@JUDGMENTTAG-ORDER
K.T. Sankaran, J@mdashThese Crl RPs were referred to the Division Bench to consider the question whether the Court before which a complaint under Section 138 of the Negotiable Instruments Act (for short ''the NI Act'') was re-presented following the decision of the Supreme Court in
"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 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."
In the light of the decision of the Supreme Court in Dashrath Rupsingh Rathod''s case (supra), the Courts where the complaints in the present cases were filed returned the same to the respective complainant for presentation before the proper Court. In the case involved in Crl RP No. 871 of 2015, the Judicial Magistrate of the First Class Court, Chittoor had condoned the delay of 27 days.
2. In Dashrath Rupsingh Rathod''s case (supra), the Supreme Court considered the hardship that would be caused to the litigants following the view taken therein and made sufficient safeguards for meeting that situation in paragraph 22, which reads as follows:
"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 alleged respondent-accused who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other complaints (obviously including those where the respondent-accused has not been properly served) shall be returned to the complainant for filing in the proper Court, in consonance with our exposition of the law. If such complaints are filed-re-filed within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time-barred."
3. As stated above, the complainants in these cases presented the complaints before the proper Courts on the return of the complaints. However, such presentation before the proper Courts was not within 30 days, as directed by the Supreme Court. Taking 30 days as the period, there occurred a delay of 6 days, 7 days, 10 days, 30 days, 67 days and 91 days in the various cases from which the revisions arose. The Courts below before which the complaints were presented, took the view that they had no power to condone delay as the presentation of the complaints before the proper Courts was beyond 30 days fixed by the Supreme Court. Those orders are under challenge in these revisions.
4. In A. Rajagopal Karunan''s case (supra), in similar circumstances, a learned Single Judge of this Court condoned the delay of 17 days in re-presenting the complaint before the proper Court, taking the view that if the delay is not condoned, it will definitely be an act of injustice.
5. The Supreme Court in Dashrath Rupsingh Ratliod''s case (supra) considered the question as to what will happen if the view taken by the Supreme Court is implemented. To meet such a situation, certain safeguards were provided. In the case of complaints, where recording of evidence was not commenced, those complaints would be maintainable only where the cheques were dishonoured and in other cases the Supreme Court took the view that the cases would be treated as transferred to the Courts where the complaints were filed. The complaints in the present revisions were all at the preliminary stage and therefore, they had to be presented before the proper Courts. The petitioners complied with that direction. However, there occurred delay. The question to be considered in these Revisions is whether the direction given by the Supreme Court that if such complaints were filed/re-filed within 30 days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or proper filing itself was time barred, is only an enabling provision or whether it would bar the re-filing of the complaint beyond 30 days. In other words, the question is whether the Court before which the complaint was presented after its return would lose its power to condone the delay while exercising its jurisdiction under Section 142 of the Negotiable Instrument Act.
6. In the NI Act, Chapter XVII containing Sections 138 to 142 was inserted by Amendment Act 66 of 1988. Originally, Section 142 of the NI Act did not provide for the power to condone delay in making the complaint. The proviso to Clause (b) of Section 142 of the NI Act which was inserted by Amendment Act 55 of 2002 provides that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. In a case which arose before the insertion of the proviso to Clause (b) of Section 142, the Kerala High Court in
7. The Supreme Court in Dashrath Rupsingh Rathod''s case (supra) was making a provision to re-file the complaints before the proper Court within 30 days and it was held that if the same was complied with, the complaint would be deemed to have been filed within the time prescribed by law, unless the initial or proper filing itself was time barred. It is well settled that in civil matters when a plaint is returned for presentation before the proper Court, the plaint which is presented before the proper Court shall be deemed to have been filed on the date on which it was so re-filed. That the plaint was filed before the original Court within time, is not relevant for considering the question of limitation. However, Section 14 of the Limitation Act makes provision for excluding the period of limitation spent by the litigant before a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it, in computing the period of limitation for filing the suit. In the Code of Criminal Procedure, Section 470 makes a provision for dealing with similar contingencies. Sub-section (1) of Section 470 Cr.P.C., provides that in computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded. The proviso to sub-section (1) of Section 470 Cr.P.C. states that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Section 470 of the Cr.P.C. contains provisions which are similar to Sections 14 and 15 of the Limitation Act.
