Labour India Publications Limited v. State of Kerala and Ashraf P.P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** **Crl.Rev.Pet.No. 273 of 2015 () ------------------------------CMP 5620/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT - I, PONNANI** **----------** ## **REVISION PETITIONER(S)/PETITIONER:-:** **-----------------------------------** **LABOUR INDIA PUBLICATIONS LIMITED** **MARANGATTUPALLY, REPRESENTED BY ITS AUTHORIZED PERSON, KRISHNA PILLAI A.S., ANNAVI VEEDU, ANAKKALLU, KANCHIRAPALLI, KOTTAYAM DISTRICT.** **BY ADVS.SRI.E.N.VISHNU NAMBOODIRI SRI.P.P.NARAYANAN SRI.S.P.SURESH KUMAR** **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ***ADDL.R2 IMPLEADED :** ## **2. ASHRAF P.P.** **S/O.KUNHIMUHAMMED, PANDARAPPARAMBIL VEEDU, EDAPPAL P.O., NEAR GOVERNMENT HOSPITAL, MALAPPURAM DISTRICT - 679 576. *ADDL.R2 IS IMPLEADED AS PER ORDER DT 17/3/2015 IN CRL.M.A. 1390/2015 IN CRL.RP 273/2015.** **R1 BY PUBLIC PROSECUTOR SRI.SAIJI JACOB PALATTY ADDL. R2 BY ADV. SRI.P.U.SHAILAJAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.Rev.Pet.No. 273 of 2015 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXUREA1:** **COPY OF THE COMPLAINANT IN CC NO. 1831/2013 FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA.** **RESPONDENT'S ANNEXURES :** **NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## ALEXANDER THOMAS, J. ================== ## Crl.R.P.No. 273 of 2015 ================== Dated this the 30[th] day of January, 2017 O R D E R The revision petitioner had filed a complaint alleging offence under Sec.138 of the Negotiable Instruments Act, in which the 2[nd] respondent was arrayed as accused. The said complaint was numbered as C.C.No.1831/2013 on the file of the Judicial First Class Magistrate's Court, Pala. It is stated that the said complaint was returned by the magistrate's court at Pala on 1.10.2014 with a direction to file the same before the proper court, that is, the Judicial First Class Magistrate's Court, Ponnani, within 30 days, in the light of the directives issued by the Apex Court in Dashrath Rupsingh Rathod v State of Maharashtra & Anr. reported in (2014) 9 SCC 129. It is stated that on 31.10.2014, the Judicial First Class Magistrate's Court, Ponnani was on leave and the complaint was filed on 1.11.2014 before the Judicial First Class Magistrate's Court, Perinthalmanna, who was in charge of the Judicial First Class Magistrate's Court, Ponnani. The complaint was dismissed under Crl.R.P.273/15 - : 2 :- Sec.203 of the Cr.P.C. by the learned Magistrate at Ponnani, stating that the re-presentation was beyond the period of 30 days permitted by the Apex Court in the abovesaid judgment dated 1.8.2014, as the complaint was seen filed only on 1.11.2014. It is this order that is under challenge in the instant revision. The impugned order reads as follows: ## “ORDER This is a private complaint filed against accused U/S 138 of the Negotiable Instrument Act. 2. The complaint was originally filed before J.F.C.M, Perinthalmanna. The complaint was returned by that court based on the ruling of the Honourable Supreme Court in Dashrath Rupsingh Rathod v. State of Meghalaya reported in 2014 (3) KHC for filing before proper court. 3. The complaint was returned on 1.10.2014. As per the ruling the complaint must be filed before proper court within one month from the date of its return. The complaint is seen filed only on 1.11.14. 4. As per General Clauses Act section 3(36) one month means a month reckoned according to English calendar month. The calender month will expire with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts. 5. So when the complaint was returned by J.F.C.M. Perinthalamanna on 1.10.2014, it ought to have been filed on or before 31.10.14. The same is seen filed only on 1.11.14. No delay condonation application is filed. The complaint is re-presented beyond the prescribed period and hence the same is barred. Hence the complaint is dismissed U/S 203 as time barred.” 2. After rendering of the judgment dated 1.8.2014 of the Apex Court in Dashrath Rupsingh Rathod's case supra reported in Crl.R.P.273/15 - : 3 :- (2014) 9 SCC 129, amendments were made as per the Negotiable Instruments (Amendment) Ordinance, 2015 (No.6 of 2015), which was published in the gazette of 15.6.2015, which was later replaced by the Negotiable Instruments (Amendment) Second Ordinance, 2015 and still later, by the Negotiable Instruments (Amendment) Act, 2015. As per the said Amendment, sub section (2) of Sec.142 of the N.I. Act was inserted by the said Amendment, which reads as follows: "Sub section (2).The offence under S.138 shall be inquired into and tried only by a Court within whose local jurisdiction:-- - (a) If the cheque is delivered for collection through an account, the branch of the Bank where the payee or holder in due course, as the case may be, maintains the account, is situated: or - (b) If the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.-- For the purposes of Clause (a), where a cheque is delivered for collection at any branch of the Bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the Bank in which the payee or holder in due course, as the case may be, maintains the account." ## Sec.142A as inserted in the principal Act, by the said ## Amendment reads as follows: "Sec.142A.