Karnataka High Court

Sri Anil V Raiker vs Sri Abdul Munaf on 1 March, 2024

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                                     CRL.A.No.210 of 2014


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1ST DAY OF MARCH, 2024

                        BEFORE
       THE HON'BLE MR JUSTICE ANIL B KATTI
         CRIMINAL APPEAL No.210 OF 2014 (A)

BETWEEN:

SRI. ANIL V. RAIKER
S/O VISHWANATH M. RAIKER
AGED ABOUT 38 YEARS
R/O YALAKKYAPPANA KERI
2ND CROSS, GANDHI BAZAR
SHIVAMOGGA-577 201

                                              ...APPELLANT
(BY SRI.RAVINDRANATH M., ADVOCATE)

AND:

SRI.ABDUL MUNAF
S/O.SALIHA
AGED ABOUT 48 YEARS
R/O 1ST CROSS, 3RD MAIN
S.N.NAGARA
SAGARA TQ
SHIVAMOGGA DISTRICT-577 401
                                           ...RESPONDENT
(BY SRI.CHIDAMBARA G.S., ADVOCATE)

     THIS APPEAL IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION     AND    SENTENCE     DATED    23.9.2013  IN
CRL.A.120/2012 PASSED BY THE F.T.C.-II, SHIMOGA REVERSING
THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 23.5.2012 PASSED BY THE C.J. AND J.M.F.C.,
SHIKARIPURA IN C.C.NO.3432/2009 (222/2007) IN RESPECT OF
OFFENCE P/U/S 138 OF N.I. ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
21.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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                                                   CRL.A.No.210 of 2014




                            JUDGMENT

Appellant/complainant feeling aggrieved by judgment

of First Appellate Court on the file of II Addl.Sessions

Judge, Shivamogga in Crl.A.No.120/2012 dated

23.09.2013 in reversing the judgment of Trial Court on the

file of JMFC II, Shivamogga, in C.C.No.3432/2009

(222/2007) dated 23.05.2012 preferred this appeal.

2. Parties to the appeal are referred with their

ranks as assigned in the Trial Court for the sake of

convenience.

3. Heard the arguments of both sides.

4. After hearing arguments of both sides and on

perusal of Trial Court records, so also the impugned

judgment under appeal, the following points arise for

consideration:

1) Whether the impugned judgment under appeal passed by the First Appellate Court in reversing the judgment of Trial Court for the offence punishable under Section 138 of N.I.Act is perverse, capricious and legally not sustainable?

2) Whether interference of this Court is required?

5. On careful perusal of oral and documentary

evidence placed on record, it would go to show that

accused has borrowed an amount of Rs.1,30,000/- as

hand loan from the complainant on 04.01.2006 and

promised to repay the loan with interest at the rate of

18% p.a. within one month. Accused after lapse of one

month for lawful discharge of the said debt issued cheque

bearing No.0000011 dated 22.02.2006 for Rs.1,30,000/-

drawn on Karnataka Bank, Sagar Ex.P.1. Complainant

presented the said cheque for collection through his

banker Canara Bank, Rippenpete, Shivamogga on

22.02.2006 and the same was dishonoured vide bank

endorsement as "Insufficient Funds" Ex.P.2 dated

25.02.2006. Complainant issued demand notice dated

15.03.2006 through RPAD and also UCP. The postal

receipt is produced at Ex.P.4 and UCP receipt is produced

at Ex.P.5. Complainant has filed the complaint Ex.P.6 on

23.05.2006. If these documents are perused and

appreciated with the oral testimony of PW.1 then it would

go to show that complainant has complied all the

necessary legal requirements in terms of Section 118 and

139 of Negotiable Instruments, Act, 1881(hereinafter for

brevity referred to as "N.I.Act"). Complainant has filed the

complaint on 23.05.2006 within statutory period of time in

terms of Section 142(1)(b) of N.I.Act. Therefore, statutory

presumption in terms of Section 118 and 139 of N.I.Act

will have to be drawn in favour of complainant.

