In limited understand of things, I write…
And, I try to put it simple and straight….
1. The dishonor of cheque is made a punishable offence by virtue of section 138 of Negotiable Instruments Act, 1881.
2. The offences are tried under the Criminal Procedure Code of 1973.
3. Section 179 of said Code reads as –
Offence triable where act is done or consequence ensues: When an act is an offence, due to anything, which has been done, and of a consequence, which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.
4. The plain reading of Section 179 of said Code would suggest that the alleged commission of an offence, may be inquired into or tried by a court within whose local jurisdiction the consequence has ensued.
5. In dishonor of cheques, unarguably, the consequences ensues at the place of the residence / place of business of the payee.
6. Therefore, the complaint can be filed in the territorial jurisdiction of those courts where the Payee resides or carries on business. The facts, where the branch of drawer or payee Bank is situated, or the place of issuance of notice, or the "stage of completion of offence”, or the "accrual of cause of action" is wholly immaterial, in this respect.
7. The reason: The Jurisdiction conferred upon Courts by Legislature cannot be taken away by Courts' rulings; or let the SC say, we can take away the jurisdiction of Courts by our rulings.
8. Without prejudice to the generality of argument advanced hereinbefore, it is well settled that the Courts cannot confer jurisdiction upon themselves if they don’t have; nor the Courts can refuse to exercise the jurisdiction vested in them.
9. In the instant case, a curious situation has arisen, wherein the Legislature / Parliament unambiguously says to the Magistrate sitting in the Court at Bombay – Mr. Magistrate you can inquire into or try an offence, if the Complainant, is residing in Bombay or carries on business in Bombay, and alleges that consequence has ensued to him by reason of a crime committed by Mr. X sitting in Delhi. The Apex Court says to the same Magistrate – Mr. Magistrate, you can’t.
The golden rule of construction: In the words of LORD SIMON of GLAISDALE – Parliament is prima facie to be credited with meaning what is said in an act of Parliament; the drafting of Statutes, so important to a People, who hope to live under the rule of law, will never be satisfactory unless Courts seek, whenever possible to apply “the golden rule of construction”, that is to read statutory language, grammatically and terminologically, in the ordinary and primary sense, which it bears in its content, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction, stultification, of statutory objective, the language may be modified sufficiently to avoid such disadvantage, though no further”. The SC approved the said principle – AIR 2002 SC 1351 : (2002) 3 SCC 722; (2007) 2 SCC 265, Para 16 : AIR 2007 SC 1040.
Purported harassment of Accused: This whole controversy arises, for one of the reason / premise that “Accused are purportedly harassed” by the filing of Complaints at places beyond their ordinary place of residence / business. The said supposition is misconceived, for more than one reason.
There is a presumption under the law that all official and judicial acts are duly performed (Illustration (e) to section 114 of Indan Evidence Act, 1872).
Therefore, it should be presumed that the Judicial Magistrate, at the time of taking cognizance of offence u/s 200 of CrPC, 1973, and before issuing Summons against the Accused u/s 204 of CrPC, 1973, satisfies himself that there are sufficient grounds / material against the Accused, to proceed against him; notwithstanding the reality, that processes / summons u/s 138 proceedings are issued mechanically. Therefore, the problem lies with the “lack of due scrutiny before issuance of summons”.
Where the language of the section clearly expresses the intention of the Legislature, it must be given effect to, regardless of the consequences, and the court cannot consider the fact that such effect causes hardship or inconvenience. Inconvenience is never considered as a decisive factor in interpreting a statute. State v. Ramjivan Kaluram, AIR 1962 Bom 8, 12; State of Punjab v. Ajaib Singh, 1953 SCR 254, 264 (Das J.); Mysore State Electricity Board v. Bangalore Woolen etc mills Ltd AIR 1963 SC 1128. Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object.[ R Balakrishnapillai V St Of Kerala, (2003) 9 SCC 700].
One of the finest judgment (2012) 3 SCC 387 on principles of interpretation of Statutes, I have found –
Para 28: Now, the interpretation of a legal provision and its application to a set of facts are two different exercises requiring different approaches.
28.1: "Interpretation" means the action of explaining the meaning of something. For interpreting a statutory provision, the court is required to have an insight into the provision and unfold its meaning by means of the well-established canons of interpretation, having regard to the object, purpose, historicism of the law and several other well-known factors. But, what is important to bear in mind is that the interpretation of a legal provision is always independent of the facts of any given case.
28.2: "Application" means the practical use or relevance (of something to something); the application of a statutory provision, therefore, is by definition case related and as opposed to interpretation, the application or non-application of a statutory provision would always depend on the exact facts of a given case. Anyone associated with the process of adjudication fully knows that even the slightest difference in the facts of two cases can make a world of difference on the question whether or not a statutory provision can be fairly and reasonably applied to it.
Law of Per In curiam:
Para 37: Mr Venugopal would submit that the Judgement in Sundara Money case and for that matter the subsequent decisions in the line are per incuriam for two reasons: (i) that they failed to apply the law laid down by the Constitution bench of this Hon ble court in HariprasadShukla case and (ii) for the reason that they have ignored the impact of two of the provisions introduced by the Amendment Act of 1953 along with the definition of "retrenchment" in sec. 2(oo) and sec. 25-F namely, sec. 25-G and 25-H.
Para 43 As regards the judgments of the Supreme court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme court may not be said to "declare the law" (under Art.141) on those subjects if the relevant provisions were not really present to its mind.
61 "per incuriam" are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.
20. In this regard, we may usefully refer to a passage from A.R. Antulay v. R.S. Nayak, (AIR 1988 SC 1531) (Seven Judges Bench) wherein Sabyasachi Mukharji, J. (as his Lordship then was) observed thus: -
˜Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong