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TMI Blog2017 (8) TMI 1680X X X X Extracts X X X X X X X X Extracts X X X X ..... st. New Delhi, Patiala House Courts, New Delhi, instituted on the basis of a complaint filed by the first respondent in that petition. 2. In both the complaints, the petitioner herein is accused No.1 and it is described in the cause title of the complaints that he is the authorised signatory, owner and proprietor of M/s.Perfect Drilling General Construction Establishment (accused No.2) through its Manager, owner or Proprietor. According to the complainant (in O.P. (Crl.) 454 of 2016), he was the employee of accused No.2 concern, which is based at Saudi Arabia and that the petitioner herein, who is accused No.1, is the owner and proprietor of accused No.2 concern and that the petitioner is also the authorised signatory for signing the cheques issued for and on behalf of the second accused. Further it is the case of the complainant that his service was terminated and accused No.2 had settled the salaries and towards settlement of his salary arrears, accused No.1, who is the proprietor and authorised signatory of accused No.2, had issued four postdated cheques dated 20.10.2015 dated 30.11.2015 dated 31.12.2015 and dated 2.2.2016 for Rs.1,40,000/- each, all drawn from the account main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding payment of the cheque amount and (5) failure of the drawer to make payment within 15 days of receipt of the notice. On the strength of the abovesaid judgment of the Apex Court in Bhaskaran's case (supra), the petitioner would argue that part of the cause of action alleged in these criminal complaints has arisen in Kerala inasmuch as the dishonour of the cheque has taken place at the drawee Bank, Federal Bank, Ernakulam Branch, which is situated within the State of Kerala and that therefore, this Court has jurisdiction under Article 226(2) of the Constitution of India inasmuch as part of the cause of action has arisen within the State of Kerala. The petitioner would also place reliance of the judgment of the Apex Court in Nawal Kishore Sharma v. Union of India and others reported in (2014) 9 SCC 329, wherein it is held that the jurisdiction of a High Court under Article 226(2) of the Constitution of India can be invoked against any authority or person residing outside the territorial jurisdiction of the High Court concerned, if the whole or part of the cause of action has arisen within the territorial jurisdiction of the High Court where the Writ Petition is moved for appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicially review the actions of such a complainant by invoking the powers conferred under Article 226 of the Constitution of India. The other point that was considered by the Full Bench was as to whether the court could judicially review the action of the Magistrate in taking cognizance of the offence under Section 190(1)(a) read with Section 200 of the Cr.P.C. and in issuing process under Section 204 Cr.P.C. It was found on facts that the entire cause of action as far as the action of the learned Magistrate was found to have arisen in Coimbatore, which is outside the territorial jurisdiction of this Court and it was held that even if the complainant has wrongly filed a complaint before the Coimbatore court, the action of taking cognizance and issuance of the process took place outside the jurisdiction of this Court and therefore, the reliefs sought for in the Writ Petition cannot be granted by this Court and that even if the cause of action for the complaint under Section 138 of the Negotiable Instruments Act arose in Kerala, this Court cannot interfere with the proceedings for a criminal court which is situated outside the territorial jurisdiction of this Court. It will be profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia by them. To get over the above decisions of the Apex Court and make the law in tune with the decisions of the above High Courts, the amendment was introduced. Art.226 was drastically amended by Constitution 42nd Amendment Act, 1976. The original position was substantially restored later, by the Constitution 44th Amendment Act, 1978. In view of clause (2) of Art.226, if part of the cause of action arose in the State, writ could be issued against an authority, though the seat of it is outside the territorial jurisdiction of this Court. 10. But, the cause of action which must arise in Kerala for issuing the writs of certiorari or prohibition, must relate to the commissions or omissions of an inferior court or Tribunal amenable to the writ jurisdiction of this Court and not that of a private party. This Court cannot judicially review the actions of the 1st respondent. It may file any complaint before any court. It may do it rightly or wrongly. The 1st respondent being a private party not amenable to the writ jurisdiction of this Court, we cannot judicially review its actions. But, the point to be decided is whether we can judicially review the action of the Magistrate in taking co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har Mirajkar v. State of Maharashtra reported in AIR 1967 SC 1 has categorically held that writ of certiorari does not lie to quash the judgments of the inferior courts of civil jurisdiction, etc. (paragraph 62 thereof). Later, a two Judge Bench decision of the Apex Court in Surya Dev Rai v. Ram Chander Rai reported in 2003(6) SCC 675 has held that a Writ Petition under Article 226 of the Constitution of India is maintainable against the order of the civil court, etc. In the case in Radhey Shyam and another v. Chhabi Nath and others reported in (2015) 5 SCC 243, it was argued that the dictum laid down by the two Judge Bench decision in Surya Dev Rai's case is not good law in view of the contrary view taken earlier by the nine Judge Bench judgment in Naresh Shridhar Mirajkar's case reported in AIR 1967 SC 61. Accordingly, the matter was placed before a three Judge Bench of the Supreme Court, for consideration of issues in that regard. The three Judge Bench judgment of the Apex Court in Radhey Shyam and another v. Chhabi Nath and others reported in (2015) 5 SCC 243, has dealt with the entire gamut of the issues in that regard as to whether a writ under Article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant/plaintiff and the appellant had moved the Supreme Court by way of special leave petition contending that Writ Petition under Article 226 of the Constitution will not lie against the order of the civil court and that the impugned order could not have been passed by the High Court. The Apex Court has laid down that the technicalities associated with prerogative writs in England have no role to play under our constitutional scheme of things and that there is no parallel system of Kings Court in India and have all other courts having limited jurisdiction subject to supervision of the High court and that such courts are set up under the Constitution and the laws and all courts under the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227 of the Constitution. Control of the working of the subordinate courts in dealing with the judicial orders is exercised by way of appellate or revisional powers or powers of superintendence under Article 227 and that