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M/s. Gnanee Business Corporation, Rep. by its Partner Shubha Kumar v/s M/s. Akshata Minerals Private Limited

    Criminal Petition No. 4035 of 2015

    Decided On, 09 September 2016

    At, High Court of Karnataka


    For the Petitioner: K.B. Monesh Kumar for R. Vijetha Naik, Advocates. For the Respondents: R1 & R2, Ravi L. Vaidya, R3, A. Hanumanthappa, Advocates.

Judgment Text

(Prayer: This Criminal Petition filed under Section 482 code of Criminal Procedure, 1973, praying to quash the order dated 30.5.2015 passed by the XL Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.17996/2013 ordering the office to return the complaint along with the original documents to be presented before the competent court within 30 days from the ate of return.)

1. Heard the learned counsel for the petitioner.

2. The present petition raises a pure question of law and hence, notwithstanding the absence of the counsel for the respondents, the matter is heard and disposed of.

3. The present petitioner was the complainant before the court below alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. It transpires that the respondents had issued certain cheques pursuant to a memorandum of understanding, in respect of a particular transaction. Those cheques when presented for encashment, had been dishonoured. Thereafter, a statutory notice was issued and since there was no payment made against the demand, a complaint was filed before the jurisdictional Magistrate. The respondents incidentally are from Hospete and the complainant is from Shimoga. Since the petitioner’s branch office was at Bangalore, it was thought fit to file the complaint in the court of the Magistrate at Bangalore. The respondents on their appearance, had raised an objection as to jurisdiction. It was urged on behalf of the complainant that filing of evidence and marking of documents are deemed to indicate the commencement of a trial in a summary trial and that the complaint therefore did not suffer from want of jurisdiction.

4. On the part of the respondents, it was urged that the cheques were drawn on SBI Branch at Hospete, Bellary and hence, the complaint could not have been lodged in Bangalore, reliance was sought to be placed on the judgment of the Supreme Court rendered in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra & Another in Criminal Appeal No.2287 of 2009 and it was contended that the plea of the accused could not be recorded.

5. However, it was pointed out by the complainant that Dashrath Rupsingh Rathod also lays down that in cases where the evidence had commenced, that the hearing of the complaint could be continued in the same court notwithstanding that by virtue of the judgment, such matters would have to be transferred to the place where the cheques were drawn. This was also the legal position declared in yet another judgment of the Supreme Court in the case of Indian Bank Association and Others vs. Union of India and others, AIR 2014 SC 2528.

6. It is further contended that the Legislature has amended the Act by the Negotiable Instruments (Amendment) Second Ordinance, 2015, which has been brought into force with effect from 15th June 2015 and that the law laid down is prospective and therefore, the question of transferring the present complaint, would not arise.

However, the court below having passed an order transferring the matter, it was promptly challenged in a petition before this court in Crl.P.754/2015. The same was allowed and the matter was remanded for a fresh consideration. Even on remand, the court has now passed the impugned order. The reasons assigned are in the face of the observations of this court and the court has accepted the contention on behalf of the respondents that notwithstanding the observations in Dashrath Rupsingh Rathod’s case, since the accused had not entered his plea, it was not a case which had reached the trial stage and has proceeded on that footing and has negated the contention of the complainant that the case would have to be treated as having reached the trial stage.

In this regard, it is unfortunate that the court below has not addressed the observations of the Supreme Court in Dashrath Rupsingh’s case, namely that it is specifically clarified that regardless of whether evidence has been led before the Magistrate at a pre-summons stage either by affidavit or oral statement, the complaint will be maintainable only at the place where the cheque has been dishonoured. This was also the dictum of the Supreme Court in Indian Bank Association’s case, wherein it is specifically laid down as follows:

'16. We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the Court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. Affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. In other words, there is no necessity to recall and re-examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences.'

(Emphasis supplied)

Therefore, the Trial Court having sought to interpret the procedure as prescribed under Chapter XX prescribing the procedure for the trial of a summons case by the Magistrate, which would apply even in respect of summary trials as provided under Section 262 Cr.P.C., which provides that the procedure specified for the trial of summons cases shall be followed in respect of summary trials as well, with such exceptions as specified under the chapter, cannot be found fault with. However, by virtue of the interpretation by the Supreme Court,

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of the procedure to be followed in respect of offences punishable under Section 138 of the NI Act, which no doubt is tried as a summons case, subject to such exceptions as provided under the NI Act, it would be the law of the land by which the Magistrate was bound. There is no indication that the said judgment was brought to the attention of the court below. Therefore, there shall be no further waste of time on this controversy as to whether the complaint should continue before the court below or that it should be transferred to the court at Hospete, where the cheques were said to have been issued. The petition is summarily allowed. The matter shall continue before the court below, in accordance with law.