8. Now the question which would arise for consideration is whether the direction of the Supreme Court in Dashrath Rupsingh Rathod''s case (supra) to re-file the complaint within 30 days would take away the power of the Court, where the complaint is re-filed, to exercise its jurisdiction under Section 470 Cr.P.C. We are of the view that the jurisdiction under Section 470 Cr.P.C. vested in the Court is not intended to be taken away by the Supreme Court while giving the direction in paragraph 22 in Dashrath Rupsingh Rathod''s case (supra). The only disadvantage which a complainant would suffer by not re-filing the complaint within 30 days, as directed by the Supreme Court is that, in such cases, the complaint shall not be treated as filed within time, as held by the Supreme Court in that case. Still, the complainant could invoke the jurisdiction of the Court under Section 470 Cr.P.C. and also the power of the Court under the proviso to Clause (b) of Section 142 of the NI Act and pray for condonation of delay. The question whether the delay is satisfactorily explained and that the delay can be condoned or whether the period spent by the complainant before a wrong Court can be excluded, are all matters to be considered by the Court and that power can be exercised notwithstanding the non-filing of the complaint within 30 days as directed in Dashrath Rupsingh Rathod''s case (supra). We do not think that taking such a view would contravene the mandate of Article 141 of the Constitution of India as indicated in the reference order.
9. The above view taken by us would lead to setting aside the orders passed by the Courts below and issuing a direction to the Courts below to consider the applications for condonation of delay afresh. However, in view of certain subsequent developments which are discussed below, it is not necessary to issue such a direction.
10. The Negotiable Instruments (Amendment) Ordinance, 2015 (No. 6 of 2015) was promulgated by the President of India further to amend the NI Act. The ordinance was published in the Gazette dated 15/06/2015. As per the Ordinance, sub-section (2) of Section 142 of the NI Act was inserted, which reads as follows:
"(2) The offence under Section 138 shall be inquired into and tried only by a Court within whose local jurisdiction:--
(a) If the cheque is delivered for collection through an account, the branch of the Bank where the payee or holder in due course, as the case may be, maintains the account, is situated: or
(b) If the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Explanation.--For the purposes of Clause (a), where a cheque is delivered for collection at any branch of the Bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the Bank in which the payee or holder in due course, as the case may be, maintains the account."
11. By the said Ordinance, Section 142A was inserted in the Principal Act. Section 142A reads as follows;
"142A.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or directions of any Court, all cases arising out of Section 138 which were pending in any Court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the Court having jurisdiction under sub-section (2) of Section 142 as if that sub-section had been in force at all material times.
(2) Notwithstanding anything contained in sub-section (2) of Section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the Court having jurisdiction under sub-section (2) of Section 142 or the case has been transferred to that Court under sub-section (1), and such complaint is pending in that Court, all subsequent complaints arising out of Section 138 against the same drawer shall be filed before the same Court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that Court.
(3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different Courts, upon the said fact having been brought to the notice of the Court, such Court shall transfer the case to the Court having jurisdiction under sub-section (2) of Section 142 before which the first case was filed and is pending, as if that sub-section had been in force at all material times."
12. It is submitted by the learned counsel for the petitioners that the Negotiable Instruments Amendment Bill, 2015, was introduced in the Lok Sabha and it was passed. Sub-section (2) of Section 142 sought to be introduced in the Principal Act, as per the Bill reads as follows;
"(2) The offence under Section 138 shall be enquired into and tried only by a Court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated."
13. Section 142A sought to be inserted as per the aforesaid Bill contains similar wordings, which are contained in the Ordinance.
14 Article 123 of the Constitution of India provides the power of the President to promulgate Ordinances during recess of the parliament. Article 123 occurs in Chapter III of Part V of the Constitution under the heading ''Legislative Powers of the President''. For the sake of convenience, Article 123 of the Constitution of India is quoted below:
"123. Power of President to promulgate Ordinances during recess of Parliament.--(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance--
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation.--Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void."