6. It is the defence of accused that he has taken

loan of Rs.20,000/- from the complainant in the year 2004

and he has repaid the entire loan amount with interest in

2005. Complainant has obtained blank singed cheque and

blank signed promissory note as a security for the said

loan. However, complainant even after repayment of the

entire loan amount with interest did not return the blank

signed cheque and promissory note, thereby misused the

blank signed cheque to file this false case. The transaction

according to complainant took place in Rippenpete and the

complainant is not residing in Shivamogga, further no any

cause of action accrued to the complainant in Shivamogga.

Therefore, Shivamogga Court has no territorial jurisdiction

to entertain and try the complaint.

7. The bank endorsement Ex.P.2 would go to show

that the cheque was dishonoured on two endorsements.

The first one is that "Drawer's signature differs from

specimen filed in this office" and the second one is that

"Funds Insufficient". The Trial Court for the reasons

recorded in para Nos.8 to 10 of it's judgment has held that

Shivamogga Court has jurisdiction to try the present

complaint. However, the First Appellate Court did not

record any of it's finding on the issue of territorial

jurisdiction. On the other hand the First Appellate Court

proceeded that drawer's signature differs from specimen

filed in the office assumes much importance than the

question of insufficient fund and proceeded to allow the

appeal and set aside the judgment of Trial Court,

consequently acquitted the accused for the offence

punishable under Section 138 of N.I.Act. Therefore, the

issue of territorial jurisdiction will have to be decided first.

8. According to complaint allegations, accused has

issued the cheque dated 22.02.2006 drawn on Karnataka

Bank, Sagar Ex.P.1. Complainant presented the said

cheque for collection through his banker Canara Bank,

Rippenpet, Shivamogga on 22.02.2006 and the same was

dishonoured vide bank endorsement "Insufficient Funds"

Ex.P.2. However, the demand notice dated 15.03.2006

Ex.P.3 was issued with the address of complainant from

Shivamogga. PW.1 in the cross-examination claims that he

is residing in the given address shown in the cause title of

the complaint. PW.1 admits in his cross-examination that

since last 7 to 8 years he is running jewellery shop under

the name and style as Chamundeshwary jewelers in

Rippenpete. He further admits that his house is situated

on Mashjid road Tilak Nagar of Rippenpet. The distance

between Rippenpet and Shivamogga is 40 k.m. He further

admits that accused is residing in Rippenpet. However, he

volunteers that he is also residing in Sagar. PW.1 in cross-

examination has categorically admitted that he has no any

bank account in Shivamogga. He further admits that

accused has executed promissory note for the transaction

that took place in Rippenpet. It is further elicited in the

cross-examination of PW.1 that accused is working in

Sagar and makes up and down from Rippenpet to Sagar.

9. Accused got himself examined as DW.1 and

deposed to the effect that he has issued the blank signed

cheque Ex.P.1 for the loan transaction with complainant

that took place in the year 2004 in Rippenpet.

Complainant is having house and property in Rippenpet

shown in Exs.D.3 and 4. He further deposes that he has

addressed letter to complainant on Shivamogga address

Ex.D.5 and the same was returned unserved with postal

endorsement Ex.D.5(a) as addressee is not residing in the

given address. The witness of accused DW.2 Rehamattulla

has deposed to the effect that complainant is running

jewellery shop Chamundeshwary Jewellers on Hosanagar

Road in Ahmed Beri complex. Accused had taken loan of

Rs.20,000/- from the complainant in the year 2004 and he

has repaid the entire loan amount with interest.

Complainant and accused both are residing in Rippenpet.

Learned counsel for complainant though subjected both

these witnesses to cross-examination nothing worth

material has been brought on record to discredit their

evidence. The aforementioned admissions of PW.1 during

the course of his cross-examination would go to show that

the transaction and issuance of cheque, so also the parties

residing in Rippenpet. The mere temporary residence of

complainant in Shivamogga for some time and none of the

events attracting territorial jurisdiction of Shivamogga

Court took place, so as to give raise the cause of action to

file the complaint in Shivamogga Court.

10. Learned counsel for accused has relied on the

Co-ordinate Bench Judgment of this Court in Navinabhai

Rasikal Shah Vs. Kotak Mahindra Bank Ltd. reported

in ILR 2010 Kar. 3654, wherein it has been observed

and held that it is well settled, the complainant can choose

any one of the Courts having jurisdiction over any one of

the local areas within the territorial limits of which any

one of the following acts have occurred.

