Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.717 OF 2015
(Arising out of SLP(Crl.)No.8540 of 2013)
ULTRA TECH CEMENT LTD .......APPELLANT
VERSUS
RAKESH KUMAR SINGH & ANR .......RESPONDENTS
J U D G M E N T
J.S.KHEHAR, J.
1. Heard learned counsel for the parties.
2. Leave granted.
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3. The question is whether the Metropolitan Magistrate, 11
Court, Calcutta, where the appellant initiated proceedings under
Section 138 of the Negotiable Instruments Act, 1881, had the
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jurisdiction to entertain the same.
4. Learned counsel for the rival parties have invited our
attention, to the judgment rendered by a three-Judge Bench of this
Court in Dashrath Rupsingh Rathod vs. State of Maharashtra and
another, (2014) 9 SCC 129, and have drawn our attention to the
following observations recorded therein:
“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
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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/refiled 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.”
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(emphasis is ours)
5. On a perusal of the conclusions drawn in paragraph 22,
extracted hereinabove, we feel that the proceedings initiated prior
to the rendering of the judgment in Dashrath Rupsingh Rathod’s case
(supra) on 01.08.2014, will be preserved at the place they were
filed, only when “post the summoning and appearance of the alleged
accused, the recording of evidence has commenced as envisaged in
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Section 145(2) of the Negotiable Instruments Act, 1881”. In
order to further explain its intent, the judgment clarifies, that
merely leading of evidence at the pre-summoning stage, either by
way of affidavit or by oral statement will not exclude
applicability of the judgment in Dashrath Rupsingh Rathod’s case
(supra). The above judgment, thereby seeks to confirm the position,
that only when recording of evidence at the post-summoning stage
had commenced, before 01.08.2014 (the date on which the judgment in
Dashrath Rupsingh Rathod’s case was pronounced), such proceedings
would not be dislodged, the declaration of law, on the subject of
jurisdiction, in Dashrath Rupsingh Rathod’s case (supra).
6. Having given our thoughtful consideration to the dispute
in hand, and having examined the orders placed on the record of
this case collectively as Annexure P-5, we are of the view that the
appellant recorded its statement at the pre-summoning stage by
filing an affidavit on 16.02.2007. Consequent upon the filing of
the aforesaid affidavit, the summons were issued to the
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accused-respondent No.1 for 21.04.2007. On 21.07.2008, the accused
was examined under Section 251 of the Code of Criminal Procedure,
and the substance of the allegations were read over to him,
whereupon, the accused having pleaded not guilty, the matter was
adjourned for recording evidence on 31.12.2008. On 22.04.2009, the
appellant filed an affidavit to be treated as the
statement-in-chief of PW-1, whereupon, PW-1 was to be
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cross-examined. The Metropolitan Magistrate, 11 Court, Calcutta,
then posted the matter for 22.07.2009 for the cross-examination of
PW-1. The date for the cross-examination of PW-1 was first
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adjourned to 15.12.2009 and thereafter successively to 25.05.2010,
21.09.2010, 25.07.2011 and finally to 09.12.2011.
7. In view of the factual position noticed hereinabove, we
are satisfied that evidence had commenced in the present matter, as
envisaged by Section 145(2) of the Negotiable Instruments Act,
1881, in terms of the clarification recorded in paragraph 22, in
Dashrath Rupsingh Rathod’s case (supra). That being the factual
position, we are of the view, that the instant appeal is liable to
be allowed. The same is accordingly allowed. The Metropolitan
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Magistrate, 11 Court, Calcutta will be deemed to have jurisdiction
to entertain the controversy arising out of the complaint filed by
the appellant under Section 138 of the Negotiable Instruments Act,
1881. The said Court shall accordingly proceed with the matter, in
consonance with law.
..........................J.
(JAGDISH SINGH KHEHAR)
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..........................J.
(S.A.BOBDE)
NEW DELHI;
APRIL 24, 2015.
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