9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (10) TMI 261 - HC - Indian LawsDishonor of Cheque - power of witness/attorney to file the complaint on behalf the complainant - territorial jurisdiction of learned Magistrate at Quepem to try and decide the complaint filed on behalf of the complainant - Section 138 of the Negotiable Instruments Act - HELD THAT - Section 138 of the Negotiable Instruments Act provides that the payee or the holder in due course of the cheque must make demands for the payment of the said cheque by giving notice; in writing and in case of failure of payment of the amount mentioned in the cheque within the stipulated period, the complaint could be filed within a period of one month of the date on which the cause of action arose under clause (c) of the proviso to Section 138. Thus, the payee or the holder in due course is the Society/complainant herein as the cheque was issued in the name of the Society itself which is clear from the cheque produced on record. Admittedly, the Society has to be represented by an authorised person before the Court of law either to launch prosecution of a case or to defend. The main thrust on behalf of the accused persons is on the interpretation which is adopted by the learned Additional Sessions Judge in both the matters thereby observing that the words proceed all the cases as found in the resolution cannot be interpreted otherwise but has to be considered that the authority is given to proceed in all cases which are pending as on the date of resolution. In other words, both the learned Additional Sessions Judges accepted the contentions of the accused persons that such resolution nowhere gives power to the representative to file criminal cases but only authorised him to appear and conduct the pending cases. The proper course available in the present matter before the learned Additional Sessions Court was to quash and set aside the judgment passed by the learned Magistrate at Quepem for want of territorial jurisdiction and to remand the matter with directions that the matter stands transferred as observed by the Apex Court, to the jurisdictional Court at Ponda as the transaction took place in Shiroda. Dismissing the said case for want of territorial jurisdiction, was, therefore, not proper as complaint was filed, entertained and decided on the basis of the law laid down by the Apex Court in the case of K. Bhaskaran 1999 (9) TMI 941 - SUPREME COURT . The proper course is to quash and set aside the judgment passed by the learned Magistrate at Quepem in Criminal Case No.38/NI/2009 and to remand it to the said Court with directions to transfer the said case to the learned Magistrate having territorial jurisdiction, i.e. the Court at Ponda. The approach of the Court must be justice oriented. Appeal allowed.
Issues Involved:
1. Authority of the witness to file the complaint. 2. Territorial jurisdiction of the Magistrate at Quepem to entertain and decide the complaint. Issue-wise Detailed Analysis: 1. Authority of the Witness to File the Complaint: - Background: The main contention was whether the witnesses, Surendra Mahadev Gaunkar and Satyawan Narayan Velip, had the authority to file complaints on behalf of the complainant society. - Arguments: - The appellant argued that the resolution passed by the Board of Directors was sufficient to authorize the witnesses to initiate legal proceedings. - The respondents contended that the resolution only allowed the witnesses to proceed with already initiated cases, not to file new complaints. - Court's Analysis: - The court examined the resolutions and found that they granted power to "proceed all the cases," which was interpreted by the respondents as continuing existing cases. - The court referred to the dictionary meaning of "proceed," which includes "begin a course of action," supporting the appellant's interpretation that the witnesses were authorized to initiate legal actions. - The court concluded that the resolutions did indeed give the witnesses the authority to file complaints, setting aside the lower court's interpretation that the witnesses could only handle ongoing cases. 2. Territorial Jurisdiction of the Magistrate at Quepem: - Background: The issue was whether the Magistrate at Quepem had the territorial jurisdiction to try and decide the complaints. - Arguments: - The appellant argued that the decision of the Magistrate at Quepem was based on the precedent set by K. Bhaskaran v/s. Shankaran Vaidhyan Balan, which allowed jurisdiction based on the place of issuance of notice. - The respondents relied on Harman Electronics (P) Ltd. v/s. National Panasonic India Ltd., which held that jurisdiction cannot be based solely on the place of issuance of notice. - Court's Analysis: - The court noted that the decision in Dashrath Rupsingh Rathod v/s. State of Maharashtra clarified that the place of dishonor of the cheque determines jurisdiction. - The court observed that the proper course would have been to transfer the case to the jurisdictional court rather than dismissing it for lack of jurisdiction. - The court directed that the case be remanded to the Magistrate at Quepem to transfer it to the jurisdictional court at Ponda, following the guidelines from Dashrath Rupsingh Rathod. Conclusion: - Criminal Appeal No. 11 of 2015: The judgment of the Additional Sessions Judge dated 21.10.2013 was quashed, and the original conviction by the Magistrate dated 27.03.2012 was restored. The accused was ordered to surrender within 15 days. - Criminal Appeal No. 21 of 2018: The judgment dated 17.06.2017 by the Additional Sessions Judge and the judgment dated 21.02.2013 by the Magistrate at Quepem were quashed. The case was remanded to the Magistrate at Quepem to transfer it to the jurisdictional court at Ponda for a prompt resolution. Order: - Criminal Appeal No. 11 of 2015: Allowed, restoring the Magistrate's order. - Criminal Appeal No. 21 of 2018: Partly allowed, with directions for case transfer and expedited resolution. Costs: - Each party to bear their own costs.
|
