 of the Negotiable Instruments

(Amendment) Second Ordinance, 2015, whereby Section

142A was inserted into the Negotiable Instruments Act as

proviso and comes to the conclusion that in view of the

said amendment 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. Whether cheque is delivered for collection

(through the account of the branch of the bank where

payee or holder in due course maintains an account). It is

also held that based on section 142(1)(a) to the effect that

the judgment rendered by the Hon'ble Apex Court in

Dashrath Rupsingh Rathod's case, would not stand in the

way of the appellant. Insofar as territorial jurisdiction for

initiating proceedings emerges from the dishonor of the

cheque in the present case.

10. Having taken note of the principles laid down

in the judgments and also considering the facts and

circumstances of the case and as I have already pointed

out that all transactions were taken place at Bijapur i.e.,

giving application for loan to the branch of Bijapur, loan

was availed from Bijapur, and bank loan account was also

maintained in the bank of Bijapur and letters are also

addressed by the revisional petitioner to the Bijapur

branch and cheque was also delivered for collection

through the account of the branch of the bank where payer

availed the loan and payee also having the branch at

Bijapur and also holder in due course maintains account at

Bijapur, the very contention of the learned counsel for the

petitioner that the Court at Bijapur is not having

jurisdiction cannot be accepted. This Court also

subsequent to the judgment in the case of Bridgestone

India Private Limited referring the said judgment and

also referring the judgment in the case of Dashrath

Rupsingh Rathod's considering the issue involved with

regard to the jurisdiction, in the judgment of Gopal

Krishna S/o Srinivasa vs. Abdul Bakai S/o Hussain

Basha reported in 2019 (4) KLJ 401, discussed the

scope of section 138, 142, 142-A of the NI Act and also

scope of section 397 and 401 of Cr.P.C., and held that

place of territorial jurisdiction of the Court to try the said

offence and also taken note of effect of amended

provisions and applicability of the said amendment came

to the conclusion that proviso and Amendment Act of 2015

is aptly applicable and the very contention of respondent in

that case that both of them were residing at Sandur and

cheque is presented at Hospet is not acceptable. This

Court having considered the principles enunciated in

Bridgestone India Private Limited case ordered to

present the cheque at Hospet. In the case on hand also,

having considered the amended provisions as well as the

principles laid down in the judgment referred supra

particularly in Bridgestone India Private Limited, the

very contention of the revisional petitioner that Court at

Bijapur is not having jurisdiction cannot be accepted. The

proviso of section 142(2) is very clear that 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 and also explanation is clear that where a cheque

is delivered for collection at any branch of the bank of

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. When such amendment

was brought in 2015 and inserted section 142(2) of the NI

Act, the very contention of the petitioner that the Bijapur

Court is not having jurisdiction to try the complaint filed

for the offence under section 138 of NI Act, cannot be

accepted.

11. I have already pointed out that all transactions

have taken place at Bijapur and loan was availed at

Bijapur and loan application was given at Bijapur,

correspondences were made at Bijapur and cheque was

delivered at Bijapur and loan account was maintained by

the payee at Bijapur, no doubt, the learned counsel for the

petitioner brought to the notice of this Court the answer

elicited in the mouth of P.W.1 regarding having the service

branch at Bagalkot, but it is clear that they were having

only this service center at Bagalkot and he categorically

admits that they were not having any branch at Bagalkot

and only one officer by name Nagaraj Pattar is incharge

officer at Bagalkot. No doubt, the accused is residing at

Bagalkot and the same will not confer any jurisdiction and

also merely because the accused is having Corporation

Bank account at Bagalkot, the same will not confer any

jurisdiction.

12. P.W.1 also categorically given admission that

cheque was presented at Bijapur Axis Bank and also

endorsement was given by the bank of the petitioner in

respect of Axis Bank in terms of Ex.P.2. It is suggested

that he has falsely deposed that cheque is presented at

Axis Bank and the same was categorically denied. Hence,

having taken note of all these materials available on

record, the very contention of the petitioner cannot be

accepted. Hence, I answer point No.1 in negative.

Point No.2

13. Regarding exercising of revisional power by the

Court is concerned, the same is also limited, the Court has

to exercise revisional power only if the judgment of

conviction and sentence which is affirmed by the appellate

Court is not in conformity with the legality and correctness

of the judgment and both the orders suffer from illegality

and correctness of the order, only then the Court can

exercise revisional jurisdiction. I do not find such illegality

committed by both the courts and having considered

Exs.P.1 to P.10 and evidence, it is not in dispute regarding

availing of loan and only contention was taken that the

contents of the cheque at Ex.P.1 signature and hand

writing made in Ex.P.1 are in different ink. The said

contention also cannot be accepted. Recently the Hon'ble

Apex Court held that once signed cheque is delivered, the

contention of the accused cannot be accepted and he has

to rebut the case of the complainant. In the case on hand,

the accused has not rebutted the evidence of complainant

by leading any defence evidence. No doubt, the accused

cross examined the witness P.W.1 to rebut his evidence by

way of cross-examination of P.W.1 and the same is also

not done with regard to transaction is concerned and the

counsel mainly has concentrated with regard to jurisdiction

while cross-examining P.W.1. When such being the facts

and circumstances of the case, I do not find any reason to

exercise revisional jurisdiction and hence, I do not find any

merit in the revision petition.

Point No.3

14. In view of the observations made above, I pass

the following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

VNR