Negotiable instruments act & 263(g) crpc
Uday Kumar
(Querist) 01 September 2014
This query is : Resolved
Dear Sir
1st date accused appeared and took Bail thereafter same days Notice U/s 251 framed against accused and next date fixed up for statement under section 263(g) without giving any opportunity of filing Application of 145(2) NI Act
Can Accused move Application U/S 145(2)NI ACT on next date asking Court to give opportunity.
Now with the Latest Judgment of Supreme Court even Jurisdiction point will also come, can we move an application U/S 177 CRPC, can at the stage of 263(g) case can be transferred on the point of Jurisdiction referring latest judgment.
Please guide expert at above 2 points
With Regards
Uday Kumar
V R SHROFF
(Expert) 01 September 2014
YES, IF ONLY PLEA of accused was recorded, and evidence was not started, the case can be transferred at accused's bank Jurisdiction.
If Accused bank had a branch , in juri of present court, AT PAR , IT WILL CONTINUE THERE ONLY AS PER RECENT JUDGEMENT OF BOMBAY HIGH COURT, APPLICABLE ONLY IN MAHARASHTRA STATE...
OTHER STATES, WILL HAVE TO WAIT FOR DIRECTION OF THEIR HIGH COURTS. . .
Advocate Bhartesh goyal
(Expert) 02 September 2014
Supreme Court judgment Dashrath Roop Singh Rathore vs State of Maharastra applies in your case,move an application to return the complaint as the court has no jurisdiction to try and hear the case.
Nadeem Qureshi
(Expert) 02 September 2014
yes, SC will be applicable, file an application before court and transfer the matter to the jurisdictional court.
ajay sethi
(Expert) 02 September 2014
agree with experts
Uday Kumar
(Querist) 02 September 2014
Thanks Experts
My Concern is that it is at the stage of 263(g) crpc. ( Next date fixed for 263(g) after 251 CRPC )
Can Complaint be returned on Jurisdiction point at this stage as well
With Regards
Uday Kumar
Advocate Bhartesh goyal
(Expert) 02 September 2014
Yes,in those cases,the recording of evidence has commenced as envisaged in sec 145[2] of the Act,1881,will proceeding continue at that place.In your case evidence has not been commenced so court will return the complaint on jurisdiction point.
Arvind Singh Chauhan
(Expert) 03 September 2014
Point of jurisdiction can be raised at any stage even in appeal. so complaint can be returned.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 03 September 2014
Even though the Bombay HC has given judgment for at par cheque jurisdiction but it is in clear contradiction to SC and hence liable to be over ruled .
The concerned affected party has gone in revision but it may take time for final order.
There is basic defect in Bombay HC judgement.The payment can be any where for at par cheques but bounce will be only at the branch from which the cheque was issued.
Read what SC has said in 1st Aug 2014 Judgment.
1) We clarify that the place of the
issuance or delivery of the statutory notice or where the Complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial
jurisdiction of the Complaints even though non-compliance thereof will inexorably lead to the dismissal of the complaint.
2) We clarify that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situs where the Section 138 Complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed, which in
the present context is where the cheque is dishonoured by the bank on which it is drawn.
and lastly again-
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.
V R SHROFF
(Expert) 03 September 2014
HOWEVER, ONCE CL AFF OF COMPLAINANT IS FILED; IT IS CONSIDERED AS "EVIDENCE STARTED" AND THOSE CASES WILL NOT BE TRANSFERRED..
Raj Kumar Makkad
(Expert) 04 September 2014
Well advised by experts leaving no room to enter.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 05 September 2014
1) The submission of affadavit by complainant is the stage of 145 (1) and it has a rider with just exceptions meaning the accused can take objection about its admissibility as evidence.
very rare defense advocates use this golden opportunity.
2) stage 145 (2) is after that when accused applied for cross of the deponent.
This is the provision of law in NI act section 145 given below =
145. Evidence on affidavit.
(1) Notwithstanding anything contained in the Code ofCriminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.
Raj Kumar Makkad
(Expert) 05 September 2014
Hon'ble Supreme Court has to decide this vital question whether evidence in NI complaint be taken by way of affidavit or not as divergent decisions of various high courts have come out on this issue.
T. Kalaiselvan, Advocate
(Expert) 06 September 2014
Nothing more to add since all the points have been covered by experts above.
bhupender sharma
(Expert) 03 March 2015
The said judgement of the bombay high court has been stayed By the HON'BLE SUPREME COURT OF INDIA. More so the apex court again reteriated the same law again in another judgement passed by three judges.
bhupender sharma
(Expert) 03 March 2015
The issue of jurisdiction ought to have been raised at the earliest possible opportunity that is the Law. Otherwise it would be deemed that u have waived of the issue of jurisdiction.
Guest
(Expert) 03 March 2015
Well advised.
