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2015 DIGILAW 406 (UTT)

RASHMI MUKHI v. PAWAN KUMAR NATH

2015-08-20

SUDHANSHU DHULIA

body2015
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Mr. S.P.S. Panwar, Senior Advocate, assisted by Mr. B.D. Pande, Advocate, present for the applicant. 2. Mr. R.P. Nautiyal, Senior Advocate, assisted by Mr. Mohit Maulekhi, Advocate, present for the respondent. 3. The present applicant before this Court had filed a complaint before the concerned Magistrate, under Section 138 of the Negotiable Instruments Act. 4. Admittedly, the facts of this case are that the cheques were drawn by the respondent from a bank which is situated in the territory at Nainital in Uttarakhand. Meanwhile, during the pendency of the complaint before the learned Metropolitan Magistrate, at Mumbai, the Hon’ble Apex Court delivered its judgment on 01.08.2014, relating to the Section 138 of the Negotiable Instruments Act, (Dashrath Rupsingh Rathod v. State of Maharashtra reported in (2014) 9 SCC)*. In the above case, inter alia, it has been held that only that court will have jurisdiction in the matter which has within its territorial jurisdiction the branch of the bank on which the cheque is drawn. Paragraph 22 of the said judgment reads as under:- “22. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence i.e. applicability to complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged respondent-accused who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a court devoid of jurisdiction, this recourse in entirely does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that 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. 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. 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. To obviate and eradicate any legal complications, 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 by us from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where it is presently pending. All other complaints (obviously including those where the respondent-accused has not been properly served) shall be returned to the complainant for filing in the proper court, in consonance with our exposition of the law. 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.” 5. The learned Metropolitan Magistrate, Mumbai vide its order dated 17.11.2014, ordered that the complaint be returned to the complainant for filing before an appropriate court. At that relevant time, the appropriate court was the Chief Judicial Magistrate, Nainital. Subsequently, complaint was filed before the court of Chief Judicial Magistrate, Nainital on 06.01.2015. Although it was accompanied by a delay condonation application and the delay was explained by the applicant but the learned Magistrate did not condone the delay and has refused to condone it holding that the provisions of 142(2)(b) of the Negotiable Instruments Act, whereby the powers are given to the Magistrate for condonation of delay will not be applicable as in its judgment the Hon’ble Apex Court (Dashrath Rupsingh Rathod v. State of Maharashtra reported in (2014) 9 SCC) has only given thirty days time for filing the complaint on its return. 6. Aggrieved, he has filed the present application under Section 482 CrPC before this Court. 7. The point canvassed before this Court by the learned Senior counsel for the applicant Mr. 6. Aggrieved, he has filed the present application under Section 482 CrPC before this Court. 7. The point canvassed before this Court by the learned Senior counsel for the applicant Mr. S.P.S. Panwar, that the learned Chief Judicial Magistrate, Nainital has committed a patent illegality for following reasons:- After the decision of the Hon’ble Apex Court in the case of Dashrath Rupsingh Rathod v. State of Maharashtra and the ordinance was passed by the President of India on 15.06.2015, bringing the amendment under Section 142 of the Negotiable Instruments Act and also incorporating another provision under Section 142(A) of the Negotiable Instruments Act. Section 142 (2) of the Negotiable Instruments Act reads as under:- “142 (2).- The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.” Section 142 (A) further reads as under:- “142(A).- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions or any court, all cases arising out of section 138 which 4 were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the court having jurisdiction under sub-section (2) of Section 142 as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub-section (2) of Section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of Section 142 or the case has been transferred to that court under sub-section (1), and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court.” (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142 before which the first case was filed and is pending, as if that sub-section had been in force at all material times.” 8. It is again an admitted fact that subsequent to the amendment the Parliament itself has incorporated and it is the part of the Negotiable Instruments Act as of now, therefore, the legal argument would be for the learned counsel for the applicant that the court has no jurisdiction in the matter and the only way for the learned Magistrate was to return the complaint which could have been filed at the courts in Mumbai, in view of the amendment. 9. On the other hand, learned Senior counsel for the respondent/accused Mr. R.P. Nautiyal, would argue that the new amendment would only be applicable to the pending cases, which are pending on 15.06.2015. The complaint itself has been rejected on the grounds of limitation (it was dismissed on 06.01.2015). Therefore, the amendment would not be applicable in the present case. 10. First and foremost question before this Court is whether the learned Chief Judicial Magistrate, Nainital was right in not condoning the delay and refusing to take cognizance in the matter. In view of this Court, the learned Chief Judicial Magistrate, Nainital had committed a patent illegality by dismissing the complaint on the delay. 10. First and foremost question before this Court is whether the learned Chief Judicial Magistrate, Nainital was right in not condoning the delay and refusing to take cognizance in the matter. In view of this Court, the learned Chief Judicial Magistrate, Nainital had committed a patent illegality by dismissing the complaint on the delay. As it has been argued that the complaint itself though was ordered to be returned by the court at Mumbai on 17.11.2014, but effectively from the Registry the plaint was received on 30.12.2014 and it was filed before appropriate court on 06.01.2015 i.e. within a period of thirty days. This argument, however, is vehemently opposed by the learned Senior counsel for the respondent/accused on grounds that the order for returning was filed on 17.11.2014 and it would be deemed to have been the date and limitation would be calculated from the said date alone. 11. Even if it is assumed for the sake of argument that the applicant had filed the complaint at Nainital on its return to him at Mumbai, after the stipulated period of thirty days, as given in the judgment of the Hon’ble Apex Court, yet the learned Magistrate was not divested of its power under Section 142(2) of the Negotiable Instruments Act, and he always had powers to condone delay if reasonable explanation is given. Admittedly in this case in the original complaint was filed by the complainant well within the stipulated time at the courts in Mumbai. Thereafter, due to the change in the law, he was compelled to get his complaint filed before the court at Nainital which is far away from Mumbai. Delay, if any, caused is reasonable, as it is only of a few days. The learned Chief Judicial Magistrate, Nainital, however, had refused to apply his mind to the controversy by holding that since the Hon’ble Apex Court had directed that after return of complaint it is to be filed within thirty days, he has no option but to reject it since it is beyond a period of thirty days. This is not correct. Since the initial complaint was filed within the stipulated time at Mumbai. Therefore, the delay is liable to be condoned. It is hereby condoned. Let the matter be taken up before the court below. This is not correct. Since the initial complaint was filed within the stipulated time at Mumbai. Therefore, the delay is liable to be condoned. It is hereby condoned. Let the matter be taken up before the court below. Thereafter, the court below shall proceed in the light of the new amendment under Section 142/142(A) of the Negotiable Instruments Act and pass appropriate orders, considering the aspect of jurisdiction as well, in the light of the new amendment. 12. In view of the above, the matter stands disposed.