Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’)

Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’)

An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.

(ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section  138.

(iii) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if 

(a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue.  

(b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and 

(c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice.

(iv) The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. 

(v) The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant. 

(vi) Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. 

(vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whos jurisdiction the dishonour takes place except in situations where

the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof

Full Judgement Dashrath Rupsingh Rathod Versus State of Maharashtra & Anr 01-08-2014

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A Magistrate not become functus officio to proceed on a Protest Complaint just because he accepted a refer report from the police on the same matter

Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?

Magistrate  had  not become  “functus officio” and was denuded of all power to proceed in the  matter. 

Supreme four of  India In Rakesh and another vs. State of UP the Supreme Court [Crl. Appeal 1412/2014]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1412 OF 2014

(Arising out of SLP(CRL.) No.3308 of 2013)

RAKESH & ANR ... APPELLANTS

VERSUS

STATE OF U.P. & ANR. ..

J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted.

2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.

3. The bare facts that would be required to be noticed are as follows :

Respondent No.2 herein lodged an FIR which was registered as Crime Case No.480 of 2000 under Section 364 of the Indian Penal Code at the Police Station Gosai Ganj District Sultanpur against the appellants and two other accused persons. On completion of investigation, the investigating officer submitted a final report to the court that no case is made out against the appellants and the other two accused and that they have been falsely implicated in the case. By order dated 26th November, 2002, the learned Magistrate accepted the final report but simultaneously directed that the case be proceeded with as a complaint case. The statements under Sections 200 and 202 of the Code of Criminal Procedure (Cr.P.C.) were recorded and the accused were summoned by the learned trial court to face the trial. Against the aforesaid orders passed by the learned Magistrate, the present appellants moved the High Court of  Allahabad raising the question noticed earlier. The High Court having answered the said question in the affirmative, this appeal has been filed. 

4. We have heard learned counsel for the parties. 

5. In Bhuneshwar Prasad Sinha vs. State of Bihar 1 , the very same question came up for consideration before the Patna High Court. The High Court answered the question in the negative by holding – 

“In that case it has been held by the 

Supreme Court that if the Magistrate agrees 

with the opinion of the police he may accept 

the final report and close the proceedings. It 

will be deemed that the proceedings against 

the accused persons in respect of the facts

constituting the offence have been closed by 

the Magistrate in a Judicial-Proceeding. If it is 

so, such proceeding can only beset aside in 

revision by the higher authority unless and 

until the order is not set aside, the Magistrate 

is not entitled to take cognizance on the 

basis of the complaint petition or protest

petition in respect of the same facts 

constituting the offence as mentioned in the 

final form. In the present case, it is clear from 

the order dated 6th Dec. 1978, that the final 

form was accepted by the court earlier. If it is 

so, then the Magistrate was not justified in 

taking cognizance in respect of the same 

facts constituting the offence which were 

mentioned in the final form. In order to check

1 [1981 Crl.LJ 795] 

the litigation, it is necessary that when a 

judicial order is passed by accepting the final 

form such order should not be set aside by  

the Magistrate by taking cognizance on the 

basis of the complaint petition.” 

6. In the appeal filed against the aforesaid order of the 

Patna High Court, this Court, however, held that – 

“The High Court was clearly in error in 

thinking that the Magistrate could not take 

cognizance of a case upon complaint because 

he had earlier refused to take cognizance of

the case on a police report. The order of the 

High Court is set aside. The matter is 

remitted to the Chief Judicial Magistrate, 

Patna for disposal according to law. If the  

accused have any further objections to raise,

they may do so before the Chief Judicial 

Magistrate.” 

The decision of this Court is reported in Gopal Vijay 

Verma vs. Bhuneshwar Prasad Sinha & Ors. 2 .

7. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. 2 1982 (3) SCC 510 State (Union Territory of Chandigarh) 3 wherein it was

held that after receipt of the police report under Section 173, the Magistrate has three options –

“(1) he may decide that there is no sufficient 

ground for proceeding further and drop 

action;

(2) he may take cognizance of the offence

under Section 190 (1)(b) on the basis of the

police report and issue process; this he may

do without being bound in any manner by the

conclusion arrived at by the police in their

report;

(3) he may take cognizance of the offence

under Section 190(1)(a) on the basis of the

original complaint and proceed to examine

upon oath the complainant and his witnesses

under Section 200. If he adopts the third

alternative, he may hold or direct an inquiry

under Section 202 if he thinks fit. Thereafter

he may dismiss the complaint or issue

process, as the case may be.”

8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat 3 [1980 Crl. LJ 1308],  either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein. Reference in this regard may be made to the decision of this Court in Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors.4. The following view may be specifically noted –

“…………….The Magistrate can ignore the

conclusion arrived at by the investigating

officer and independently apply his mind to

the facts emerging from the investigation and

take cognizance of the case, if he thinks fit,

exercise his powers under Section 190(1)(b)

and direct the issue of process to the

accused. The Magistrate is not bound in such

a situation to follow the procedure laid down

in Sections 200 and 202 of the Code for

taking cognizance of a case under Section

190(1)(a) though it is open to him to act

under Section 200 or Section 202 also. [See

India Carat (P) Ltd. v. State of Karnataka]”

(Para 6)

9. The view expressed by this Court in Gopal Vijay Verma (supra) has been followed in Mahesh Chand vs. B.Janardhan Reddy & Anr. 5 and also in a somewhat recent pronouncement in Kishore Kumar Gyanchandani vs. 4 [2004 (7) SCC 768] (para 9)

5 [2003 (1) SCC 734] (para 12) 6 G.D.Mehrotra & Anr.6. The clear exposition of law in para 12 of Mahesh Chand (supra) which is extracted below would leave no manner of doubt that the answer to the question posed by the High Court is correct.

“There cannot be any doubt or dispute that

only because the Magistrate has accepted a

final report, the same by itself would not

stand in his way to take cognizance of the

offence on a protest/complaint petition; but

the question which is required to be posed

and answered would be as to under what

circumstances the said power can be

exercised.”

10. In the present case, the contention advanced on behalf of the accused pertained to the question of jurisdiction alone; it was urged that having accepted the final report the learned Magistrate had become “functus officio” and was denuded of all power to proceed in the matter. The above stand taken and the answer provided by the High Court would not require us to consider the circumstances in which the exercise of power was made. 6 [2011 (15) SCC 513]7

11. In Kishore Kumar (supra) the question has been gone into again and reliance has been placed on Gopal Vijay Verma (supra) to reiterate the same conclusion.

12. In view of the above, it has to be held that this appeal is

without any merit or substance. It is accordingly dismissed.

……..…..…………………………...J.

[Sudhansu Jyoti Mukhopadhaya]

……..…………………………….……J.

[Ranjan Gogoi]

New Delhi;

August 13, 2014.

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Commentary on LARR-2013 

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THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013

[NO.30 OF 2013]

to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:—

SYNOPSIS

1.      Introduction

2.      Reason for New Act

3.      Highlight of New Act

a)      Retrospective effect

b)      Transparency in acquisition process

c)      Fair Compensation

d)      Post effect measures

e)      Safeguard for SC‟s/ST‟s

f)       Compensation for livelihood

g)     Strengthen the Gram Sabha voice in land acquisition

h)     Consent of people whose land acquire

i)        Return of unutilized land

j)        Safe guard from income tax and stamp duty

k)      Share in appreciated land value

1.         INTORDUCTION

Background of the Act

During the British Raj, in the year 1824, an Act” The Land Acquisition Act, 1894” for land acquisition was enacted by British government. This Act empowered the government to acquire the land from privately held person for public use, at a reasonable price which government considered. Its application was throughout the whole of the Bengal provinces, and there after rest part of India, even after independence of, the Indian government adopted the 1894 Land Acquisition Act. Since then various amendments have been made from time to time but the administrative procedures have remained same.

