KANNOTHUMKANDY SIRAJ Vs. K SUBAIR & ANOTHER

JUDGEMENT

(1.) The petitioner herein is the accused in Anx. A-1 complaint filed by the 1st respondent complainant before the Chief Judicial Magistrate's Court, Thalassery, alleging offence under Section 138 of the Negotiable Instruments Act. The gist of the complaint is that the accused had issued a cheque dated 1.12.2012 for Rs. 5 lakhs drawn on Vijaya Bank, H. D. Kote Branch, Karnataka, in favour of the complainant. The cheque was presented by the complainant before the North Malabar Gramin Bank, Chakkarakkallu branch, Kannur district, and upon its dishonour and adherence to the statutory formalities of notice, etc., the complainant had preferred the instant complaint, which was taken on file as S. T. No. 42/2012 by the learned Magistrate. The said complaint was filed before the Chief Judicial Magistrate's Court, Thalassery, in the light of the legal position settled earlier by the Apex Court in K. Bhaskaran v. Sankaran Vaidhyan Balan, reported in 1999 (7) SCC 510 : (AIR 1999 SC 3762), regarding the territorial jurisdiction of criminal Courts for entertaining of complaints filed under Section 138 of the N.I. Act. Later, by judgment dated 1.8.2014, the Apex Court in the case Dashrath Rupsingh Rathod v. State of Maharashtra and Anr. (Cri. Appeal No. 2287/2009) reported in (2014) 9 SCC 129 : (AIR 2014 SC 3519) had held that the territorial jurisdiction of the cases relating to Section 138 of the N.I. Act, is restricted to the Court within whose local jurisdiction, such offence is committed, which, in the present context's case, where the cheque is dishonoured by the bank on which it is drawn. The Apex Court had also directed therein that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Act, the proceedings will continue at that place and ail other complaints (including those where the accused/respondent has not been properly served) shall be returned to the complainant for filing in the proper Court, in consonance with the exposition of the law, as determined in the said judgment. On such return, the complainants were obliged to re-present the complaint within 30 days of their return and if such Complaints are filed/refiled within thirty 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.

(2.) In the light of the above said directions issued by the Apex Court in Dashrath Rupsingh Rathod's case (AIR 2014 SC 3519) supra, the Chief Judicial Magistrate's Court, Thalassery, had returned Anx. A-1 complaint to the counsel for the complainant on 23.9.2014. According to the complainant, he became aware about the said direction to return of the complaint only on 14.9.2015 and thereafter, he had instructed his counsel to collect the complaint and re-present it before the same Court (Chief Judicial Magistrate's Court, Thalassery) on 15.9.2015. Accordingly, Anx. A-3 affidavit and petition dated 15.9.2015 were filed before the Chief Judicial Magistrate's Court, Thalassery, praying that the delay of 327 days in re-presenting the complaint may be condoned and that the complaint may be taken back to the same Court. The said payer in Anx. A-3 was made by the complainant in the light of the provisions contained in the Negotiable Instruments (Amendment) Ordinance, 2015 (No. 6 of 2015), which was promulgated and published in the gazette with effect from 15.6.2015.

(3.) The learned Magistrate allowed the prayer made In Anx. A-3 application as per the order dated 15.9.2015 endorsed therein. Anx. A-3 petition was numbered as Criminal Miscellaneous Petition No. 4239/2015 arising out of S.T.C. No. 42/2012 on the file of the Chief Judicial Magistrate's Court, Thalassery. The prayer in Anx. A-3 petition was allowed on 15.9.2015 itself as per the order to that effect, endorsed therein. A type written copy of the said order dated 15.9.2015 has been produced as Anx. A-4, which reads as follows: