Sree Gokulam Chits and Finance Company Pvt. Ltd. v. Kumaran C.M. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 7TH DAY OF APRIL 2017/17TH CHAITHRA, 1939** ## **Crl.MC.No. 384 of 2017 ()** **-------------------------CMP.NO. 5091/2015 OF CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR CC.NO. 2611/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I,THRISSUR** **---------------------** ## **PETITIONER :** **---------------------** **SREE GOKULAM CHITS AND FINANCE COMPANY PVT. LTD., HEAD OFFICE AT NO.66, ARCOT ROAD, KODAMBAKKAM, CHENNAI - 600 024, HAVING A DIVISIONAL OFFICE AT M.G.ROAD, THRISSUR, REP. BY THE BUSINESS MANAGER, SRI.SASIDHARAN, 52 YEARS, S/O.VELLIYAT GOPALAN NAIR, KODANOOR, THRISSUR.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR** **RESPONDENT(S)/STATE:-:** **----------------------------------------** ## **1. KUMARAN.C.M.,** **AGED 47 YEARS, S/O.MUTHU, CHALAKKAL HOUSE, KARIKKAD P.O., PATTIMURI - 680 579.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-04-2017,ALONG WITH CRL.MC.NO.2268 OF 2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 384 of 2017 () --------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** ## **--------------------------------------------** **ANNEXURE A1. THE TRUE PHOTOSTAT COPY OF THE COMPLAINT IN C.C.2611/2014 OF THE COURT OF JUDICIAL MAGISTRATE OF THE FIRST CLASS-1, THRISSUR.** **ANNEXURE A2. THE TRUE PHOTOSTAT COPY OF THE ORDER DATED 02.03.2015 IN C.C.2611/2014 OF THE COURT OF JUDICIAL MAGISTRATE OF THE FIRST CLASS-I, THRISSUR. ANNEXURE A3. THE TRUE PHOTOSTAT COPY OF THE PETITION DATED 13.10.2015 FILED BY THE COUNSEL FOR THE PETITIONER BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.** **ANNEXURE A4. THE TRUE COPY OF THE ORDER DATED 22.03.2016 IN C.M.P.NO.5091/2015 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.** **RESPONDENT(S)' ANNEXURES: NIL** **----------------------------------------------** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## ALEXANDER THOMAS, J. ================== Crl.M.C.No. 384 & 2268 of 2017 ================== Dated this the 7[th] day of April, 2017 O R D E R ## Crl.M.C.No. 384/2017: The petitioner is the complainant in C.C.No. 2611/2014 on the file of the Judicial First Class Magistrate's Court-I, Thrissur. The 1[st] respondent herein has been arrayed as accused therein for offence punishable under Sec.138 of the Negotiable Instruments Act. The complaint was initially filed before the Chief Judicial Magistrate's Court-V. Thrissur, who after taking cognizance had made over the case to the abovesaid Judicial First Class Magistrate's Court-I, Thrissur, for trial. In view of the judgment dated 1.8.2014 rendered by the Apex Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. reported in (2014) 9 SCC 129, wherein it has been held that the court having territorial jurisdiction to try an offence under Sec.138 of the Negotiable Instruments Act, is the magistrate court having jurisdiction over the area of the drawee bank, the said complaint was returned to the counsel for the complainant on 2.3.2015 to present the same before the appropriate court having jurisdiction. But the counsel for the complainant had not taken steps to re-present the complaint before the proper court in terms of the abovesaid judgment of the Apex Court. 2. Later amendments were made to the N.I. Act by newly inserting sub section (2) of Sec.142 and Sec.142A thereof with effect Crl.M.C.384/17 & C.C. - : 2 :- from 15.6.2015, whereby as per clause (a) to Sec.142, the offence under Sec.138 is to be tried only by the court within whose local jurisdiction the payee maintains his account, is situated in the case where the cheque is delivered for collection through an account of the payee. In the light of these amendment provisions made with effect from 15.6.2015, the petitioner had re-presented the complaint before the original court, viz., the Chief Judicial Magistrate's Court, Thrissur, as per Anx. A-3 dated 13.10.2015. It was also prayed in Anx. A-3 dated 13.10.2015 that the delay of 193 days in re-submitting the complaint may be condoned. The learned Magistrate as per the impugned order has dismissed Anx.A-3 petition as per the impugned Anx.A-4 order 23.3.2016 rendered on Criminal Miscellaneous Petition No.5091/2015. It is this order at Anx. A- 4 which is under challenge in this proceedings. 3. Notice in this case was taken out by speed post to R-1 and it has been reported that the said notice has been duly delivered by speed post services, etc. In spite of service of notice, there is no appearance for R-1. 4. Heard Smt.N.Sudha, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 5. A Division Bench of this Court in Binoy K.Mathew v. Godley Dev John & Anr. reported in 2015 (4) KHC 243 (D.B). had occasion to deal Crl.M.C.384/17 & C.C. - : 3 :- with the issue of complaints, which were initially returned in terms of the directives of the Apex Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. reported in (2014) 9 SCC 129, for presentation before the proper court within 30 days thereof, but were not so represented within the said 30 days' time but were re-submitted before the coming into force of the abovesaid amended provisions of the N.I. Act made effective with effect from 15.6.2015. After examining the provisions contained in Sec.142(A) of the amended provisions, their Lordships of the Division Bench held in para 19 thereof that the non obstante clause in Sec.142A(1) of the N.I. Act 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 in terms of sub-section (2) of S.142 of the N.I. Act as if that sub-section had been in force at all material times. It was held that the said amended provision is clarificatory in nature, clarifying the territorial jurisdiction for trying the cases for dishonour of cheques as indicated in the Statement of Objects and Reasons appended to the Amendment Bill. It was also held by the Division Bench therein that nothing in the judgment dated 1.8.2014 of the Apex Court in Dashrath Rupsingh's case would preclude the magistrate courts from exercising the statutory powers conferred under Sec. 142(1)(b) proviso of the N.I. Act read with Sec.470 of the Cr.P.C. for condonation of delay Crl.M.C.384/17 & C.C. - : 4 :- and for time exclusion, etc. But it was also held that in view of the abovesaid amended provisions in the N.I. Act, it is not necessary to undergo the process of consideration of delay condonation and time exclusion and that it will be more than sufficient if the complainants are permitted to present the complaints before the courts where they were originally filed, that is, in the court having territorial jurisdiction over the collection bank area in question. It was held in para 20 thereof that the complainants could be permitted to present the respective complaints where they were originally filed and on such presentation, the court shall treat them as having been filed, on the date on which the respective complaints were originally filed, etc. These directions issued in cases which were not re-presented before the “proper court” within 30 days' time limit stipulated in the Apex Court judgment, but had been represented prior to the coming into force of the amended provisions on 15.6.2015. But in the instant case, the complaint has been re-presented only after 15.6.2015 (date of coming into force of the amended provisions) and therefore the benefit of the abovesaid directions in the Division Bench in Binoy K.Mathew 's case supra may not be directly available to the present petitioner. But this Court in a detailed order dated 16.1.2015 rendered in Crl.M.C.No. 2079/2016, has held that in the case of such complaints, which were not re-presented within 30 days' time limit, but which were subsequently re-submitted after the coming Crl.M.C.384/17 & C.C. - : 5 :- into force of the amended provisions w.e.f. 15.6.2015, the complainants are certainly entitled for the consideration of condonation of delay and time exclusion in terms of Sec.142(1)(b) proviso of the N.I. Act read with Sec. 470 of the Cr.P.C., etc. 6. In such complaints, which were so re-submitted after 15.6.2015, the time upto 14.6.2015 is liable to be excluded in terms of the reasonings and conclusions arrived at by the Division Bench in Binoy K.Mathew 's case supra and that therefore the time taken upto 14.6.2015 is liable to be excluded in terms of Sec. 470 of the Cr.P.C. and in the light of the legal principles laid down by the Division Bench of this Court in Binoy K.Mathew's case supra and that in such cases, time upto 14.6.2015 may not be reckoned for any serious explanation from the complainant in the matter of condonation of delay and the most relevant aspect is the time taken from 15.6.2015 (date of coming into force of the amended provision), upto the date of actual re- submission of the complaint. 7. In this context it is also relevant to note that the Apex Court has held in para 13 of the the decision in Bridge Stone India (P) Ltd.'s case supra 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 Crl.M.C.384/17 & C.C. - : 6 :- 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. Further their Lordship of the Division Bench have also held in para 16 of in Bridge Stone India (P) Ltd.'s case supra that the words " _...as if that sub-section had been in force at all material times.._ ." employed in Sec. 142A (1), which is used with reference to S.142(2), gives retrospectivity to that provision, etc. 8. From a perusal of the impugned order, it appears that the learned Magistrate has taken into account the delay period starting from the expiry of the abovesaid 30 days' time limit upto the date of resubmission as per Anx.A3 dated 13.10.2015, which is coming to 193 days. Whereas the magistrate ought to have excluded the time upto 14.6.2015 and should have taken into consideration only the delay period from 15.6.2015 upto 13.10.2015. Of course, the petitioner has also contributed to this improper consideration inasmuch as even he has pleaded in Anx. A-3 for the entire period of 193 days, etc. Therefore, on this ground alone the impugned Anx. A-4 order is liable to be set aside and the delay condonation application is liable to be remitted to the court below for consideration afresh. In the light of these aspects, it is ordered that the impugned Anx. A-4 order is set aside and Criminal Miscellaneous Petition No.5091/2015 as per Anx.A-3 dated 30.10.2015 will stand restored to the file of the magistrate court. The petitioner is Crl.M.C.384/17 & C.C. - : 7 :- permitted to file an affidavit/additional affidavit for detailing out the reasons for the condonation of delay with the plea that the time upto the 14.6.2015 has to be excluded and also giving further reasons for the delay which occurred from 15.6.2015 upto 13.10.2015, etc. It has been held by this Court in the order dated 16.1.2017 in Crl.M.C.No. 2049/2016 that in such cases the delay condonation application will be decided by the magistrate only after giving a reasonable opportunity of being heard to the accused, etc. Hence the magistrate will issue notice to the accused in order to afford him a reasonable opportunity of being heard. After hearing both sides, the learned Magistrate will take a decision in the matter of delay condonation without much delay. The petitioner will file the additional affidavit along with a certified copy of this order before the learned Magistrate within a period of 2 weeks from the date of receipt of a certified copy of this order and thereafter, the learned Magistrate will issue notice to the accused and he may endeavour to pass orders on the delay condonation application without much delay at any rate, within a period of 2 to 3 weeks from the date of completion of service of notice on the accused. While considering the delay condonation application, it will be borne in mind by the learned Magistrate that a whole lot of dislocation had occurred in the matter of territorial jurisdiction in the scenario after the directives issued in Dashrath Rupsingh's case supra issued on 1.8.2014 and the subsequent Crl.M.C.384/17 & C.C. - : 8 :- amendments made to the N.I. Act with effect from 15.6.2015. Many a time, the Advocates for the complainants were never properly notified about the return of the complaint. An Advocate practising before a trial court may not be confined to that court alone and he may be having assignments in many courts and therefore many confusions would have arisen due to non communication of the return of the complaint and even due to not noting the relevant dates by the clerks attached to those Advocates. Therefore, a strict view which may otherwise be invokable in delay condonation process may not be really called for while entertaining delay condonation and time exclusion in cases, as in the instant one. Already a Division Bench in Binoy K.Mathew 's case supra has even held that so long as the complaints were re-presented before 15.6.2015, but after the 30 days' time limit, such complaints should be permitted to be re-presented before the proper courts in terms of Sec.142(1) of the Negotiable Instruments Act, without any need for delay condonation application or time exclusion, etc. Therefore, suffice to say, a lenient and a liberal view is certainly called for in dealing with this situation, as otherwise it might amount to penalising the Advocates for the complainants as well as the complainants, due to the abovesaid dislocation that happened. With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of. Crl.M.C.384/17 & C.C. - : 9 :- ## Crl.M.C.No. 2268/2017: 9. The facts in this case are also broadly similar to the one in the abovesaid matter in Crl.M.C.No.384/2017. 10. In this case the petitioner had initially filed the complaint before the Judicial First Class Magistrate's Court-II, Thiruvalla, and therein it was numbered as S.T.No.1037/2014 and the case was posted to 17.3.2015. According to the petitioner, the case was later advanced to 29.11.2014, without any notice to the complainant or his counsel and on 29.11.2014, the trial court ordered the case be returned to the complainant for want of territorial jurisdiction for re-presentation before the proper court within 30 days from that order, in view of the judgment dated 1.8.2014 rendered by the Apex Court in Dashrath Rupsingh's case supra. Moreover, it is also stated that the complainant's counsel was undergoing serous cardiac treatment and he was under bed rest for very long time and not aware of the