2.         Why this New Enactment?

There was a unanimous opinion that the current law (”The Land Acquisition Act, 1894”) suffers from various shortcomings, and not able to address the progressive Indian needs. Hon’ble Apex court also observed the current act (”The Land Acquisition Act, 1894”)    has “become a fraud”[1] on only this but many time Hon’ble Supreme court made its observation regarding the procedure and deficiency in the current act.

In consolation below are the points to give birth this new Act:

Þ    obsolete law

Þ    Supreme Court Observations

Þ    To bridge the gab for acquisition to rehabilitation and resettlement

Þ    Provide the balance between land owner whose land being acquired and facilitating the industrialization and urbanization

4.      Anatomy of the Act

The soul of the act lies in three points:

§         Land Acquisition-  For what purpose, Transparency and Consent of Local Self Government ( Panchayat)

§         Consent- prior consent  when the government acquires the land for private companies, the consent of at least 80% of the project affected families shall be obtained through a previous informed process before government uses its power under the Act to acquire the remaining land for public good, and in case of a public-private project at least 70% of the affected families should consent to the acquisition process

§         Compensation- Just and Fair compensation not only for those who displaced by acquisition, but other affected sections by acquisition to level the social and economic crisis

§         R&R – Balancing post acquisition affects

4.         Highlight of New Act

a)      Retrospective effect

The magnificent feature of this act, is an effort to address the historical injustice, the Act applies retrospectively in following cases:-

a)   Where No Award Made: Where no award under Section11 of the 1894 Act has been, made, the new law will apply with regard to compensation:-

b)      Where an award has been made: Where an award has been made but the affected individuals have not accepted compensation or have not yet given up possession, and the proceedings have been pending for 5 years or more, provisions of the new law will apply.

b)     Transparency in acquisition process

This act also project the transparency to the process of acquisition of land, all documents such as summary of SIA[2] notified along with draft Notification are  made available in public domain and on the website for public scrutiny, and Gram Sabha also be consulted before acquire any land.

c)      Just and Fair Compensation

 The act not only recognized the compensation but fair compensation, the compensation is no more the arbitrary wish of the government as was under the old Act (”The Land Acquisition Act, 1894”),  the minimum compensation for land is being decided at the market value as pr The First Schedule of this Act.

d)     Post effect measures

This Act addressed the social legislature, which make the obligatory provisions for R&R[3] for social and economic status of those displaced by acquisition, and livelihood losers who are dependent on the land

e)      Safeguard for SC s/STs

There are specific provisions are being made in this act apart from rehabilitation and resettlement SCs and STs Families will be entitle for Land even in the case of irrigation projects, one time financial assistance with the tune of Rupees. Fifty Thousand per family, an additional 25% R&R benefits if families settled outside the district, 1/3  payment of the compensation amount at very outset etc.

f)       Compensation for livelihood

Provisions for compensation other than whose land acquire, who are dependent of land being acquired for their livelihood

g)     Strengthen the Gram Sabha voice in land acquisition

   The role of Gram Sabha is being enhanced by this act, no land cab acquired in Scheduled Areas without the consent of the Gram Sabhas (Panchayats), provisions of representation of Chairperson of Gram Sabha in Rehabilitation and Resettlement committee is also being made

h)     Consent of people whose land acquire

      The Act makes the provisions of prior consent of not less than 70 % and 80% of people whose land is sought to be in the event of PPP projects or private companies respectively

i)        Return of unutilized land

   In case land remains unutilized after acquisition , the new Act empowers States to return the land either to the owner or to the State Land Bank

j)        Safe guard from income tax and stamp duty

   With the tune of fair compensation all amounts accruing under this act have been exempted from Income tax and from Stamp duty

k)     Share in appreciated land value

         If the land is being sold to the third party at a higher price then 40% of the appreciated land value or profit will be shared with the original owners

l)       Compact Law

          It is being observed that making the provision for land owner not level the social and economic justice, only providing compensation without the provision of Rehabilitation and Resettlement, is against the aim of social state, and as Rehabilitation and Resettlement, is considered to be the two side of one coin, this act is the approached to balance this situation

m)     Balance between Land Acquisition and Development

   This act is an effort to balance the issue of farmers during and after acquisition of land and for industrialization, development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families

CHAPTER I

PRELIMINARY

1. (1) This Act may be called the Right to Fair Compensation and Transparency in

Land Acquisition, Rehabilitation and Resettlement Act, 2011.

