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2022 (10) TMI 261
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....12 passed by the learned J.M.F.C.,Quepem in Criminal Case No.103/NI/2010/B was quashed and set aside and the respondent/accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act,1881. 3. Criminal Appeal No.21 of 2018 is challenging the judgment dated 17/06/2017 in Criminal Appeal No.51 of 2013 passed by the learned Additional Session Judge, South Goa, Margao thereby allowing the said appeal and accordingly quashing and setting aside the judgment of conviction passed by the learned Judicial Magistrate First Class, Quepem in Criminal Case No.38/NI/2009/B. The respondent/accused was accordingly acquitted for the offences punishable under Section 138 of the Negotiable Instruments Act. 4. In both, the matters appellant is the same i.e. The Quepem Urban Credit Society whereas the respondents are different. However, since common grounds are raised, both these matters are taken together for disposal. 5. Heard Mr. Abhay Nachinolkar, learned Counsel for the appellant, Mr. A.D. Bhobe, learned Counsel for respondent No.1 and Mr. Gaurish Nagvenkar, Additional Public Prosecutor for respondent No.2. 6. With the assistance of the learned Counsel appear....
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.... file a complaint on the basis of same resolution, the learned Additional Sessions Judge observed that the Magistrate at Quepem had no territorial jurisdiction. He submitted that such findings are given based only on the decision of the Hon'ble Apex Court in the case of 'Harman Electronics (P) Ltd. V/s National Panasonic India Ltd. (2009) 1 All MR 479. He then claimed that the learned Additional Sessions Judge did not consider the findings of the learned Magistrate which are based on the decision of the Apex Court in the case of K. Bhaskaran v/s. Shankaran Vaidhyan Balan And Another (1999) 7 SCC 510. He then claimed that the learned Additional Sessions Judge failed to consider the decision of the Apex Court in the case of Dashrath Rupsingh Rathod v/s. State of Maharashtra and Another (2014) 9 SCC 129 as before deciding the said criminal appeal, the decision in the case of Dashrath Rathod (supra) was delivered. He, therefore, submitted that the non-suiting of the complainant on the so-called ground of lack of jurisdiction of the learned Magistrate was totally erroneous, in view of the directions issued by the Apex Court in the case of Dashrath Rathod(supra). The proper cours....
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....authority to PW1 to lodge criminal proceedings. 15. Learned counsel Shri Bhobe then pointed out that the Power of Attorney produced on record specifically shows the power to initiate the proceedings. However, such Power of Attorney was executed in favour of PW1 on the basis of the resolution passed by the Managing Committee wherein no such power to initiate proceedings is found. Thus, according to him, such Power of Attorney is bad in law as the source on which it was issued does not give such power to initiate such proceedings. 16. Learned counsel Shri Bhobe then submitted that in the case of Harman (supra), the Hon'ble Apex Court clearly observed that the Court will not have jurisdiction only because demand notice is issued within the jurisdiction of such Court. He, therefore, submitted that even though the case of Harman (supra) nowhere distinguishes earlier decision in the case of Bhaskaran (supra), which is of the coordinate Bench, the doctrine of choice applies and which the learned Additional Sessions Judge has opted to consider the law laid down by the Apex Court in the case of Harman (supra) no fault can be found with such observation as both these judgments are bind....
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....ection 138 of the Negotiable Instruments Act since the accused failed to pay the cheque amount within the stipulated time. On 27.03.2012 the learned Magistrate at Quepem found the accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act. On 07.04.2012 the learned Magistrate passed a sentence against the accused and directed him to undergo simple imprisonment for a period of one month and to pay compensation of Rs. 1,50,000/- and in default to undergo simple imprisonment for a period of one year. Being aggrieved by the said judgment and conviction, the accused preferred appeal on 30.04.2012 before the Sessions Court bearing Criminal Appeal No.48 of 2012. On 21.10.2013 learned Additional Sessions Judge vide its impugned judgment allowed the said appeal and thereby quashed and set aside judgment and conviction passed by the learned Magistrate in Criminal Case No.103/NI/2010/B and accordingly acquitted the accused. Accordingly, the complainant preferred an appeal bearing Criminal Appeal No.11 of 2015 before this Court. 22. The brief facts in Criminal Appeal no.21 of 2018 are as under:- The accused by name Nilkhant B. Velip availed loan from the co....
