Afr High Court
Case Details
1 2025:CGHC:521 AFR HIGH COURT OF CHHATTISGARH, BILASPUR Judgment Reserved on: 21/10/2024 Judgment Delivered on: 03 /01/2025 CRMP No. 1709 of 2019 1 - Manoj Kumar Singh S/o S. D. Singh aged about 51 Years R/o Near Steel Bridge Ward No. 4 Kirandul District South Bastar Dantewada Chhattisgarh. (Accused), District : Dantewada, Chhattisgarh versus ... Petitioner 1 - Ranveer Singh Chauhan S/o Shri A . P. S. Chauhan Aged About 51 Years R/o Kirandul District South Bastar Dantewada Chhattisgarh. ( Complainant ), District : Dantewada, Chhattisgarh ... Respondent For Petitioner : Mr Pravin Kumar Tulsyan, Advocate For Respondent : None
Legal Reasoning
Hon'ble Shri Justice Ravindra Kumar Agrawal, J. CAV Judgment 1. The petitioner has filed this criminal miscellaneous petition under Section 482 of Cr.P.C. against the order dated 10-05-2019 passed by the learned Additional Sessions Judge (Naxal), Dantewada, South Bastar (Dantewada), in Criminal Revision No. 24/2018, whereby the order dated 24-03-2018 passed by the learned Chief Judicial Magistrate, Dantewada, in Criminal Case No. 518/2017, dismissal of the application under Section 91 of Cr.P.C. filed by the petitioner/accused is affirmed. 2. The brief facts of the case are that the petitioner is an accused in Criminal Case No. 518/2017, pending before the learned Chief Judicial Magistrate, 2 Dantewada. There was a business transaction dispute between the petitioner/accused and respondent/complainant, and it is alleged in the complaint that against the outstanding amount, the petitioner/accused had issued four cheques in his favour for the total amount of Rs. 8,80,000/-, which was dishonoured by the payee bank on the ground of insufficient balance in the bank account of the petitioner/accused. After due process of legal demand notice, initially, the complaint case under Section 138 of the Negotiable Instruments Act, 1881 (in short “N.I. Act”) before the court of learned Judicial Magistrate First Class, Bacheli, District Dantewada, was filed on 09-03-2015. The said complaint case was registered as Criminal Case No. 27/2015. 3. During the pendency of the said Criminal Case, the amendment to the N.I. Act is enforced, and new Section 142(2) with respect to the jurisdiction of the trial court to try the cases of dishonour of cheques is incorporated with effect from 15-06-2015. Then the learned Judicial Magistrate First Class, Bacheli, District Dantewada, has passed the order on 24-10-2017 and considering the judgement passed by Hon’ble Supreme Court in the case of Dashrath Rupsing Rathod vs. State of Maharashtra (AIR 2014 SC 3519) and Bridgestone India (P) Ltd. vs. Inderpal Singh (2016 Cri. L.J. 553) and also in view of the amended Section 142(2) of the N.I. Act, return the complaint case to the complainant to file it within 60 days before the court of competent jurisdiction at Geedam, as the said cheques have been dishonoured by the bank at Geedam. After returning the complaint case to the respondent/complainant, the proceeding of Criminal Case No. 27/2015, before the learned Judicial Magistrate First Class, Bacheli, is terminated. 4. On 13-12-2017, the respondent/complainant filed his complaint case under Section 138 of the N.I. Act, before the learned Chief Judicial Magistrate, South Bastar, Dantewada, which is registered as Criminal Case No. 518/2017. During the pendency of Criminal Case No. 518/2017 before the 3 learned Chief Judicial Magistrate, Dantewada, on 16-02-2018, the petitioner/accused filed an application under Section 91 of the Cr.P.C. for calling of the record of Criminal Case No. 27/2015 and after tagging it with the present case, the proceeding may be continued from the stage when the earlier case was stopped. 5. The application filed by the petitioner/accused under Section 91 of the Cr.P.C. was dismissed by the learned trial court vide its order dated 24-03- 2018 by holding that the earlier case was returned to the complainant to file it before the court of competent jurisdiction and the proceeding of that case cannot be continued and if the petitioner/accused wants to take the benefit of the evidence recorded in that case, he can obtain a certified copy of the deposition of that case and confront the same with the evidence in the present case. It is also held that the present is a fresh complaint case that has been separately registered, and therefore, the entire proceeding of the complaint case would be drawn in the case. 6. The order dated 24-03-2018 was challenged by the petitioner/accused by filing a Criminal Revision No. 24/2018 before the learned Additional Sessions Judge/Special Court (Naxal), South Bastar, Dantewada, which has also been dismissed vide order dated 10-05-2019. The said order dated 10-05-2019 is under challenge in the present petition. 