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:
1990 (3) SCC 682 (Constitution Bench of Five Judges)
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.
2011
(7) SCC 639 (Three Judges Bench)
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.
(2014) 7 SCC 340
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
Sandeep Jalan
Advocate
Advocate
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