TMI Blog2022 (10) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... erson 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 jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on grounds are raised, both these matters are taken together for disposal. 5. Heard Mr. Abhay Nachinolkar, learned Counsel for the appellant, Mr. A.D. Bhobe, learned Counsel for respondent No.1 and Mr. Gaurish Nagvenkar, Additional Public Prosecutor for respondent No.2. 6. With the assistance of the learned Counsel appearing for the respective parties, I have perused the entire record and particularly the judgments and reasoning of the learned Magistrate and that of the First Appellate Court. 7. Shri Abhay Nachinolkar, appearing for the appellants in both the matters submitted that the learned Additional Sessions Judge while acquitting both the accused persons erred in accepting the contentions raised in the grounds and more particularly, disbelieving the authority given to the witness to file the complaint. He, therefore, submitted that the question in both the appeals is whether a witness had authority to file complaint. 8. Learned counsel Shri Nachinolkar then submitted that in Criminal Appeal No.21 of 2018, apart from the above question, there is additional ground wherein the learned Additional Sessions Judge erred in holding that the learned Magistrate at Quepem ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id criminal appeal, the decision in the case of Dashrath Rathod (supra) was delivered. He, therefore, submitted that the non-suiting of the complainant on the so-called ground of lack of jurisdiction of the learned Magistrate was totally erroneous, in view of the directions issued by the Apex Court in the case of Dashrath Rathod(supra). The proper course that would have been adopted by the learned Additional Sessions Judge, at the most, was to transfer the said case to the jurisdictional court. He, therefore, submitted that while nonsuiting the complainant, the learned Additional Sessions Judge did not discuss how the observations in the case of Bhaskaran (supra) and more particularly, relied upon by the learned Magistrate, are not applicable to the facts and circumstances of the present case. 12. Per contra, learned counsel Shri Ashwin D. Bhobe, appearing for the respondents in both the cases submitted that no interference is warranted in the decision passed by the learned Additional Sessions Judge as the view taken therein is a plausible view and while dealing with an appeal against such orders and even if another view is possible, the same shall not be replaced. 13. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (supra) nowhere distinguishes earlier decision in the case of Bhaskaran (supra), which is of the coordinate Bench, the doctrine of choice applies and which the learned Additional Sessions Judge has opted to consider the law laid down by the Apex Court in the case of Harman (supra) no fault can be found with such observation as both these judgments are binding on the Courts below. He then submitted that while exercising the doctrine of choice, the judgment which is closer to facts and law has to be taken into account while deciding the matter at hand. According to him the ratio in the case of Harman (supra) is more closer to the facts and circumstances of the matter in Criminal Appeal No.21 of 2018 which has been rightly considered by the learned Additional Sessions Judge and thus no interference is warranted. 17. Learned Shri Bhobe placed reliance on the following decisions: a) The Goa State Co-op. Bank Ltd. v/s. M/s. Kurtarkar Traders (2009) ALL MR (Cri) 3617 b) Shri Ashok Bampto Pagui v/s. M/s. Agencia Real Canacona Pvt. Ltd. Anr (2007) ALL MR (Cri) 2338. c) M/s. Alka Toraskar v/s. The Vaishya Urban Co-op. Credit Soc. Ltd. Anr. (2006) (6) ALL MR 397. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal and thereby quashed and set aside judgment and conviction passed by the learned Magistrate in Criminal Case No.103/NI/2010/B and accordingly acquitted the accused. Accordingly, the complainant preferred an appeal bearing Criminal Appeal No.11 of 2015 before this Court. 22. The brief facts in Criminal Appeal no.21 of 2018 are as under:- The accused by name Nilkhant B. Velip availed loan from the complainant Society on 25.01.2005. On 18.02.2009 accused Nilkanth issued a cheque bearing No.0624295 amounting to Rs.70,100/- drawn on Goa State Co-operative Bank Ltd., Shiroda in favour of the complainant towards repayment of the loan instalments overdue. On 23.02.2009 said cheque was returned unpaid for funds insufficient. On 09.03.2009 demand notice was issued by the complainant which was received by the accused on 17.03.2009. On 20.04.2009 complaint was lodged under Section 138 of the Negotiable Instruments Act before the learned Magistrate at Quepem by the complainant. 23. On 21.02.2013, the learned Magistrate at Quepem found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torney. He submitted that the power of attorney could be ignored in view of a specific resolution passed by the Board. 29. Thus, it is necessary to quote the resolution of the Board of Directors so as to interpret the wording in it and to find out whether any specific power was given to PW1 in both the matters by the Society to launch proceedings. 