7. Learned counsel for the petitioner would submit that in the earlier proceeding of Complaint Case No. 27/2015, the evidence of the complainant has been recorded, and therefore, the subsequent proceeding may be continued from the stage when the proceeding of the earlier complaint case was stopped. Recording of fresh evidence would give opportunity to the complainant to cover the lacunae in his evidence, which is reflected in his earlier evidence. He would further submit that the complaint case was returned to the complainant to file it before the court of competent jurisdiction in view of the judgement of Dashrath Rupsing Rathod (supra) and Bridgestone (supra) and 4 also in view of the amendment in the N.I. Act, and therefore, it is not a new complaint but a continuation of the earlier proceeding. It is also submitted by him that recording of fresh evidence would prejudice the defence of the petitioner/accused. he would also submit that Section 142-A of the N.I. Act prescribes the validation of the transfer of the pending cases, and the proceeding should be continued from the stage where it stops. Therefore, the impugned order may be set aside, and the application filed by the petitioner/accused under Section 91 of Cr.P.C. may be allowed. 8. None appears for the respondent/complainant despite service of notice upon him. 9. I have heard the learned counsel appearing for the petitioner and perused the material placed in the petition. 10. It is not in dispute that initially, the respondent/complainant had filed his complaint case under Section 138 of the N.I. Act, before the learned Judicial Magistrate First Class, Bacheli, District Dantewada, which was registered as Criminal Case No. 27/2015. In the said criminal case the evidence of the complainant was recorded and subsequently, vide order dated 24-10-2017, the said Criminal Case No. 27/2015 was returned back to the respondent/complainant to file it before the court of competent jurisdiction at Geedam as the disputed cheques were dishonoured from the bank at Geedam. After the passing of the order dated 24-10-2017, the proceeding of Criminal Case No. 27/2015 was terminated and the complainant took the document back from the court of learned Judicial Magistrate First Class, Bacheli, and subsequently filed his fresh complaint on 13-12-2017 before the learned Chief Judicial Magistrate, Dantewada, District South Bastar, Dantewada, which is registered as Criminal Case No. 518/2017. 11. Although Section 142-A of the N.I. Act validates the transfers of pending cases, but in the present case, it is not a transfer of the pending case and the learned Judicial Magistrate First Class, Bacheli, has returned the complaint 5 case to file it before the court at competent jurisdiction at Geedam. There is a difference in “transfer/made over” and “returning of complaint for filing it before the competent court”. In transfer of the case, the proceeding would not be terminated, whereas, in return of the case, the proceeding would terminate to start again before the competent court. When the complainant received his complaint back to file it before the court of competent jurisdiction, it amounts to the termination of the earlier proceeding. At the time when the complaint case was returned to the complainant, the petitioner/accused had not objected and had not prayed for its transfer to the competent court. The order dated 24-10-2017 has not been challenged by any of the parties. The parties should have prayed for the transfer of the case to the court of competent jurisdiction, but they accepted the return of the complaint case to file it before the court of competent jurisdiction. After filing the complaint case before the learned Chief Judicial Magistrate, Dantewada, it is registered as a fresh complaint as Criminal Case No. 518/2017. 