Canbank Fin. Services Vs. Pallav Sheth
EmailAppeal: Civil Appeal Nos. 2068-2069 of 1996
Petitioner: Canbank Fin. Services
Respondent: Pallav Sheth
Apeal: Civil Appeal Nos. 2068-2069 of 1996
Judges: B.N. KIRPAL, RUMA PAL & BRIJESH KUMAR, JJ.
Date of Judgment: Apr 19, 2001
Head Note:
PRACTICE AND PROCEDURE/CRIMINAL LAW
Criminal Procedure Code, 1973
Section 201 with Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 – Section 7 and Negotiable Instruments Act, 1881 – Section 138 – Complaint against bouncing of cheques before Special Court – Transaction outside the period 1.4.91 to 6.6.92 for which Special Courts were created – Holding that it had no jurisdiction to try the case, discharged the accused – Justification. Held that the proper course was to follow procedure under Section 201 and return the complaint. Orders set aside. Complaint to be continued as filed fresh before CMM.
Held:
Once the court had come to the conclusion that it had no juris-diction to decide the complaint, then by virtue of Section 201 of the Code of Criminal Procedure the complaint should have been returned to be presented in the proper court. The only other order which could have been passed was that bond furnished in lieu of appearance could have been discharged. But it could not have been observed that the accused was discharged, which could have been interpreted as meaning that there was no merit in the complaint of the appellant. Not having tried the case on merits, no observation could be made which could be understood in this light. (Para 7)
JUDGEMENT:
ORDER
Civil Appeal Nos. 2068-2069 of 1996
1. After hearing the Counsel for the parties and without going into the correctness of the decision of the Special Court, we direct the XXXVIIth Additional Metropolitan Magistrate, Esplanade to take up and dispose of Case Nos. 23(S)/1993 and 25(S)/1993 entitled Canbank Financial Services Limited v. Pallav Sheth. The next date of hearing is 30th July, 2001. The said court will hear the cases everyday till the cases are disposed of and no adjourn-ment shall be granted on any ground whatsoever. The said court shall dispose of the said cases on or before 30th November, 2001 and report its compliance to this Court
2. The appeals are disposed of.
Criminal Appeal. No. 672 of 1996
3. The appellant had on 21st July, 1993 filed a complaint under Section 138 of the Negotiable Instruments Act against the re-spondent alleging that two cheques of about Rs. 8 crores and 6 crores which had been issued in favour of the appellant by the respondent had been dishonoured. The petition was filed under Section 3(2) read with Section 7 of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 before the Special Court constituted under the aforesaid Act.
4. The respondent filed an application praying that the complaint should not be entertained as the Special Court had no jurisdic-tion to try the same.
5. Following an order passed by the Special Court on 28th June, 1995 in Miscellaneous Application Nos. 202 and 203 of 1995 in the case of Canbank Financial Services v. Pallav Sheth, the Special Court came to the conclusion that the cheques in question which had been dishonoured were ‘security’ within the meaning of that expression under Section 1 of the Negotiable Instruments Act, but the court had no jurisdiction to try the said offence as it did not fall within the period 1.4.1991 to 6.6.1992 in respect of which the Special Court had been constituted. Having come to this conclusion, the court observed that it had no jurisdiction to entertain and try the complaint and then held that :
“Accordingly, the accused stands discharged and the bond stands cancelled.”
6. After the impugned judgment was delivered on 9th April, 1996, it is a common ground that a fresh complaint has been filed by the appellant in the court of the Metropolitan Magistrate on 13th June, 1996 – the new case number being 287-288 (M)/1998. The said complaint is pending before the Additional Chief Magistrate 40th Court. It is contended on behalf of the appellant that the proper order for the Special Court to have been passed was to direct the return of the complaint for the same to be presented before the proper court as envisaged under Section 201 Cr.P.C. It is con-tended that the court could not have discharged the accused and ought to have provided for the return of the complaint to be presented in proper court.
7. There is merit in the contention of the appellant. Once the court had come to the conclusion that it had no jurisdiction to decide the complaint, then by virtue of Section 201 of the Code of Criminal Procedure the complaint should have been returned to be presented in the proper court. The only other order which could have been passed was that bond furnished in lieu of ap-pearance could have been discharged. But it could not have been observed that the accused was discharged, which could have been interpreted as meaning that there was no merit in the complaint of the appellant. Not having tried the case on merits, no ob-servation could be made which could be understood in this light.
8. Parties agreed that without adjudicating on the correct-ness of the Special Court’s order relating to the question of jurisdiction, and keeping the question of law open, the appellant will continue with its complaint before the said Chief Metropoli-tan Magistrate.