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....s Attorney Shri Satyawan Naryan Velip on the basis of the Deed of Power of Attorney duly executed on 10.10.2007 as per the resolution passed in the Board of Directors' meeting dated 08.09.2007. 27. Thus, both these complaints filed by the Society against the accused persons clearly show averments that the Society is represented by its Attorney on the basis of the power of attorney which is executed on the basis of a resolution of the Board of Directors. 28. The learned counsel Shri Nachinolkar appearing for the appellant submitted that the resolution passed by the Board is itself sufficient to give power to the said attorney to initiate proceedings and there is no need even to consider the power of attorney executed on behalf of the Society in favour of such attorney. He submitted that the power of attorney could be ignored in view of a specific resolution passed by the Board. 29. Thus, it is necessary to quote the resolution of the Board of Directors so as to interpret the wording in it and to find out whether any specific power was given to PW1 in both the matters by the Society to launch proceedings. 30. The resolution of the appellant Society in Criminal Appeal no.11 of....
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.... of a resolution passed in the meeting of the Board of Directors of the said Society. In the present matters such resolution exists and is produced in both matters through PW1. However, it is the main contention of the accused persons that there is no whisper in such resolution thereby granting power to the representative to institute criminal proceedings for and on behalf of the Society against third parties. Whereas it has been forcefully submitted on behalf of the complainant Society that the resolution itself gives clear and sufficient powers to the said representative mentioned therein to institute criminal proceedings for and on behalf of the Society. 33. The main thrust on behalf of the accused persons is on the interpretation which is adopted by the learned Additional Sessions Judge in both the matters thereby observing that the words "proceed all the cases" as found in the resolution cannot be interpreted otherwise but has to be considered that the authority is given to proceed in all cases which are pending as on the date of resolution. In other words, both the learned Additional Sessions Judges accepted the contentions of the accused persons that such resolution nowhere....
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....new proceedings to be initiated but to mean that the power is to proceed with the pending matters. 38. In order to find out the actual meaning of the word "proceed", learned counsel Shri Nachinolkar placed reliance on the dictionary meaning and more particularly the Oxford Reference Dictionary wherein the word "proceed" is defined as under:- 'proceed.v1. begin a course of action. 2. go on to do something. 3 (of an action) continue. 4. move forward.' 39. He therefore submitted that the dictionary meaning of the word "proceed" has to be adopted which is the actual meaning as stated above. Therefore, according to him, both the learned Additional Sessions Judge erred in considering the meaning of word "proceed" and arrived at a wrong conclusion. 40. Learned counsel then submitted that in the case of M/s Harman Electronics (supra), the Hon'ble Apex Court considered the definition of the wording 'giving of notice' and how it is distinguished from 'receiving of the notice' as defined in the Black's Law Dictionary which is found in paragraph no.10 of the above decision. He, therefore, submitted that there is nothing adverse in finding out the dictionary....
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...., i.e. The Goa State Co-op Credit Society Ltd being a body corporate can act only by resolution passed by the Directors in its meetings. In that case there was no resolution passed by the said Bank in favour of its Managing Director authorising him to appoint any person to prosecute the defaulters. Similarly, there was no resolution passed by the Bank in favour of Mr. Shashikant Savoikar or any other person authorising them to file complaints or to depose in support of it. Thus, the facts stand on its own feet in the said case which are distinguishable from the present matter. Therefore, the said decision is not helpful at all as tried to be projected by the respondent. 44. In the case of Shri Ashok Pagui (supra), again the facts are totally different. M/s. Agencia Real Canacona Pvt. Ltd. being a company was required to resolve in the Board of Directors meeting to grant any authority to any of the persons to file complaints. Instead of that, one of the Directors granted Power of Attorney to another person to file the complaints and to represent the company which has been rejected by this Court as found in paragraph 21. This decision also is not helpful as there was no resolution p....
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....vanced on behalf of the learned counsel for the appellant Mr. Nachinolkar is only restricted to the resolution dated 11.11.2009 and not with regard to the Power of Attorney specifically issued in favour of said Surendra. Therefore, in this impugned judgment, there is no discussion with regard to the word "proceed" and whether it only amounts to 'to proceed with pending cases'. 48. The impugned judgment in Criminal Appeal No.51 of 2013 (Nilkhant B. Velip v/s. Quepem Urban Co-op. Credit Society Ltd.), decided by learned Additional Sessions Judge, Margao vide its judgment dated 17.06.2017, deals with same aspect but with more reasoning. While discussing point no.2 as to whether the complainant/witness was having authority to launch prosecution, the wordings in the resolution passed in favour of Satyawan Narayan Velip is discussed in paragraph 28 onwards and thereafter the word "proceed" is considered in paragraph no.29 as under:- '29. Therefore, resolution did not give powers to Shri Satyawan Narayan Velip to file or initiate criminal cases, though it gives him power to proceed in all the cases and, as submitted by the learned Adv. S.M. Tendulkar, the word "proceed" pre....