12. Section 192 of the Cr.P.C. (Section 212 of Bhartiya Nagarik Suraksha Sanhita, 2023) provides for making over the cases to competent Magistrates for the trial of the cases which reads as under:- Section 192 Making over of cases to Magistrates:- "(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial." 13. It is also not the case where the learned Chief Judicial Magistrate, Dantewada, has exercised its jurisdiction conferred under Section 410 of the Cr.P.C. (Section 450 of BNSS, 2023) and made over the case to the court of any other competent Magistrate or tried the case by himself. In the present case, the complaint case was returned back to the complainant to file it 6 before the court at competent jurisdiction, and the proceeding of that complaint case was terminated. 14. During the pendency of the complaint case before the learned Chief Judicial Magistrate, Dantewada, the petitioner/accused had filed an application under Section 91 of Cr.P.C. for calling of the records of Criminal Case No. 27/2015 and continue the proceeding of the case from the stage when it was returned back to the complainant. The prayer made by the petitioner/accused by way of the application of Section 91 of Cr.P.C. does not have any force because the reason that (1) the application of Section 91 of Cr.P.C. is to be filed for issuance of summons for the production of documents or another thing from the person in whose possession said documents or other thing is having, (2) the petitioner/accused prayed for continuation of the proceeding of criminal case from the stage when the earlier case was returned back to the complainant which is wholly impossible because the proceeding of that criminal case is terminated and the same cannot be reopened, (3) return of the earlier complaint case to the complainant for filing it in the court of competent jurisdiction cannot be termed as the transfer or made over the case from one court to another and (4) before the learned Chief Judicial Magistrate, Dantewada, fresh complaint case is registered. 15. In the matter of “Oil and Natural Gas Corporation Limited vs. Modern Construction and Company”, 2014 (1) SCC 648, although it was a civil proceeding but relevant in the present case also, the Hon’ble Supreme Court has held in para 17 that 17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court However, after presentation before the court of competent jurisdiction, the g plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same." 7 16. In the matter of “Dashrath Rupsingh Rathod vs. State of Maharashtra”, 2014 (9) SCC 129, the Hon’ble Supreme Court has held in para 22 that:- 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 tune prescribed by law, unless the initial or prior filing was itself time-barned." 17. In Dashrath Rupsing Rathod case (Supra), the Hon’ble Supreme Court has held 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 N.I. Act, the proceeding will continue at that place. In the case in hand, the evidence was started, and some of the witnesses have been examined therefore, instead of taking back the case or returning the case, the proceeding of the earlier complaint would be continued before the learned Judicial Magistrate First Class, Bacheli and the complainant ought not to take it back for filing it before another court. Once the earlier complaint has been taken back or returned to the complainant, the proceeding cannot be reviewed and cannot be restored from the stage when it was returned. 18. After returning of the earlier complaint case, it is filed before the court at 8 Dantewada, and the same is registered as a fresh complaint. The petitioner/accused has an apprehension that the lacunae in the evidence of the witnesses recorded in Criminal Case No. 27/2015 will be fulfilled by the witnesses if their evidence is again recorded. Though the apprehension of the petitioner/accused cannot be avoided, but he has every right to cross- examine the witness and to confront his previous evidence/statement. Further, the order dated 24-10-2017 passed by the trial court in Criminal Case No. 27/2015 has not been challenged by any of the parties. 19. For the aforesaid reasons, this court does not find any good ground to allow the petition and grant relief to the petitioner. Accordingly, the petition is liable to be and hereby dismissed. 20. Considering the fact that Criminal Case No. 518/2017 is pending since 2017, the learned trial court is directed to expedite the trial and shall make all its endeavours to conclude the same as early as possible. Sd/- (Ravindra Kumar Agrawal) Judge Alok