      (i)      Drawing of the cheque.

      (ii)     Presentation of the cheque.
      (iii)    Returning of the cheque anybody by
               the drawer bank.
      (iv)     Giving of notice in writing to the drawer
               of the cheque due payment of the
               cheque amount.
      (v)      Failure of the drawer to make payment
               within 15 days of the receipt of the
               notice.

In the present case admittedly all these acts have

either accrued in Sagar or Rippenpet. But the complaint is

filed in the Court of Shivamogga. The said Shivamogga

Court has no territorial jurisdiction to entertain and try the

complaint. If it was a situation where one of the five Acts

narrated above did happened within the local limits or area

in which the Court is situated he would have had the

jurisdiction to entertain the matter. Now there is lack of

territorial jurisdiction only.

11. Learned counsel for accused also relied on the

judgment of Hon'ble Kerala High Court in Philipose P. M.

Vs. P. C. Chandy and Another reported in 2009 SCC

Online Ker 4260, wherein the question raised in the

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revision was the jurisdiction of the Court that the mere

fact of residence of complainant in a prosecution for the

offence punishable under Section 138 of the N.I.Act at a

particular place would confer territorial jurisdiction on the

Court within whose territorial limits that place is situated.

According to the learned counsel for

petitioner/complainant, the Court within whose territorial

limits complainant is residing has got jurisdiction to

entertain the complaint while counsel for the accused

would contend that mere fact of residence cannot confer

jurisdiction. The Hon'ble Kerala High Court has recorded

it's finding in para 20 of it's judgment as under:

"20. In a case like the instant one where no part of the transaction took place at the place of residence of the complainant and there was no stipulation that payment was to be made at the place of residence of the complainant, such mere residence of the complainant shall not confer jurisdiction on the court at the place of residence of complainant. Accused challenged the territorial jurisdiction and learned magistrate considered that question at the earliest point of time as required under law and the authorities on the point".

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The Hon'ble Kerala High Court having recorded such

finding confirmed the order of Trial Court in ordering to

return the complaint for presentation in the proper Court.

12. The aforementioned both judgments have been

referred by learned counsel for accused before the Trial

Court. However, the Trial Court holding that complainant

is temporarily residing in the given address of the

complainant at Shivamogga, as such Shivamogga Court

has got territorial jurisdiction to entertain and try the

complaint. The First Appellate Court did not record any

finding on the issue of territorial jurisdiction which goes to

the route of the case. On the contrary the First Appellate

Court proceed to allow the appeal on the first

endorsement of the Bank that "Drawer's signature differs

from the specimen filed in this office" consequently

acquitted the accused for the offence punishable under

Section 138 of N.I.Act. The finding of the Trial Court on

the issue of territorial jurisdiction cannot be legally

sustained, since none of the Acts referred above have

occurred within territorial jurisdiction of Shivamogga

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Court. The First Appellate Court did not address the issue

of territorial jurisdiction. In view of the aforementioned

judgments of this Court and Hon'ble Kerala High Court, it

is either Sagar or Rippenpet got jurisdiction to entertain

and try the complaint. Therefore, the judgment of

conviction passed by Trial Court and allowing the appeal

of accused being non est for want of territorial

jurisdiction, the same cannot be legally sustained.

Therefore, interference of this Court is required.

Consequently, proceed to pass the following:

ORDER

Appeal filed by appellant/complainant is hereby

allowed.

The judgment of First Appellate Court on the file of

II Addl.Sessions Judge, Shivamogga in Crl.A.No.120/2012

dated 23.09.2013 and the judgment of Trial Court on the

file of JMFC II, Shivamogga, in C.C.No.3432/2009

(222/2007) dated 23.05.2012 are hereby set aside.

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The learned Trial Court on the file of JMFC II

Shivamogga shall return the complaint to the complainant

for it's presentation before the proper Court.

Complainant and accused shall appear before the

Trial Court on 02.04.2024 for receiving the complaint.

The complainant may present the said complaint to

the proper Court within two weeks from the date of it's

return by the Trial Court. If it is so presented before the

proper Court within the aforesaid period, the Court to

which it is presented may entertain the same and deal it

with accordance with law holding that it's presentation is

within the period of limitation.