said order. It was later that amendments were made to the Negotiable Instruments Act newly inserting Sec. 142(2) and Sec. 142A effective from 15.6.2015. It is stated that as per the newly amended provisions of the Negotiable Instruments Act, the Judicial First Class Magistrate's Court, Thiruvalla, who is having territorial jurisdiction. So the counsel for the petitioner had filed Anx. A5 application dated 6.10.2015 for restoration of the complaint as the said court is having territorial jurisdiction in view of the amended provisions. But that the said Crl.M.C.384/17 & C.C. - : 10 :- request in Anx.A-5 has not been considered by the trial court. Accordingly, the prayer of the present Crl.M.C. is for orders from this Court to direct the Judicial First Class Magistrate's Court, Thiruvalla, to restore the complaint in S.T.No.1037/2014 invoking the inherent powers of this Court. 11. At the time of admission of this case, this Court had issued notice to R-2 (accused). Though notice to R-2 (accused) has been duly service, there is no appearance for that party. 12. Heard Sri.P.K.Aboobacker, learned counsel appearing for the petitioner (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-1 State. As noted herein above, there is no appearance for R-2 (accused) despite due service of notice. 13. The matter in issue is fully covered by the order rendered by this Court today in Crl.M.C.No.384/2017. It is pointed out by the petitioner that in the instant case, the drawee bank is the State Bank of India, Vanchiyoor, Thiruvananthapuram, and the collection bank of the complainant is the Karnataka Bank, Thiruvalla Branch. So the original complaint was filed before the Judicial First Class Magistrate's Court, Thiruvalla, which was returned as per Anx.A-4 for re-presentation within 30 days in terms of the Dashrath Rupsingh's case supra. That later in view of the amended provisions, the magistrate court having territorial jurisdiction in the subject matter is the Judicial First Class Magistrate's Crl.M.C.384/17 & C.C. - : 11 :- Court, Thiruvalla, which is having jurisdiction over the collection bank area in this case. 14. The petitioner has a specific case that magistrate court at Thiruvalla had initially posted the case to 17.3.2015, which was unilaterally advanced to 29.11.2014 to which the complainant had not any knowledge. Moreover, the counsel for the complainant was laid up due to serious heart ailments and treated in the hospital for such ailments, for a very long time. These averments have not been rebutted by the 1[st] respondent accused and there are no materials before this Court to disbelieve the abovesaid version of the complainant. Therefore this Court is convinced that a lenient and liberal approach is called for in the facts and circumstances of this case. That apart, it is made clear that the time starting 30 days from the expiry of Anx.A-4 dated 29.11.2014 upto the date of submission of Anx.A-5 dated 6.10.2015, need not be fully reckoned for the purpose delay condonation and in that regard the time upto 14.6.2015 is liable to be excluded by virtue of the legal principles importable from Sec. 470 of the Cr.P.C. and in the light of the legal principles laid down by the Division Bench of this Court in Binoy K.Mathew v. Godley Dev John & Anr. reported in 2015 (4) KHC 423 (D.B). Accordingly Anx.A-5 dated 6.10.2015 will stand restored to the file of the learned Magistrate. In case Anx.A-5 has been returned to the complainant and the same is not available with him, then the complainant Crl.M.C.384/17 & C.C. - : 12 :- will be permitted to substitute the same with another petition. The complainant will also give an affidavit explaining all the aspects of the case and also giving the reasons for the delay, more particularly from 15.6.2015 upto the date of submission of Anx.A-5 petition dated 6.10.2015. The formalities in this regard shall be completed by the petitioner within a period of three weeks from the date of receipt of a certified copy of this order and the petitioner will make available a certified copy of this order before the learned Magistrate. Thereupon the learned Magistrate will issue notice to the accused on the delay condonation process. After hearing both sides, the learned Magistrate will endeavour to pass orders on the delay condonation application without much delay and at any rate, within a period of 2-3 weeks from the date of completion of service of notice on the accused. The observations and findings made by this Court in Crl.M.C.No. 384/2017 will be equally applicable in this case as well and so there is no necessity to repeat those directions once again in this case. With these observations and directions, the aforecaptioned Crl.M.C. will also stand finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.M.C.384/17 & C.C. - : 13 :-