(2) It extends to the whole of India except the State of Jammu and Kashmir

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that the Central Government shall appoint such date within three months from the date on which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2013 receives the assent of the President.

SYNOPSIS

1.      Short Title

2.      Extent

3.      Commencement

Short Title

            This Act may be called the right to fair compensation and transparency in land acquisition, rehabilitation and Resettlement act, 2013

Extent

It extends to the whole of India except the State of Jammu and Kashmir.

The scope of the Act includes all land acquisition whether it is done by the Central Government of India, or any State Government of India, except the state of Jammu & Kashmir.

Commencement

The bill was introduced in Lok Sabha in India on 7 September 2011. The Act was passed on 29 August 2013 in the Lok Sabha and on 4 September 2013 in Rajya Sabha. The bill received the ascent of the President of India, on 27 September 2013. The Act came into force from 1 January 2014.

Retrospective effect

The magnificent feature of this act, is an effort to address the historical injustice, the Act applies retrospectively in following cases:-

a)   Where No Award Made: Where no award under Section11 of the 1894 Act has been, made, the new law will apply with regard to compensation,

c)      Where an award has been made: Where an award has been made but the affected individuals have not accepted compensation or have not yet given up possession, and the proceedings have been pending for 5 years or more, provisions of the new law will apply        

  

Application of Act 

 Provisions of this Act have been segmented in three major categories, when the appropriate government[4]   acquires land i.e.

1.      under sub section (1) of Section 2- Land acquisition, Compensation and R&R

 For the following purposes:

• its own use, hold and control, including land for Public sector undertakings and Public purpose[5]
• For PPP[6]
• When private companies purchases land, equal to or more than such limits in rural areas or urban areas as my be defined by appropriate government

Provisions relating to acquisition, compensation, rehabilitation and resettlement shall apply when its own use, hold and control, including land for Public sector undertakings and Public purpose, apart from this other purpose is also specified in the section, such as

Strategic purposes, which relating to navel, military, air force and armed forces of the Union, and central paramilitary forces or which is require for national security or defense of India or the State Police last but not the lease the safety of the people.

For Infrastructure Project such as all items or activities mentioned in the notification of the GOI[7] in Department of Economic Affairs (Infrastructure Section) number 13/6/2009-INF dated 27.3.2012, but it excluded private hospitals, private educational institutions and private hotels.

Projects involving agro-processing, for the activities like supply of inputs to agriculture, warehousing, cold storage facilities, marketing, infrastructure, for agriculture and allied activities, like dairy, fisheries, and meat processing, set up or owned by appropriate government or by farmers’ cooperative or by an institution under statue

Projects for industrial corridors or mining activities, national investment and manufacturing zones, as drafted in the National Manufacturing Policy

Projects for water harvesting, conservation and sanitation

Projects for educational, research schemes or institutions, administered or aided by government

Projects for sports, health, tourism, transportation or space programme

Projects for

Affected families, plan development or improvement of village sites or any other site in urban area, provisions for land for residential purposes for the weaker sections in rural and urban areas and also for poor or landless or to persons residing in areas affected by natural calamities etc.

