Colo Writing Instruments Limited vs Michael Jackson Fashion Ltd

This is a petition filed in terms of Section 561A of the code of Criminal Procedure, (herein after called as the code) for quashing the proceedings

initiated against the petition before the City Magistrate (Magistrate 1st. Class) Srinagar. The complaint lodged is one under Section 138 of the

Negotiable instruments Act, bouncing of a cheque for the reason that payment was stopped by the petitioner who stand arrayed as accused before

the trial court. Admittedly the transactions out of which the debt arose have taken place in Bombay. As reflected by the complaint itself a chain of

litigation was contested by the parties at Bombay and finally it is said the disputes were set at rest with a promise of payment of an amount of Rs.

One Crore thirty seven lakhs (Rs. 1,37,00,000/).

Various cheques towards the liquidation of this consent amount were issued. Out of these, cheque No. 824869 related to an amount of Rs. 12

lakhs. The payment of this cheque was refused, because payment alleged was stopped by the drawee Company. Hence this complaint.

Mr. Manzoor, appearing for the petitioners has taken the following grounds against the prosecution:

i/ That the trial court at Srinagar has absolutely no jurisdiction. The case of action for the criminal prosecution has arisen at Bombay, therefore,

initiation of proceedings at Srinagar will be an exercise beyond/ scope of jurisdiction, therefore, nullity.

ii/That the process issued in the matter in hand violtes the provisions of Section 204(1) of Code of Criminal Procedure, because, no such process

could be issued before a list of witnesses was placed before the Court.

iii/ That the cheque in original has not seen the light of the day and what has been produced before the trial court is only a zerox copy of the

cheque. The trial court, while issuing the process, has committed an error in not asking the respondent/ complainant to produce the cheque in

original before him.

iv/ That the complainant/ respondent does not have any locus to institute the proceedings.

I have heard the learned counsel for the parties extensively and also gone through the complaint as well as the file of the trial court. Before

returning my findings, on the aforementioned grounds, I would like to refer the pith and substance of the code. Mr. Dar, while arguing his case

submitted that this petition in terms of this provision will not lie when only a notice has been issued. He tries to canvass that a notice when issued

calls upon the addressee of the notice to come forward before the court and explain his case as and when he would disclose his trump cards

before the trial court, may be the trial court itself may agree with the petitioner/ accused, therefore, at this stage where the petition has been filed,

the same is not maintainable.

Section 561A arms the High Court with infinite powers to pass appropriate orders in the following exigencies:

i) Where the orders passed under the code are required to be given effect to or,

ii) to prevent abuse of process of any court, iii) or otherwise to secure the ends of justice.

The statue does not lay down any limitation of time on exercise of such power, whenever, the court feels that an order to meet any of the three

exigencies contemplated above is required to be passed, it has the power to pass such an order and no provision of the code will stand in the way

of the court in doing so. Therefore, all what the court, has to see is that the process of the criminal court is not abused and ends of justice are

secured. I am tempted to make a reference to the genesis of law of precedent which was developed in our country on the subject. The basic

judgment delivered by the Apex Court was in M.L. Kapoor's case reported in 1960 SC:866 wherein, broad principles were laid down for

exercise of power under section 561A.

The law of precedent developed gradually and lastly in Rupan Deol Bajaj Vs. K.P.S. Gill reported in AIR 1996 SO 309. The ambit of law for

exercise of jurisdiction under this provision was amplified to seven points. They are laid down as under :

1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety

do not Prima facie constitute any offence or make out a case against the accused.

2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under section 156 (1) of the code except under an order of a Magistrate within the purview of Section

155(2) of the code.

3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the code.

5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can never

reach a just conclusion that there is sufficient ground for proceeding against the accused.

6) Where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceedings is

instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the code of the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

7) Where a criminal proceeding is manifestly attended with malafide and/ or where the proceedings is maliciously instituted with an ulterior motive

for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Even this list of exigencies was held not to

be exhaustive and once again the Apex Court in this case has left the field of discretion wide open for the High Courts to see that bifocal object of

preventing abuse of process of courts and securing the interests of justice is achieved.

I have given this background just to address myself to the facts of the case from this perspectives. After doing so, I come back to the grounds

enunciated above.

The position of jurisdiction of Criminal Code in unequivocally straightjacketed by Section 177 of the code.

Section 177 lays down that every offence shall ordinarily be enquired into and tried by a court within the local limits of whose jurisdiction it was

committed.

Section 138 of the Negotiable Instruments Act is a penal provision in general arising out of the said statue. But, once prosecution is to be

launched, same will be done under the procedural law laid down by the code. Therefore, for purposes of jurisdiction Section 177 (Supra) will have

a commanding position. The cheque in this case was drawn at Bombay, which was issued in Bombay, it was to be cashed at Bombay. If the

allegation of cheque having bounced is correct, such act will be presumed to have taken place in Bombay. Therefore, by every stretch of legal

imagination the prosecution could also lie at Bombay. The respondent's case is that he filed the complaint at Srinagar , because, the suboffice of the

company exists in Srinagar also. The existence of a suboffice at Srinagar, according to the learned counsel for petitioner is not barring the

jurisdiction of a criminal court at Srinagar. The complaint under question has been filed by one Muhammad Ayoob, who claims to be an authorised

agent of the company. Because, he belongs to Srinagar proper. This is how the complaint has been made to land here. However, while dealing

with his locus standi, this position will become more than clear. I find that all these assertions are baseless and the trial court has no jurisdiction.

I am of the opinion that the first thing which the trial court should have noticed was the question as to whether or not it had jurisdiction to try

the matter. Once the jurisdiction is not available as per the statue, and whenever there is a legal bar for prosecution at a particular place, it comes

to be a valid ground for proceeding in terms of Section 561A. Therefore, I uphold this ground.

1(a) of Section 204 in express terms lays down that no summons or warrants shall be issued against the accused under SubSection 1 untill list

of the prosecution witness has been filed. This is a statutory requirement which cannot be done away with or given a golden handshake. The trial

court before issuing notice, should ensure that a list of witnesses is to be furnished to it. Once it was not done, non compliance of the Statute is

made and such non compliance goes a long way in vitiating the issuance of process.

In my opinion it was incumbent upon the trial court to ask the complainantrespondent to file the original cheque before issuing process. I say

so, because, he had to be circumspect before issuing notice. Even, uptil date the original cheque has not seen the light of the day. However, I do

not dwel upon this ground any more, as other points are far stronger.

The last ground, but not the least, relates to the locus of the complainant/respondent. I have seen the zerox copy of the cheque. Under Section

138 of the Negotiable Instrument Act, it is the payee or holder in due course who can file a complaint. The complainant/respondent Muhammad

Ayoob is neither the holder in due course nor is he the payee. Therefore, on the grammatical interpretation of Section 138 he does not seem to

have any locus to file the complaint.

Summing up my observations, I find that, the court below had no jurisdiction to try the matter and the complainant/respondent has no locus to

file the complaint. Therefore, the complaint as also the process issued on the complaint, is vexatious in nature and if allowed to survive the same

shall definitely cause failure of justice and also give rise to abuse of process of the criminal court,

I quash the complaint as also the process issued in the complaint by the trial court. The record of the court below be sent back.