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or directions of any Court, all cases arising out of S.138 which were pending in any Court, whether filed before it, or transferred to it, before the commencement of the Negotiable Crl.R.P.273/15 - : 4 :- Instruments (Amendment) Ordinance, 2015 shall be transferred to the Court having jurisdiction under sub-section (2) of S.142 as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub-section (2) of S.142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the Court having jurisdiction under sub-section (2) of S.142 or the case has been transferred to that Court under subsection (1), and such complaint is pending in that Court, all subsequent complaints arising out of S.138 against the same drawer shall be filed before the same Court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that Court. (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different Courts, upon the said fact having been brought to the notice of the Court, such Court shall transfer the case to the Court having jurisdiction under sub-section (2) of S.142 before which the first case was filed and is pending, as if that sub-section had been in force at all material times." 3. A Division Bench of this Court in Binoy K.Mathew v. Godley Dev John & Anr. reported in 2015 (4) KHC 243 (D.B) was called upon to deal with cases where the complaints in similar situations could not be re-presented within the permitted time limit of 30 days as stipulated in the said Apex Court ruling and those complaints were presented along with delay condonation application before the provisions of the Amendment Ordinance/Act which came into force on 15.6.2015. The Division Bench in Binoy K.Mathew's case supra held in paras 8 and 9 thereof that the provisions contained in Sec. 470 of the Cr.P.C. read with the proviso Crl.R.P.273/15 - : 5 :- to clause (b) of Sec. 142 of the N.I. Act could be invoked and that nothing in the judgment of the Apex Court in Dashrath Rupsingh Rathod's case supra would prevent the magistrate court from invoking those powers for considering the question of condonation of delay in re-presenting those complaints after the expiry of 30 days' time limit. However, in para 10 of the said ruling, the Division Bench held that in view of the subsequent amendment made to the Negotiable Instruments Act as per the provisions of the Amendment Ordinance and the Act, which came into force on 15.6.2015, resort to the said delay condonation provision is not really necessary and their Lordships of the Division Bench in Binoy K.Mathew's case supra further held in paras 19 and 20 thereof, that the non-obstante clause in Sec.142A of the N.I. Act, as inserted by the amended provision, covers cases pending before any court, whether filed before it or transferred to it before the commencement of the Ordinance, and such cases shall be transferred to the court having jurisdiction under sub section (2) of Sec. 142 of the N.I. Act as if that sub section had been in force at all material times. Further that Ordinance No.6 of 2015 is clarificatory in nature, clarifying the territorial jurisdiction for trying the cases for Crl.R.P.273/15 - : 6 :- dishonour of cheques as indicated in the Statement of Objects and Reasons appended to the amendment bill and sub section (1) of Sec.142A of the Negotiable Instruments Act would make the position clear that it is clarificatory in nature and if so, it is not necessary to direct the courts which passed the impugned orders to entertain the complaints and consider the application for condonation of delay and it is sufficient that the petitioners therein are permitted to present the complaints before the court where they were originally filed. In this view of the matter, the Division Bench in para 20 of the said ruling held that the petitioners therein could be permitted to present the complainant in the respective courts where they were originally filed, and on such presentation, the courts shall treat the same as having been filed on the date on which the respective complaints were originally filed. The petitioners therein were directed to present their respective complaints in the proper court, namely where it was originally filed, within one month from the date of the Division Bench judgment, etc. 4. Incidentally it is to be noted that the Apex Court in Bridge Stone India (P) Ltd. v. Inderpal Singh, reported in (2016) 2 SCC 75, had also occasion to construe the abovesaid amendment Crl.R.P.273/15 - : 7 :- provisions of the Negotiable Instruments Act and held in para 13 thereof that a perusal of the amended Sec.142(2) leaves no room for any doubt, especially in view of the Explanation thereunder that with reference to an offence under Sec.138 of the Negotiable Instruments Act, the place where the cheque is delivered for collection, that is the branch of the bank, of the payee or the holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction. Their Lordships of the Apex Court also further held in para 16 of the said ruling that the words " _...as if that sub-section had been in force at all material times..._ " used with reference to S.142(2), as employed in S.142A(1) gives retrospectivity to that provision, as if that provision had been in force at all material times. In the light of the said ruling, this Court is of the view that the impugned order is liable to be set aside. Moreover, in the light of the specific directions issued by the Division Bench in Binoy K.Mathew's case supra, it is further ordered in the interest of justice that the learned Magistrate, who passed the impugned order will ensure that the complaint is returned to the complainant within one week from the date of production of a copy of this order, upon which the complainant will ensure that the complaint is Crl.R.P.273/15 - : 8 :- re-presented before the Judicial First Class Magistrate's Court, Pala, within 30 days therefrom. If the complaint is preferred within the said time limit, the Magistrate Court at Pala will ensure that the same is proceeded as if it has been filed within time, etc. With these observations and directions, the Criminal Revision Petition stands finally disposed of. sdk+ ///True Copy/// Sd/ALEXANDER THOMAS, JUDGE P.S. to Judge