30. The resolution of the appellant Society in Criminal Appeal no.11 of 2015 is dated 11.11.2009 which reads thus:- 'Resolution No.5(I):- It is hereby resolved that Shri SURENDRA MAHADEV GAONKAR, aged about 26 years, son of Shri Mahadev Gaonkar, residing at Bendurdem, Balli, Quepem-Goa, presently working as Legal Officer in the Head Office of this Society shall be appointed and/or nominated as the Attorney for the Society to represent the Society before all the Civil and Criminal Courts including Tribunal, Registrar of Cooperative Societies, Co-Operative Court, Co-operative Tribunals or before Assistant Registrar or the nominee of the Registrar and shall be given power to conduct, lead Evidence, represent and proceed all the cases, disputes litigations, executions, proceedings including criminal cases on behalf of and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. 34. The learned Additional Sessions Judge while deciding Criminal appeal no.48 of 2012, which is the subject matter in challenge in Criminal Appeal No.11 of 2015 observed in paragraph 30 as under:- ' ... It is thus settled law that power to file a complaint can be conferred on any person only by resolution of Board of Directors. In the case at hand the resolution on which the complainant has relied does not authorize Shri Surendra to execute or file a complaint. The Learned Magistrate therefore could not have even issued process against the accused on the strength of the complaint filed by an unauthorized person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived at a wrong conclusion. 40. Learned counsel then submitted that in the case of M/s Harman Electronics (supra), the Hon'ble Apex Court considered the definition of the wording 'giving of notice' and how it is distinguished from 'receiving of the notice' as defined in the Black's Law Dictionary which is found in paragraph no.10 of the above decision. He, therefore, submitted that there is nothing adverse in finding out the dictionary meaning of a word in order to interpret correct meaning of it, specifically when such wording has been interpreted in a different meaning and context by the Courts below in the impugned judgment. 41. There is substance in the submissions of the learned counsel appearing for the appellant in the above respect and the word proceed has to be looked into and considered with the meaning provided in the dictionary and it is actually defined as begin course of action . If we consider such definition of the word proceed all the cases , it literally means that to begin the course of action , to initiate and conduct legal action or to initiate a legal action . 42. Only because the word proceed is followed by all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts are totally different. M/s. Agencia Real Canacona Pvt. Ltd. being a company was required to resolve in the Board of Directors meeting to grant any authority to any of the persons to file complaints. Instead of that, one of the Directors granted Power of Attorney to another person to file the complaints and to represent the company which has been rejected by this Court as found in paragraph 21. This decision also is not helpful as there was no resolution passed by the Board of Directors authorizing anyone to represent the company. 45. In the case of M/s. Alka Toraskar (supra), though there was a resolution passed as found in paragraph 12, it only speaks that 'It was resolved to authorise Mr. Gaurish P. Shirodkar, Officer-in-Charge for Recovery, to attend any Court/ABN cases on behalf of our Society against defaulters and our loanee members'. There was no specific resolution or authority given to said Mr. Shirodkar to launch prosecution for and on behalf of Society in the said resolution. Thus the case of M/s. Alka Toraskar (supra), is not helpful to the respondent due to the wordings in the said resolution. 46. Learned counsel Shri Bhobe then placed reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having authority to launch prosecution, the wordings in the resolution passed in favour of Satyawan Narayan Velip is discussed in paragraph 28 onwards and thereafter the word proceed is considered in paragraph no.29 as under:- '29. Therefore, resolution did not give powers to Shri Satyawan Narayan Velip to file or initiate criminal cases, though it gives him power to proceed in all the cases and, as submitted by the learned Adv. S.M. Tendulkar, the word proceed presumes that there is already a proceeding filed which has to be proceeded with and does not include the word file or initiate . 49. Considering the dictionary meaning as submitted by the learned counsel for the appellant, the word proceed means to begin with course of action , to go on to do something or to continue . Thus, the word proceed cannot be only interpreted as to continue with the proceedings already filed. It has to be interpreted as defined in the Black's Law Dictionary as begin a course of action . If that is so, the observation of the learned Additional Sessions Judge in both the impugned judgments are contrary to the dictionary meaning of the word proceed which, in fact, mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Court is not at all justified. In the result, such observations need to be quashed and set aside. Point no.1 is, therefore, answered in affirmative. 