15. A Constitution Bench of the Supreme Court in
".....5. Now once it is accepted that the President has legislative power under Article 123 to promulgate an ordinance and this legislative power is co-extensive with the power of the Parliament to make laws, it is difficult to see how any limitation can be read into the legislative power of the President so as to make it ineffective to alter or amend tax laws. If Parliament can by enacting legislation alter or amend tax laws, equally can the President do so by issuing an Ordinance under Article 123. There have been, in fact, numerous instances where the President has issued an Ordinance replacing with retrospective effect a tax law declared void by the High Court or this Court. Even offences have been created by ordinance issued by the President under Article 123 and such offences committed during the life of the Ordinance have been held to be punishable despite the expiry of the Ordinance. Vide:
16. Another Constitution Bench of the Supreme Court in
"19. The next question is whether the post of part-time village officers revive as the Ordinance is not replaced by an Act of the Legislature of the State. This contention of the petitioners is based on Clause (2) of Article 213 of the Constitution. It is argued on their behalf that on the failure of the State Legislature to pass an Act in terms of the Ordinance it should be assumed that the Ordinance had never become effective and that it was void ab initio. This contention overlooks two important factors namely the language of Clause (2) of Article 213 of the Constitution and the nature of the provisions contained in the Ordinance Clause (2) of Article 213 says that an ordinance promulgated under that Article 213 says that an ordinance promulgated under that Article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor but every such Ordinance (a) shall be laid before the Legislative Assembly of the State, or, where there is a Legislative Council in the State, before both the Houses and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council and (b) may be withdrawn at any time by the Governor. It is seen that Article 213 of the Constitution does not say that the ordinance shall be void from the commencement on the State Legislature disapproving it. It says that it shall cease to operate. It only means that it could be treated as being effective till it ceases to operate on the happening of the events mentioned in Clause (2) of Article 213...................................Even if the Ordinance is assumed to have ceased to operate from a subsequent date by reason of Clause (2) of Article 213, the effect of Section 3 of the Ordinance is irreversible except by express legislation.
20. We do not, however, mean to say here that Parliament or the State Legislature is powerless to bring into existence the same state of affairs as they existed before an ordinance was passed even though they may be completed and closed matters under the Ordinance. That can be achieved by passing an express law operating retrospectively to the said effect, of course, subject to the other constitutional limitations. A mere disapproval by Parliament or the State Legislature of an ordinance cannot, however, revive closed or completed transactions."
17. Another Constitution Bench in
"15..........It is therefore, not true to say that, under our Constitution, the exercise of legislative power by the legislature properly so-called is the only source of law. Ordinances issued by the President and the Governors and the laws made by the President or his delegate under Article 357(1)(a) partake fully of legislative character and are made in the exercise of legislative power, within the contemplation of the Constitution.
16............Therefore, in face of the provisions to which we have already referred, it seems to us impossible to accept Shri. Garg''s contention that an ordinance made by the President is an executive and not a legislative act. An ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and is, fortunately and unquestionably, subject to the same inhibitions."
18. It is submitted by the learned counsel appearing for the petitioners that the complaints involved in these Crl RPs were filed in Courts which had jurisdiction, going by sub-section (2) of Section 142 of the NI Act inserted by the Ordinance No. 6 of 2015. The Ordinance is in force. The ordinance promulgated under Article 123 of the Constitution of India shall have the same force and effect as an Act of Parliament. The Ordinance has not ceased to operate as provided in sub-clause (a) of Clause (2) of Article 123 of the Constitution of India, nor was it withdrawn as provided in sub-clause (b) therein. If so, the complaints would have been maintainable before the Courts where they were filed, going by the submission made by the counsel. The non obstante clause in Section 142A of the NI Act, as Inserted by the Ordinance, 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 under sub-section (2) of Section 142 of the NI Act as if that sub-section had been in force at all material times. Ordinance No. 6 of 2015 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. Sub-section (1) of Section 142A of the NI Act would make the position clear that it is clarificatory in nature. If so, it is not necessary to direct the Courts which passed the impugned orders to entertain the complaints and consider the applications for condonation of delay. It would be sufficient if the petitioners are permitted to present the complaints before the Courts where they were originally filed. On the presentation of the complaints before the Courts where they were originally filed, naturally it would be beyond the period of limitation if the date of such presentation is taken as the material date. Section 470 of Cr.P.C. gives ample powers to the Court to exclude the time during which the complainant was prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision. Going by the wording of Section 470, a fresh complaint is required. But the principles underlying Section 470 of the Cr.P.C. will apply in the peculiar facts and circumstances of the case, even if the same complaint is re-presented. In view of the events which took place after the judgment of the Supreme Court in Dashrath Rupsingh Rathod''s case (supra) and the position as clarified in the NI Amendment Ordinance, 2015 (No. 6 of 2015), as well as the direction given by the Supreme Court in paragraph 22 of the Dashrath Rupsingh Rathod''s case (supra), we are of the view that the petitioners can be permitted to present the complaints in the respective Courts where they were originally filed. On such presentation, the Courts shall treat the same having been filed on the date on which the respective complaint was originally filed. The petitioners shall present their respective complaint in the proper Court, namely, the Court where it was originally filed, within one month from today.
The Crl RPs are allowed as above.
