TMI Blog2017 (8) TMI 1680X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent therein (the complainant concerned) and that if a complainant files any complaint before any court it may do it rightly or wrongly and the complainant in a complaint alleging offence under Section 138 of the Negotiable Instruments Act, being a private party is not amenable to the writ jurisdiction of this Court under Article 226 and therefore, this Court cannot judicially review the actions of such a complainant by invoking the powers conferred under Article 226 of the Constitution of India. It is well settled law that a High Court shall have judicial superintendence over all courts and Tribunals throughout the territories in relation to which it exercises its jurisdiction. In other words, the subordinate court/Tribunal concerned which is sought to be supervised under Article 227 of the Constitution of India should be one which is situated and 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 - the alternate plea made by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 maintained by accused No.1 (petitioner), at Federal Bank, Ernakulam Branch. The abovesaid cheques were initially presented by the complainant through Canara Bank at Patna Branch, which resulted in dishonour and later, it was again re-presented before the Canara Bank, East of Kailash, New Delhi, and were dishonoured as per the dishonoured memo dated 4.1.2016. Similar averments are also made in the unnumbered O.P.(Crl.), which is concerning C.C.No.754/1 of 2016. In that case also, the case of the complainant is that he was an employee of the abovesaid second accused concern and that after the termination of his service, his due salaries were sought to be cleared by accused No.1 (petitioner) issuing two cheques d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 appropriate reliefs. 4. This Court in O.P.(Crl.) No.454 of 2016 had passed order dated 8.9.2016 admitting the Original Petition and ordering grant of interim stay of all further proceedings in C.C.No.911 of 2016 on the file of the Metropolitan Magistrate Court concerned. Though notice was ordered to be issued by this Court on 8.9.2016, even till date no steps whatsoever has been taken by the petitioner to take out notice to any of the three respondents including R1 who is the most affected party being the complainant in the impugned complaint. The Registry had noted defect, while moving the above-referred latter Original Petition, viz. the unnumbered O.P.(Crl.) on 1.8.2017 the Registry had noted defect and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 profitable to refer to paragraphs 8, 9 and 10 of the abovesaid Full Bench decision in Meenakshi Sathish v. Southern Petrochemical Industries reported in 2007(1) KLT 890 (F.B.) 8. In the light of the above mentioned two decisions of the Apex Court in Navinchandra and Mosaraf Hossain Khan, which Division Bench decision of this Court, that is whether the decision in Krishnakumar Menon's case or the decision in U.B.C.'s case, lays down the correct legal position, is the point to be answered in this case. There cannot be any dispute that the complaint before the Coimbatore court and taking cognizance of the same by the said court cannot be challenged under S.482 of the Cr.P.C or under Art.227 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cognizance under S.190(1)(a) read with S.200 of the Cr.P.C. of the offence alleged against the petitioner and issuing process under S.204. The entire cause of action, as far as the action of the learned Magistrate is concerned, arose in Coimbatore, outside the jurisdiction of this Court. So, 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. Therefore, we have no doubt in our mind that the reliefs sought in this Writ Petition cannot be granted by this Court. We are of the view that the decision of the Division Bench in U.B.C. v. Govarthanam (2005 (2) KLT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary 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 of India would lie as against a civil court/judicial court, etc. Their Lordships of the Supreme Court held that the scope of jurisdiction under Article 227 of the Constitution of India is distinct from that under Article 226 and that all courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227 and control of the working of subordinate courts in dealing with that judicial orders is exercised by way of statutory, appellate or revisional powers or powers of superintendence under Article 227 and not by way writ jurisdiction under Article 226. That by appellate or revisional jurisdiction is regulated by the statutes, power of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 jurisdiction under Section 115 C.P.C. by Act 46 of 1999, the jurisdiction of the High Court under Article 227 remains unaffected and has not resulted in expanding the High Courts power of superintendence. It was also held therein that the scope of Article 227 is quite different and distinct from that of Article 226 and that challenge in judicial orders would lie by way of statutory appeal or revision or under Article 227 and not by way of a writ under Article 226 and 32 of the Constitution of India. (See paragraphs 18 and 27 of the SCC report). It was also held by the Apex Court that writ jurisdiction is constitutionally conferred on all High Courts and broad principles of writ jurisdiction follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 territorial jurisidiction under Article 226(2). It is now well settled law that writs under Article 226 of the Constitution of India would not lie as against judicial courts including civil courts and criminal courts. So, the prayers made by these petitioners for quashing the impugned complaint by invoking the enabling powers under Article 226 of the Constitution of India is absolutely not maintainable. 7. Faced with the situation, Sri.Mathew Sebastian, learned counsel appearing for the petitioner would argue that assuming for argument sake that no writ under Article 226 would lie, then certainly directions can be passed by this Court under Article 227 of the Constitution of India, in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 proposed trial before the Metropolitan Magistrate s Court at New Delhi is initiated inasmuch as the prior sanction of the Central Government has not been obtained as mandated in Section 188 of the Cr.P.C. 10. Section 188 of the Cr.P.C. reads as follows : 188. Offence committed outside India :- When an offence is committed outside India - (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found : Provided that, notwithstanding anything in any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. may not have any application in the facts of the instant case inasmuch as the offence under Section 138 of the Negotiable Instruments Act has been committed at the time and place where the dishonour of the cheque has taken place in view of the dictum to that effect laid down by a recent three Judge Bench judgment of the Apex Court rendered on 1.8.2014 in Dashrath Rupsingh Rathod v. State of Maharashtra and another reported in (2014) 9 SCC 129 : 18. Section 138 of the N.I.Act is structured in two parts-the primary and the provisory. It must be kept in mind that the legislature does not ordain with one hand and immediately negate it with the other. The proviso often carves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the cheques in question be made payable at a place of the creditor s convenience. Today s reality is that every Magistracy is inundated with prosecutions under Section 138 of the N.I.Act, so much so that the burden is becoming unbearable and detrimental to the disposal of other equally pressing litigation. We think that courts are not required to twist the law to give relief to incautious or impetuous persons ; beyond Section 138 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 explained in paragraph 18 of the abovesaid 3 Judge Bench decision in Dashrath Rupsingh Rathod s case (supra) to the effect that a reading of Section 138 of the N.I.Act leaves no matter 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. In the light of the said legal position laid down by the Apex Court in Dashrath Rupsingh Rathod s case, the prosecutor would point out that the offence under Section 138 of the Negotiable Instruments Act should be treated to have been committed at the place and time where the dishonour of the cheque has taken place and that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 of this Court by the learned prosecutor that the abovesaid amendments made effective from 15.6.2015 in the N.I. Act, has not in any manner altered the clear provision in Section 138 of the Negotiable Instruments Act that the incident of returning of the presented cheque by the drawee Bank as unpaid due to insufficiency of funds, would result in the deemed commission of the offence under Section 138. Therefore in law, the place of commission of the offence is the place where the dishonour of the cheques occur, but that the only court which is having jurisdiction as the competent court to try the offence is the Magistrate Court having territorial jurisdiction over the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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