55. The learned Additional Sessions Judge Margao (Criminal Appeal No.51 of 2013) decided on 17.06.2017 observed that the Judicial Magistrate First Class had no territorial jurisdiction to decide the said complaint, which is challenged in the present appeal (Criminal Appeal No.21 of 2018). 56. The learned Additional Sessions Judge while deciding point no.1 framed in paragraph 18 of the impugned judgment, observed that loan was sanctioned from Shiroda Branch and only notice issued from Quepem Head-office after the cheque was dishonoured, will not give jurisdiction to Quepem Court. In this respect reliance is placed in the case of Harman Rathod (supra). 57. The learned counsel Shri Nachinolkar forcefully submitted that when the said decision was passed by the learned Additional Sessions Judge on 17.06.2017, the Hon'ble Apex Court in the case of Dasharath Rathod (supra) discussed on earlier decisions including the case of K. Bhaskaran (supra), Harman Rathod (supra) alongwith other decisions. He submitted that the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larify further, while partly affirming the observations in the case of K. Bhaskaran (supra) observed in paragraphs 19 to 22 as under:- '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 NI 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 have become reckless and incautious in extending credit where they would heretofore have been extremely hesitant, solely because of the availability of redress by way of criminal proceedings. It is always open to the creditor to insist tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issal 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 NI Act. The vindication of this view is duly manifested by the decisions and conclusion 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 CrPC 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.' '22. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence i.e. applicability to complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if (a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue, (b) if the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque, and (c) if the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice. 58.4. The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. 58.5. The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the court till such time cause of action in terms of clause (c) of the proviso accrues to the complainant. 58.6. Once the cause of action accrues to the complainant, the jurisdiction of the court to try the case will be determined by reference to the place where the cheque is dishonoured. 58.7. The general rule stipulated under Section 177 CrPC applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant/payee of the cheque such an advantage. Even so, experience has shown that the view taken in Bhaskaran case permitting prosecution at any one of the five different places indicated therein has failed not only to meet the approval of other Benches dealing with the question but also resulted in hardship, harassment and inconvenience to the accused persons. While anyone issuing a cheque is and ought to be made responsible if the same is dishonoured despite compliance with the provisions stipulated in the proviso, the court ought to avoid an interpretation that can be used as an instrument of oppression by one of the parties. The unilateral acts of a complainant in presenting a cheque at a place of his choice or issuing a notice for payment of the dishonoured amount cannot in our view arm the complainant with the power to choose the place of trial. Suffice it to say, that not only on the principles of interpretation of statutes but also the potential mischief which an erroneous interpretation can cause in terms of injustice and harassment to the accused the view taken in Bhaskaran case needs to be revisited as we have done in foregoing paragraphs.' 61. Cogent rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Considering the above observations, on both counts, the impugned judgment in Criminal Appeal No.51 of 2013 dated 17.06.2017 needs to be interfered with by quashing the same. The directions in the case of Dashrath Rathod (supra) needs to be followed by remanding the matter to the learned Magistrate at Quepem and directing the said Magistrate to transfer/forward the case papers through the Sessions Judge, to the Court at Ponda having territorial jurisdiction to decide such matters. 64. Accordingly, Criminal Appeal No.11 of 2015 also needs to be allowed by quashing and setting aside the judgment dated 21.10.2013 in Criminal Appeal No.48 of 2012 and by restoring the order passed by the learned Magistrate dated 27.03.2012 in Criminal Case No.103/NI/2010. Hence, the order:- O R D E R Criminal Appeal No.11 of 2015 stands allowed. The impugned judgment dated 21.10.2013 in Criminal Appeal No.48 of 2012 passed by the learned Additional Sessions Judge, Margao is hereby quashed and set aside. The judgment/order dated 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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