9. In view of what has been stated hereinabove, the observation of the Special Court to the effect that the accused stands dis-charged is set aside. The complaint now pending before the Chief Metropolitan Magistrate, 40th Court, will proceed for hearing.
10. This appeal is allowed. The complaint filed by the appellant before the Special Court is directed to be returned for presenta-tion before the proper court. Inasmuch as such a complaint has been filed by the appellant on 13th June, 1996 that will be deemed to be a complaint which has been returned and filed in the proper court. The further observations of the Special Court to the effect that the accused stands discharged is set aside. The effect of this would be that the appellant would be entitled to the benefit of Section 470 Cr.P.C.. We direct the Chief Metropol-itan Magistrate to expedite the hearing and dispose of the case within six months from today and report compliance to the High Court.
Civil Appeal Nos. 2068-2069 of 1996
1. After hearing the Counsel for the parties and without going into the correctness of the decision of the Special Court, we direct the XXXVIIth Additional Metropolitan Magistrate, Esplanade to take up and dispose of Case Nos. 23(S)/1993 and 25(S)/1993 entitled Canbank Financial Services Limited v. Pallav Sheth. The next date of hearing is 30th July, 2001. The said court will hear the cases everyday till the cases are disposed of and no adjourn-ment shall be granted on any ground whatsoever. The said court shall dispose of the said cases on or before 30th November, 2001 and report its compliance to this Court
2. The appeals are disposed of.
Criminal Appeal. No. 672 of 1996
3. The appellant had on 21st July, 1993 filed a complaint under Section 138 of the Negotiable Instruments Act against the re-spondent alleging that two cheques of about Rs. 8 crores and 6 crores which had been issued in favour of the appellant by the respondent had been dishonoured. The petition was filed under Section 3(2) read with Section 7 of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 before the Special Court constituted under the aforesaid Act.
4. The respondent filed an application praying that the complaint should not be entertained as the Special Court had no jurisdic-tion to try the same.
5. Following an order passed by the Special Court on 28th June, 1995 in Miscellaneous Application Nos. 202 and 203 of 1995 in the case of Canbank Financial Services v. Pallav Sheth, the Special Court came to the conclusion that the cheques in question which had been dishonoured were ‘security’ within the meaning of that expression under Section 1 of the Negotiable Instruments Act, but the court had no jurisdiction to try the said offence as it did not fall within the period 1.4.1991 to 6.6.1992 in respect of which the Special Court had been constituted. Having come to this conclusion, the court observed that it had no jurisdiction to entertain and try the complaint and then held that :
“Accordingly, the accused stands discharged and the bond stands cancelled.”
6. After the impugned judgment was delivered on 9th April, 1996, it is a common ground that a fresh complaint has been filed by the appellant in the court of the Metropolitan Magistrate on 13th June, 1996 – the new case number being 287-288 (M)/1998. The said complaint is pending before the Additional Chief Magistrate 40th Court. It is contended on behalf of the appellant that the proper order for the Special Court to have been passed was to direct the return of the complaint for the same to be presented before the proper court as envisaged under Section 201 Cr.P.C. It is con-tended that the court could not have discharged the accused and ought to have provided for the return of the complaint to be presented in proper court.
7. There is merit in the contention of the appellant. Once the court had come to the conclusion that it had no jurisdiction to decide the complaint, then by virtue of Section 201 of the Code of Criminal Procedure the complaint should have been returned to be presented in the proper court. The only other order which could have been passed was that bond furnished in lieu of ap-pearance could have been discharged. But it could not have been observed that the accused was discharged, which could have been interpreted as meaning that there was no merit in the complaint of the appellant. Not having tried the case on merits, no ob-servation could be made which could be understood in this light.
8. Parties agreed that without adjudicating on the correct-ness of the Special Court’s order relating to the question of jurisdiction, and keeping the question of law open, the appellant will continue with its complaint before the said Chief Metropoli-tan Magistrate.
9. In view of what has been stated hereinabove, the observation of the Special Court to the effect that the accused stands dis-charged is set aside. The complaint now pending before the Chief Metropolitan Magistrate, 40th Court, will proceed for hearing.
10. This appeal is allowed. The complaint filed by the appellant before the Special Court is directed to be returned for presenta-tion before the proper court. Inasmuch as such a complaint has been filed by the appellant on 13th June, 1996 that will be deemed to be a complaint which has been returned and filed in the proper court. The further observations of the Special Court to the effect that the accused stands discharged is set aside. The effect of this would be that the appellant would be entitled to the benefit of Section 470 Cr.P.C.. We direct the Chief Metropol-itan Magistrate to expedite the hearing and dispose of the case within six months from today and report compliance to the High Court.
