SOBHA RANI S. Vs. STATE OF KERALA

JUDGEMENT

(1.) The order under challenge is the one at Anx.A-3 dated 26.5.2016 whereby the complaint in C.C.No.22/2013 filed by the petitioner before the Judicial First Class Magistrate Court-V (Special Court for Marklist Cases), Thiruvananthapuram, has been returned to be filed before the proper court, which has territorial jurisdiction as per Sec. 142(2) of the Negotiable Instruments Act. The brief facts leading to the said impugned order are as follows:

(2.) The complaint in question is filed by the petitioner alleging commission of offence punishable under Sec. 138 of the N.I. Act, in which the 2nd respondent herein has been arrayed as accused. The dishonoured cheque in question is for Rs. 25 lakhs dated 5.7.2012 drawn from the account of the accused maintained in the ICICI Bank, Kunnamkulam Branch. The complaint was initially filed as Crl.M.P. No.4045/2012 before the Chief Judicial Magistrate (CJM) Court, Thiruvananthapuram, on 110.201 The case was taken on file by the CJM as C.C.No.44/2013 on 11.1.2013 as the collection bank of the complainant is Corporation Bank, Vellayambalam, Thiruvananthapuram, which is within the limits of Thiruvananthapuram Museum Police Station, over which the CJM, Thiruvananthapuram, had territorial jurisdiction at that time. From the report dated 1.6.2017 of the CJM, Thiruvananthapuram, which has been furnished to the Registry of this Court in connection with this case, it is seen that during the year 2012, Judicial First Class Magistrate Court-V, Thiruvananthapuram, had only jurisdiction for the trial of mark list cases (State wide jurisdiction) and has no notified territorial jurisdiction based on Police Station. As the number of Mark List Cases pending in that court was very few, cases were normally made over to that court by the CJM, Thiruvananthapuram, and other courts having heavy pendency. Therefore, considering the fact that the workload in the CJM Court was quite heavy, the CJM, Thiruvananthapuram, after taking cognizance of the offence had exercised his power under Sec. 192(1) of the Cr.P.C and the case was made over to the Judicial First Class Magistrate Court-V, Thiruvananthapuram, and the said court had taken the case on file as C.C.No.22/2013. In the judgment dated 1.8.2014 of the Apex Court in the case Dasarath Rupsingh Rathod Vs. State of Maharashtra & anr. reported in (2014) 9 SCC 129, a Three Judge Bench of the Apex Court has categorically held that the commission of the offence under Sec. 138 of the N.I.Act is on the dishonor of the cheque and that going by the mandate of Sec. 177 of the Cr.P.C, the territorial jurisdiction is restricted to the Magistrate Court within whose local jurisdiction, the offence was committed, which in the context of Sec. 138 of the N.I. Act, is the court within whose local jurisdiction in the territorial limits the cheque is dishonoured by the bank in which it is drawn. In other words, in interpreting the provisions contained in the N.I. Act and the Cr.P.C, their Lordships of the Apex Court in Dasarath Rupsingh Rathod Vs. State of Maharashtra & anr. reported in (2014) 9 SCC 129, have conclusively held that the territorial jurisdiction is restricted to the court within those local jurisdiction, the offence was committed, which in the present context is where the cheque is dishonoured by the drawee bank. However, the Apex Court in para 22 of the above said judgment, issued some special directions in order to alleviate the hardships that may be caused to litigants and ordered that in those cases where, post the summoning and appearance of the accused, the recording of evidence has commenced as envisaged in Sec. 145(2) of the N.I. Act, would continue at the original court and further that whether the evidence has been let in before the Magistrate at the presummoning stage, either by way of affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque was dishonoured and that the category of complaint cases, where proceedings have gone to the stage of Sec. 145(2) or beyond the post-summoning stage, shall be deemed to have been transferred by the Supreme Court from the court ordinarily possessing territorial jurisdiction as clarified in the judgment. All complaints, other than those that reached Sec. 145(2) post-summoning stage, were directed to be returned to the complainant for filing in the proper court in consonance with the said judgment and that if such complaints are filed/re-filed within 30 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, etc. Here, in the instant case, the dishonoured cheque in question has been drawn from an account maintained with the ICICI Bank, Kunnamkulam Branch. But the complaint was initially filed before the CJM, Thiruvananthapuram, which was having territorial jurisdiction over the collection bank area. However, it appears that since the case had reached the Sec. 145(2) post-summoning evidence stage, it was not liable for return and re filing before the proper court as it was entitled to get the benefit of the exemption granted in the above said judgment of the Apex Court. Later, the provisions of the N.I. Act were amended so as to incorporate a new sub-section (2) to Sec. 142 as well as the new provision as per Sec. 142A, as per the provisions contained in the Negotiable Instruments (Amendment Ordinance) Act, 2015, which came into force on 15.6.2015 and later such provisions were replaced by the Negotiable Instruments (Second Ordinance), 2015, and the subsequent amendment Act thereto. As noted hereinabove, those amended provisions came into force on 15.6.2015. As per the provision contained in sub-section (2) of Sec. 142 as now introduced, the offence under Sec. 138 of the N.I.Act shall be enquired and tried by the court within whose local jurisdiction-

(3.) Sub-section (1) of Sec. 142A also mandates that notwithstanding anything contained in the Cr.P.C or any other judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of Sec. 142 as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, (Ordinance 6 of 2015), shall be deemed to have been transferred under that Act, as if that sub-section had been in force at all material times.