while appellate or revisional is regulated by statutes, the power of superintendence under Article 227 is constitutional and despite curtailment of revisional jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court including a criminal court. Though the facts of Radhey Shyam's case (supra) dealt with the amenability of writ jurisdiction vis-avis civil court, the conclusion is irresistible that the ratio-decidendi of the said decision would lead to the position that no writ under Article 226 of the Constitution of India would lie as against any judicial court including civil courts and criminal courts. The present Original Petitions have been filed by purportedly invoking solely the provisions contained in Article 226(2) of the Constitution of India on the ground that part of the cause of action arisen in the State of Kerala and that therefore, petition under Article 226 is maintainable, etc. The petitioner has placed reliance on the judgments of the Apex Court in Nawal Kishore Sharma v. Union of India and others reported in 2014 (9) SCC 329, Navinchandra N.Majithia v. State of Maharashtra and others reported in (2000) 7 SCC 640, Rajendran Chingaravelu v. R.K.Mishra, Additional Commissioner of Incometax and others reported in 2010(1) SCC 457, etc. The said decisions take the view that if part of the cause of action has arisen in a state, then the High Court of that state will have territ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functioning within the territorial jurisdiction of the High Court concerned. In the instant case, it is not in dispute that the complaint has been entertained by the Metropolitan Magistrate Court concerned based at New Delhi which is indisputably not within the territorial limits of this Court. Moreover, in paragraph 8 of the judgment of the Full Bench in Meenakshi Sathish's case (supra), it has been held that there cannot be any dispute that the complaint before the criminal court which is situated outside the State of Kerala taking of cognizance of the offence cannot be challenged before this Court under Article 227 of the Constitution of India, etc. Therefore, the alternate plea made by the petitioner that this Court should invoke jurisdiction under Article 227 of the Constitution of India is not maintainable. 9. Further Sri.Mathew Sebastian, learned counsel appearing for the petitioner, would contend that even going by the case projected by the complainants, the instant cheques have been executed and issued in Saudi Arabia which is a foreign country and that the major component of the transaction and the cause of action has occurred in that foreign country and that the propose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to the Section is prohibitive and sanction of the Central Government is a preliminary requisite for the institution of criminal proceedings in India in respect of the offences committed outside India. Proceedings taken without such sanction are without jurisdiction and void. Since the proviso casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person, the Section has a message that for the pre-enquiry stage, no such sanction is required and the pre-inquiry stage substantially relates to the investigation of the crime and if there is any stage in which an offender can be dealt with before commencement of inquiry, it must be the investigation stage and that Section 188 of the Cr.P.C. states that the offender may be dealt with in respect of such offence as if it have been committed at any place within India and at which he may be found, etc. The Full Bench has also affirmed the legal principles laid down by the Division Bench in Muhammed v. State of Kerala reported in 1994 (1) KLT 464. 12. Learned prosecutor, who is appearing for the State of Kerala, has submitted that the said provisions in Section 188 of the Cr.P.C. ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the prosecution. We, however, are of the view that so far as the offence itself the proviso has no role to pay. Accordingly, a reading of Section 138 of the N.I.Act in conjunction with Section 177 Cr.P.C leaves no manner of doubt that the return of the cheque by the drawee Bank alone constitutes the commission of the offence and indicates the place where the offence is committed. 19. In this analysis we hold that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee Bank is located. The law should not be warped for commercial exigencies. As it is Section 138 of the N.I.Act has introduced a deeming fiction of culpability, even though, Section 420 is still available in case the payee finds it advantageous or convenient to proceed under that provision. An interpretation should not be imparted to Section 138 which will render it as a device of harassment i.e., by sending notices from a place which has no causal connection with the transaction itself, and/or by presenting the cheque(s) at any of the Banks where the payee may have an account. In our discernment, it is also now manifest that traders and businessmen ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant chooses to present the cheque for encashment by his Bank are not relevant for purposes of territorial jurisdiction of the complaints even though non-compliance therewith will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general; of the N.I.Act. The vindication of this view is duly manifested by the decisions and conclusions arrived at by the High Courts even in the few cases that we shall decide by this judgment. We clarify that the complainant is statutorily bound to comply with Section 177, etc. of Cr.P.C and therefore, the place or situs where the Section 138 complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the Bank on which it is drawn." 13. It is also pointed out that the legal position laid down by the two Judge Bench decision of the Apex Court in Bhaskaran v. Sankaran Balan Vaidhyan reported in 1999 (7) SCC 510 = 1999 (3) KLT 440 (SC) has also been expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Branch of the Bank of the payee or holder in due cours, where the drawee maintains an account, would be determinative of the place of the territorial jurisdiction of this Court for trying offence under Section 138 of the Negotiable Instruments Act and that further it has also been held in paragraph 16 thereof that the words ".... as if that subsection had been in force at all material times.........." used with reference to Section 142(2), as employed in 142A (1) of the Amended Act gives retrospectivity to that provision, etc. Therefore, it is also pointed out that in view of the legislative amendment so made the only courts having jurisdiction to try the offence, to conduct enquiry or trial the offence under Section 138 of the Negotiable Instruments Act is the competent Magistrate Court having territorial jurisdiction over the collection Bank area in case the cheque has been presented for collection. Accordingly, it is pointed out that the only court which can now try the offence in the instant case is the one at New Delhi assuming that the averments in the complaint that the collection Bank in these cases are situated in New Delhi are correct. It is also brought to the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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