ULTRA TECH CEMENT LTD Vs. RAKESH KUMAR SINGH & ANR

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 717 of 2015, Judgment Date: Apr 24, 2015

                                                             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.
      3.         The question is whether the Metropolitan  Magistrate,  11th
Court, Calcutta, where the appellant  initiated  proceedings  under  Section
138 of the  Negotiable  Instruments  Act,  1881,  had  the  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 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.”

                                         (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 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  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 cross-examined.  The  Metropolitan  Magistrate,
11th 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
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 Magistrate, 11th 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)





                                                ..........................J.
                                                                (S.A.BOBDE)
NEW DELHI;
APRIL 24, 2015.