PHILIPOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner, claiming that the cheques issued by the accused in his favour for discharge of a legally enforceable debt/liability were dishonoured for insufficiency of funds filed complaints before learned Chief Judicial Magistrate, Pathanamthitta and those complaints were taken on file as C. C. Nos. 125 of 2004 and 126 of 2004 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act"). Since all steps taken to procure presence of accused failed, learned Chief Judicial Magistrate resorted to the procedure under Sections 82 and 83 of the Code of Criminal Procedure (for short, "the Code") and issued non-bailable warrants repeatedly to the accused. But, the same could not be executed in spite of efforts. Thereon the cases were included in the Long Pending Register as L. P. Nos. 25 of 2005 and 34 of 2005. At that stage, petitioner filed Annexures 2 and 3, petitions --C. M. P. No. 6484 of 2005 (in L. P. No. 25 of 2005) and C. M. P. No. 6483 of 2005 (in L. P. No. 34 of 2005) to issue warrant to the accused through the Indian Embassy in the United States since the accused is staying there. Those applications were dismissed by the learned Chief Judicial Magistrate vide Annexures 3 and 4, orders respectively for the reason that in view of Section 77 of the Code a warrant of arrest could be executed only at a place in India and not beyond. Those orders are under challenge in these Criminal Miscellaneous Cases. Learned Counsel has contended that learned Chief Judicial Magistrate has not taken into account Sections 105 and 105A of the Code as also the Extradition Treaty Government of India has with the Government of United States. I have heard learned Public Prosecutor also. Section 77 of the Code states that warrant of arrest may be executed at any place in India. But for Sections 105 and 105A of the Code as the learned Counsel claims, no other provision in the Code empowers execution of warrant beyond the territorial limits of the country. In view of Section 105(1)(ii) of the Code summons or warrant could be executed in any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place (called 'the contracting State') for service or execution of summons or warrant in relation to criminal matters. In such situation the Court in India shall sent summons or warrant in duplicate in such form directed to such Court, Judge or Magistrate and sent to such authority for transmission as the Central Government by notification may specify in that behalf. Section 105A(a) of the Code defines 'Contracting State' as meaning any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise. Learned Counsel has given me for perusal a copy of the India Extradition Treaty with the United States (for short, "the Treaty"). Article 2 of the Treaty deals with 'extraditable offences' and Clause (1) of that Article says that "an offence shall be an extraditable offence if it is punishable under the laws in both Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty". As per Section 138 of the Act as amended by Act 55 of 2002, imprisonment upto two years may be awarded for the said offence. So far as the offence in India (Section 138 of the Act) is concerned, requirement of Clause (1) of Article 2 of the Treaty is satisfied. But, the question still arises is whether for an offence similar to one under Section 138 of the Act the punishment that is provided in the contracting State (United States) is for a period of more than one year.

(2.) Though learned Counsel has placed reliance on the decisions in State of West Bengal & Anr. v. Jugal Kishore More & Anr., 1969 AIR(SC) 1171 and Bhavesh Jayanti Lakhani v. State of Maharashtra, 2009 9 SCC 551, on the crucial question as to what exactly is the punishment provided under the American Law for an offence similar to one under Section 138 of the Act, no material is placed before me. Hence I am unable to say whether invoking Article 2(1) of the Treaty and in the light of Sections 105(1)(ii) and 105A of the Code a warrant could be issued to the accused. But this matter requires consideration. I am inclined to give petitioner opportunity to produce the relevant law applicable in America regarding dishonour of cheques and the punishment provided therein as on the date of commission of offence in this case.