2.   Under Sub Section (2) of Section 2 - Land acquisition, Consent Compensation and R&R

When the appropriate government   acquires land for

Public Private Partnership Projects, when the ownership of the land continues to vest with the government. Under this provision the appropriate government can not acquire the land unless the mandatory provisions attached with the section accomplished:

Prior Consent: when the government acquires the land for private companies, the consent of at least 80% of the project affected families shall be obtained through a previous informed process before government uses its power under the Act to acquire the remaining land for public good, and in case of a public-private project at least 70% of the affected families should consent to the acquisition process

SIA study also be carried out during the process of obtaining the consent

If the acquisition is contravene any law prevailing in Scheduled area (including any order or judgment of a court which has become final) no land shall be transfer by way of acquisition in Scheduled Areas

3.         under sub section (3) of Section 2- Rehabilitation and Resettlement

           

      In case Private Company purchases land, equal to or more than the specified limit, by the appropriate government, in rural area or in urban area.

In case of partial acquisition of land by the appropriate government, on request, of private company for public purpose, the rehabilitation entitlement shall be for the entire area.

It indicates that both LA and R&R Provisions will apply when:

Þ    Government acquires land for its own use, hold and control

Þ    Government acquires land with the final purpose to transfer it for the use of private companies for stated public purpose

Þ    Government acquires land for  PPP 

CHAPTER III

SPECTAL PROVRSTON TO SAFEGUARD FOOD SECURTRY

10. (/) Save as otherwise provided in sub-section (2), no irrigated multi-cropped land

Shall be acquired under this Act.

(2) Such land may be acquired subject to the condition that it is being done under

Exceptional circumstances, as a demonstrable last resort, where the acquisition of the land

refened to in sub-section (/) shall, in aggregate for all projects in a district or State. in no case exceed such limits as may be notified by the appropriate Government considering the relevant State specific factors and circumstances.

(3) Whenever multi-crop irrigated land is acquired under sub-section (2), an equivalent

area of cultivable wasteland shall be developed for agricultural purposes or an amount

equivalent to the value of the land acquired shall be deposited with the appropriate Government for investment in agriculture for enhancing food-security.

(4) In a case not falling under sub-section ( /). the acquisition of the agricultural land in

aggregate for all projects in a district or State, shall in no case exceed such limits of the total net sown area of that district or State, as may be notified by the appropriate Government:

Provided that the provisions of this section shall not apply in the case of projects that

are linear in nature such as those relating to railways, highways. major district roads. Irrigation canals. power lines and the like.

Synopsis

1.                  Nature

2.                  Food Security

3.                  Limit on acquisition

4.                  Exception

Nature

The section prohibitory in nature, which establishes the mandatory prohibition using the world “shall”. The Act forbids land acquisition when such acquisition would include multi-crop irrigated area. However such acquisition may be permitted on demonstrable last resort, which will be subjected to an aggregated upper limit for all the projects in a District or State as notified by the State Government. Intend of the section to safe guard the multi-crop irrigated.

Food Security

The section imposes an obligation on the appropriate government, in the event when multi-crop irrigated land is acquired an equivalent area of cultivable wasteland shall be developed for agricultural purposes (or an amount equivalent to the value of the land acquired shall be deposited with the appropriate Government for investment in agriculture for enhancing food-security).

Limit on acquisition

States are also required to set a limit on the area of agricultural land that can be acquired in any given district.

Exception

These limits shall not apply to linear a project which includes projects for railways, highways, major district roads, power lines, and irrigation canals        

 Cont…….

NAVEEN KUMAR SHELAR

M.B.A, M.A, R.T.M, LL.B, DIP’- MKET, CIR’ – ENG

, No. 1, Ansari Road, Darya Ganj, New Delhi – 110002 | +91 85.86.97.26.36 | replyshelar@yahoo.com

ADVOCATE ~ SOCIAL ENTREPRENEUR ~ AUTHOR

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[1] Ganpat Singhvi J, Supreme Court of India

[2] The social Impact Assessment

[3] Rehabilitation and Resettlement

[4] Defined u/s 3(e) of  this Act

[5] Defined u/s 3(2a) and 2(1)

[6] Public Private Partnership

[7] Govt. Of India

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