SC on Territorial Jurisdiction : NI Act

SC on Territorial Jurisdiction:NI Act (Cheque Bouncing)

A 3-Judge Bench of Hon'ble Supreme Court, in its landmark judgement has settled issues related to Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’).

Points to Note:

(1) The return of the cheque by the drawee bank alone constitutes the commission of the offence and indicates the place where the offence is committed.

(2) The place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank, is located.

(3) 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.

(4) 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. 

(5) 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. 

(6) 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 from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court.

(7) 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.

(8) The relief introduced by Section 138 of the NI Act is in addition to the contemplations in the IPC. It is still open to such a payee recipient of a dishonoured cheque to lodge a First Information Report with the Police or file a Complaint directly before the concerned Magistrate.

PS: We do not accept any liability arising out of use of above information. Users are advised to apply their own thoughts and experience in above case.

Case Number: 

CRIMINAL APPEAL NO. 2287 OF 2009

Case Title:
Dashrath Rupsingh Rathod Versus State of Maharashtra & Anr.

Bench:

Hon'ble Justice T.S. THAKUR

Hon'ble Justice VIKRAMAJIT SEN
Hon'ble Justice C. NAGAPPAN

Date of Judgement: 
1st August 2014

Blog Link:
http://jeetendergupta.blogspot.in/2014/08/sc-on-territorial-jurisdiction-ni-act.html

Full judgement / Order Link:
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41801

Supreme Court India : Negative Voting (NOTA) Judgment

PERSONAL INTERPRETATION to the best of understanding:

1. Election Commission has been directed to provide for a NONE OF THE ABOVE (NOTA) button / option on EVMs as well as ballot papers.

2. Need of negative voting has been recognised and this might compel political parties to nominate sound candidates.

3. This would also protect elector's identity & maintain secrecy as to who casts vote & who does not case vote. In present system one can easily make out who has not voted.

4. This NOTA option is similar to the ABSTAIN option that the legislators get while voting in Parliament

5. This might also minimise giving chances to unscrupulous elements who impersonate those who dont turn up vote (dissatisfied voters) and cast a vote. 

6. IS IT REALLY RIGHT TO REJECT OR RIGHT TO RECALL? 

7. IT NOWHERE MENTIONS OR SUGGESTS FRESH ELECTION EVEN IN CASE OF NOTA BEING MAJORITY. IT ONLY TALKS ABOUT SYSTEMIC CHANGES SENDING SIGNALS TO PARTIES TO FIELD SOUND CANDIDATES

PS: Above are personal interpretations. Extracts from Original text of judgment, reproduced below for reference & independent interpretations. Link to full judgment also provided.

______________________________________________________________

CASE NO.: 
WRIT PETITION (CIVIL) NO. 161 OF 2004

CASE TITLE: 
People’s Union for Civil Liberties & Anr. VERSUS Union of India & Anr. 

BENCH:
CJI. (P. SATHASIVAM) 
J. (RANJANA PRAKASH DESAI) 
J. (RANJAN GOGOI)


IMPORTANT EXTRACTS FROM JUDGMENT:

"Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country. For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting"

"No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive. Thus, it is necessary to keep in mind these facets while deciding the issue at hand."

"Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered. We are of the considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people."

"Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons."

"...The voting machines in the Parliament have three buttons, namely, AYES, NOES, and ABSTAIN. Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote."

"The mechanism of negative voting, thus, serves a very fundamental and essential part of a vibrant democracy...."

"...Rules 41(2) & (3) and 49-O of the Rules are ultra vires Section 128 of the RP Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting...."

"Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity."

"The direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one. Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate think about them."

"We direct the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called “None of the Above” (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy. In as much as the Election Commission itself is in favour of the provision for NOTA in EVMs, we direct the Election Commission to implement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we also direct the Election Commission to undertake awareness programmes to educate the masses."

COMPLETE JUDGMENT AT :

http://supremecourtofindia.nic.in/outtoday/wp(c)No.161of2004.pdf