caselaws
Supreme Court of India
Ultra Tech Cement Ltd vs Rakesh Kumar Singh & Anr on 24 April, 2015Author: J.S.Khehar
Bench: Jagdish Singh Khehar, S.A. Bobde
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.
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