Latest judgement of NI act by Supreme court and Bombay HC

[korrapolu vasudevarao]

Dear friends Hon'ble Supreme Court in Dasharat Rupsing Rathod case held that where the cheque dishonoured the court of the said jurisdiction can only entertain the complaint under NI Act. Whereas Bombay HC on 25.08.2014 held that the said decision is not applicable for cases in cheques of "at par". I would like to place it with all my friends to have a good discussion. Hon'ble Supreme court directed to return the pending cases where evidence was not recorded/trial not yet commenced, summons not served, cognizance not taken. It gave 30 days time to represent the complaint in the proper court. for better idea of both judgments i am herewith attaching. I would like suggestions method of returning complaint. whether complaint only to be returned or entire case record to be returned.

[kiran kumar.d]

dear friend  Vasudeva rao, you raised commendable discussion:

 

since most of the cheques being issued nowadays are multi-city cheques,  in respect of the multi-city cheques, the old problem of uncertainty about territorial jurisdiction of cheque bouncing cases returns to haunt us again Therefore, if one goes by this latest decision from the Bombay High Court, the payee again gets the choice of place where he wants to file the cheque bouncing case, if the cheque being dishonoured is a multi-city cheque payable at par in all branches of the bank.  the aforesaid decision of the Supreme Court in Dashrath Rupsingh Rathod case has effectively been set at naught, reigniting the same old uncertainty. There is, perhaps, an urgent need therefore to get this issue clarified by the Supreme Court in order to remove this uncertainty.

     In my opinion entire case record has to be returned to the complainant for presenting in proper court, since we are not fixing date of hearing, court name while returning case.  

[korrapolu vasudevarao]

dear friend,

    here we are returning only complaint and documents filed with it. because in cases where trial was not commenced and accused appeared through his counsel, complainant has no authority to receive vakalat or memo of appearance of accused and solvencies filed by accused. hence we use to return only complaint and documents filed along within. after receiving letter from the concerned court we may index and send to the concerned court.

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[vijaya saradhi]

Hi this is raju,
    some of our friends expressed their view with regard to the procedure need to be followed while returning the case as per the principle laid down by THE HON’BLE SUPREME COURT OF INDIA in the case of Dashrath Rupsingh Rathod V/s State of Maharashtra & Anr. Here I want to share my view.
   
    Under this Judgment, the Hon’ble Supreme Court directed that all the cheque bouncing matters wherein trial is not yet begun, pending in various criminal courts across India, must be returned by the Courts to the Complainants for re-filing it in the court in the place where the Bank of the Accused-drawer is situated within 30 days of return of the said Complaints. However this Judgment does not state the fate of such complaints, if not filed within the said 30 days.

    As per this judgment we need to return both the complaints (S.R's) and cases. In the case of S.R stage there is no problem that we will hand over entire file to the complainant. The problem arises when it is calender case stage. The term used in the judgment of Hon'ble Supreme court is 'Return of complaint' not 'Return of case'. Strictly speaking the procedure is that on the last page of original complaint or on the reverse side of complaint the court should make an endorsement that the case number so and so is returned for want of jurisdiction as per the principle laid down by Hon'ble Supreme court and also should give a direction to the complainant to re-file the same within 30 days. We also need to mention in the same place that the record will be sent to the concerned court in due course. Generally hand-overing of case to the complainant/party in the stage of case does not arise in criminal and even at best when it is find that the court had no jurisdiction the appropriate procedure is that the court should address a letter to C.J.M and should ask for transfer of case on point of jurisdiction.  However, in my view if we return only complaint there are certain complications.

    The cases need to be returned as per the direction of Hon'ble Supreme court stands on entirely different footing and it should be considered as special circumstance. As I already stated there are certain complications in returning only complaint to the complainant. For better understanding I will list them below.

1. Primarily, cheque bounce case is between the private parties. The complainant is under no legal obligation to re-file it after return. For instance, if he chosen not re-file the complaint, what is the fate of valuable documents available in our court.?
2. How long the documents should be preserved with the court.? What is logical conclusion for its destruction.?
3. In most of the cases the value of cheque would be in lakhs. Who will take care of these valuable cheques.? I am entertaining this doubt since for all practical purposes once we return the complaint it would be otherwise disposed case for us.?
4. In maximum number of cases the cheques are relating to other districts and in some other cases relating to other states. Certainly it is not possible to send the documents through messenger. Then the course left to us is to send the documents through postal cover. Here the problem arises. Who will bear this postal expenses.? For  booking of every registered postal cover one must need to certify that there are no valuable documents in cover.? Is it possible.? The worth of documents placed in cover need to be mentioned to postal authorities. There will be a column in the form for that. How you will assess the worth of documents. Most importantly, if the postal cover not reached to the destination, who will be held responsible. If the documents are missed in transportation there is no possibility for reconstruction of documents as in the case of police cases.

    There is no convincing answer for at-least one question that I entertained supra. After entertaining all these doubts I am following the procedure of returning of entire case after indexing. Some of our friends asking that how we will handover documents relating to accused like M.O.A etc.,. My answer for this question is that since we are hand-overing after indexing we need not much worry about this. For understanding and knowledge sake I am herewith attaching my return order in calender case. Please go through it.