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....nce a document is required to be in writing and recorded accordingly, has to be read and not oral evidence given either in favour or against it, trying to interpret it contrary to the meaning of the document itself, unless it is claimed that such document or the contents therein were recorded, by playing fraud. Therefore, such arguments will not hold good and the contents of the resolution are required to be interpreted by giving its true meaning. 54. Having said so, the resolution passed in both the matters in favour of the complainant/witness of the Society are valid and specifically giving power to launch criminal action. Therefore, rejecting the complaint on this ground by the learned appellate Court is not at all justified. In the result, such observations need to be quashed and set aside. Point no.1 is, therefore, answered in affirmative. 55. The learned Additional Sessions Judge Margao (Criminal Appeal No.51 of 2013) decided on 17.06.2017 observed that the Judicial Magistrate First Class had no territorial jurisdiction to decide the said complaint, which is challenged in the present appeal (Criminal Appeal No.21 of 2018). 56. The learned Additional Sessions Judge while de....
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..... When the learned Magistrate at Quepem decided the said criminal case No.38/NI/2009, it had discussed about the observations of the Apex Court in the case K.Bhaskaran to assume jurisdiction on the ground that notice was issued from Quepem. It is no doubt true that in the case of Harman (supra), the Hon'ble Apex Court has observed that jurisdiction of the Court for launching prosecution cannot be assumed from the place from which notice is issued though sending notice is one of the ingredients for maintaining complaint. 59. The Hon'ble Apex Court in the case of Dashrath Rathod (supra) discussed above 2 judgments of coordinate Bench alongwith other decisions and in order to clarify further, while partly affirming the observations in the case of K. Bhaskaran (supra) observed in paragraphs 19 to 22 as under:- '19. 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....
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....ffence contemplated therein stands committed on the dishonour of the cheque, and accordingly JMFC at the place where this occurs is ordinarily where the complaint must be filed, entertained and tried. The cognizance of the crime by JMFC at that place however, can be taken only when the concomitants or constituents contemplated by the section concatenate with each other. We clarify that the place of the issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial jurisdiction of the complaints even though non-compliance therewith will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general of the NI Act. The vindication of this view is duly manifested by the decisions and conclusion arrived at by the High Courts even in the few cases that we shall decide by this judgment. We clarify that the complainant is statutorily bound to comply with Section 177, etc. of CrPC and therefore the place or situs where the Section 138 complaint is to be filed....
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.... 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. 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. 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. The facts constituting cause of action d....
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.... v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 : 1999 SCC (Cri) 1284] to justify institution of such cases far away from where the transaction forming basis of the dishonoured cheque had taken place. It is not uncommon to find complaints filed in different jurisdiction for cheques dishonoured in the same transaction and at the same place. This procedure is more often than not intended to use such oppressive litigation to achieve the collateral purpose of extracting money from the accused by denying him a fair opportunity to contest the claim by dragging him to a distant place. Bhaskaran case could never have intended to give to the complainant/payee of the cheque such an advantage. Even so, experience has shown that the view taken in Bhaskaran case permitting prosecution at any one of the five different places indicated therein has failed not only to meet the approval of other Benches dealing with the question but also resulted in hardship, harassment and inconvenience to the accused persons. While anyone issuing a cheque is and ought to be made responsible if the same is dishonoured despite compliance with the provisions stipulated in the proviso, the court ought to avoid an interp....
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....g the said case for want of territorial jurisdiction, was, therefore, not proper as complaint was filed, entertained and decided on the basis of the law laid down by the Apex Court in the case of K. Bhaskaran (supra). It was expected that directions given by the Apex Court in the case of Dashrath Rathod (supra) and more specifically in paragraph no.22 could have been followed instead of directly non-suiting the complaint. 63. Having said so, the proper course is to quash and set aside the judgment passed by the learned Magistrate at Quepem in Criminal Case No.38/NI/2009 and to remand it to the said Court with directions to transfer the said case to the learned Magistrate having territorial jurisdiction, i.e. the Court at Ponda. The approach of the Court must be justice oriented. Considering the above observations, on both counts, the impugned judgment in Criminal Appeal No.51 of 2013 dated 17.06.2017 needs to be interfered with by quashing the same. The directions in the case of Dashrath Rathod (supra) needs to be followed by remanding the matter to the learned Magistrate at Quepem and directing the said Magistrate to transfer/forward the case papers through the Sessions Judge, to....