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2015 DIGILAW 313 (UTT)

KEVIN POWER SOLUTION LTD. v. STATE OF UTTARAKHAND

2015-06-23

SUDHANSHU DHULIA

body2015
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Mr. Manish Arora, Advocate, present for the applicants. 2. Mr. S.S. Adhikari, learned Brief Holder, present for the State/respondent no.1. 3. Ms. Menka Tripathi, Advocate, present for the respondent no.2. 4. This application under Section 482 Cr.P.C. relate to an offence under Section 138 of Negotiable Instruments Act. The admitted fact in this application is that present applicants had given cheque to the complainant which was drawn at HDFC Bank, at Rajori Garden Branch, New Delhi. Thereafter, on presentation of the cheque since it was dishonoured, complaint was moved before the learned Magistrate at Roorkee, District Haridwar, Uttarakhand. In view of the law laid down by the Hon’ble Apex Court in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra and another, (2014) 9 SCC 129 , now the Court which shall have the jurisdiction in the event of dishonour of cheque under Section 138 of Negotiable Instruments Act will be of the concerned Magistrate within whose territorial jurisdiction the cheque has been dishonoured. Therefore, the learned Magistrate at Roorkee, District Haridwar has no jurisdiction in the matter. It is the court of the learned Magistrate within whose jurisdiction Rajori Garden, New Delhi Branch of HDFC Bank is located. 5. The contention of the learned counsel for the applicants appears to be correct. The law which has now been laid down by the Hon’ble Apex Court reads as under:- “21. The interpretation of Section 138 of the NI Act which commends itself to us is that the offence contemplated therein stands committed on the dishonour of the cheque, and accordingly the JMFC at the place where this occurs is ordinarily where the Complaint must be filed, entertained and tried. The cognizance of the crime by the JMFC at that place however, can be taken only when the concomitants or constituents contemplated by the Section concatenate with each other. 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. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general of the NI Act. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general of the NI Act. The vindication of this view is duly manifested by the decisions and conclusion arrived at by the High Courts even in the few cases that we shall decide by this Judgment. 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.” 6. In view thereof, the summoning order dated 19.08.2013, passed by the Special Judicial Magistrate, Roorkee, District Haridwar in Criminal Complaint Case No.1429 of 2013, is hereby set aside. Let the trial court return the complaint to the complainant to be presented within the stipulated time before the concerned magistrate having jurisdiction in the matter in terms of the law laid down by the Hon’ble Apex Court in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra and another, (2014) 9 SCC 129 *. 7. On the request of the learned counsel for the respondent no.2, let a certified copy of this order be given to the learned counsel for the respondent no.2 within 24 hours on payment of usual charges.