Javeed Ahmad Bhat vs Sona Ullah Sheikh

On hearing learned counsel for the petitioner and going through the material on record, it appears that proceedings have been initiated against the present petitioner in the Court of learned Judicial Magistrate, Shopian. The petitioner herein has appeared before the said Court and submitted his bail bonds for ensuring his presence to face trial. He has later violated the conditions of bail which has lead the Court to forfeit his bail in terms of order passed by the learned Judicial Magistrate, Shopian, on 18.07.2014, annexed with the petition ( as annexure VI). Thereafter the presence of the petitioner has been sought to be ensured by issuance of coercive measures and so non-bailable warrants have been issued.

The petitioner is canvassing in terms of instant petition that the learned trial Court had no jurisdiction to entertain the complaint. A reference to objections said to have been filed before trial Court is also made, wherein it had been also stated that payment covered by the cheques referred in the complaint stands paid by the petitioner herein. To put it in the words of petitioner as narrated in the objections filed by the petitioner herein before the trial Court:

(i) That it is worthwhile to submit here that the complainant has taken the money from the accused which he is claiming in the complaint. The complainant and the accused were having business transactions with each other and were having friendly relations with each other. The accused was having much trust and faith on the complainant, but distrust and faith was lashed out, when the accused was approached by the complainant for giving him to amount of Rs. 80,000/-. The accused issued a cheque in favour of the complainant, but the complainant requested the accused that he is dire need of the amount, so instead of the cheque he may be give a cash amount to the tune of Rs. 80,000/-

(ii) That then the accused assured the complainant that he will do the best for arranging the amount claimed to be given to the complainant in cash. The complainant on the same day, when the cheque was given to the accused telephoned the complainant that now the amount has been arranged by the accused and take the said amount and bring back the issued cheque.

(iii) That on the same day the accused has given the cheque amount to the complainant and to this effect the complainant has put his signatures on the ledger (receipt). But when the accused demanded the cheque back, the complainant assured him that he will returned the same within one week. But after some time when the accused demanded the said cheque back again, the complainant replied that he has lost the same.

Learned counsel for the petitioner has placed reliance on the judgments of Hon'ble Apex Court titled Vinay Kumar Sailendra v. Delhi High Court, reported in (2014) 10 SCCC 708 & Dashrath Rupsingh Rathod v. State of Maharashtra & Another, reported in 2014 AIAR (Criminal) 835 in support of his contentions.

In Vinay Kumar Sailendra v. Delhi High Court, their lordships observed:

"The legal position on the subject was summed up in the following words:

To sum up:

58.1(i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.

58.2(ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138.

58.3(iii) The cause 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(iv) The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act.

58.5(v) 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 proviso accrues to the complainant.

58.6(vi) 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(vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read withSection 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof."

In the light of the above pronouncement of this Court we have no hesitation in holding that the issue of a notice from Delhi or deposit of the cheque in a Delhi bank by the payee or receipt of the notice by the accused demanding payment in Delhi would not confer jurisdiction upon the Courts in Delhi. What is important is whether the drawee bank who dishonoured the cheque is situate within the jurisdiction of the Court taking cognizance. In that view, we see no reason to interfere with the order passed by the High Court which simply requires the Magistrate to examine and return the complaints if they do not have the jurisdiction to entertain the same in the light of the legal position as stated in Harman's case (supra). All that we need to add is that while examining the question of jurisdiction the Metropolitan Magistrates concerned to whom the High Court has issued directions shall also keep in view the decision of this Court in Dashrath's case (supra)."

In Dashrath Rupsingh Rathod v. State of Maharashtra & Another, their lordships observed:

" 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 casual 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 the every Magistracy is inundated with prosecutions under Section 138 NI 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 the NI Act."

The cognizance taken long back in the year 2008 and thereafter steps taken for ensuring presence is thus being sounded to be bad. Learned counsel for the petitioner has also made reference of the objections which are stated to have been submitted before the learned trial Court on 05.11.2008. No explanation, however, tendered as to how the petitioner fared for last more than ten years when the proceedings stand initiated and he appeared before the trial Court. It is also not being clarified that as to how the Court proceeded in the matter after his appearance before the trial Court and when as per the statute he had to be made conversant allegations levelled in the complaint and as to why he will not be punished. Having noted these circumstances and facts in which proceedings have been initiated and are pending before the trial Court, the prayer of petitioner is required to be examined as to whether there is scope for entertaining the instant petition.

Heard and perused the material on record.

It may be proper herein to refer to principles of law laid down by their lordships of Hon'ble Apex Court in (i) Pratibha v. Rameshwari Devi & Others", reported in 2007 (12) SCC 369 and (ii) State of Maharashtra v. Arun Gulab Gawali", reported in AIR 2010 SC 3762, to examine the merits of petition.

(i) In case referred at S. No. (ii), Pratibha v. Rameshwari Devi & Others, the Apex Court inn para 10 of the judgment has observed that before parting with this judgment, "we may also remind ourselves that the power under Section 482 of the Code has to be exercised sparingly and in the rarest of rare cases".

(ii) In case referred at S. No. (iii), State of Maharashtra v. Arun Gulab Gawali, the Apex Court in para 12 of the judgment has observed that the power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR/Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage not it can 'soft-pedal the course of justice' at a crucial stage of investigation proceedings. The provisions of Articles 226, 227 of Constitution of India and Section 482 of the Coe of Criminal Procedure, 1973 (hereinafter called as 'Cr. PC.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers."

Considering the matter in the light of principle of law laid down in the above referred cases, I am of the opinion that the case in hand is not one which can be treated to be rarest of rare one and the petition in terms of section 561-A Cr. PC, to be entertained and thereof proceedings quashed. After causing his appearance or petitioner could challenge the initial order of Magistrate before higher forum, if permissible. May be, he may have earlier made an attempt to avail the same, however without any success. It is no more res-integra, power is to be exercised sparingly and that too for advancing the cause of justice. It would be quite absurd to ask the High Court to intervene after such a long gap or to entertain a counter version about the allegations levelled in complaint and to exercise inherent powers on this base under law. The learned trial Court has to examine the veracity of the allegations in the complaint and the counter version as projected by the petitioner in objections. This Court should in no case be expected to act as a trial Magistrate or a Court of appeal and return finding on questions of facts noted above.

Having regard to what has been stated above, I am of the opinion that no case is made out for exercise of power under Section 561_A Cr. PC. Accordingly, there appears to be no merit and substance in the petition of the petitioner. The petition entails dismissal and is, accordingly, dismissed in limini.

A copy of this order be sent to learned Judicial Magistrate First Class, Shopian.