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2016 DIGILAW 1049 (ORI)

Neeraj Pandey v. State of Orissa

2016-11-07

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. 1. The petitioner Neeraj Pandey has filed this application under section 482 Cr.P.C. to quash the order dated 25.04.2012 passed by the learned S.D.J.M., Kendrapara in I.C.C. Case No. 57 of 2012 in taking cognizance of the offence under section 138 of the Negotiable Instruments Act, 1881. 2. It is the prosecution case that the petitioner is the proprietor of M/s. Neeraj Pandey & Co. which is a registered firm, which carries/deals with supply of construction materials to the Government and private organizations all over the State and across the State so also with the procurement of ores from the mines area on contract basis from the date of inception of the firm. 3. It is further case of the prosecution that the petitioner approached the opp. party no.2 to lease out his Wagon Drilling Machine on monthly rent basis to utilize the same in Dankari Stone Quarry at Chadeidhara to raise stone for supply of materials to different organizations to which the opp.party no. 2 agreed and the petitioner started paying monthly rent to the opp. party no.2 since July, 2011. It is further case of the prosecution that the opp. party no.2 was entitled to get an arrear dues to the tune of Rs.1,47,666/- from the petitioner towards dues of the Wagon Drilling Machine and for the purpose of disbursement of the aforesaid amount, the petitioner issued a cheque bearing No. 054666 dated 22.7.2011 of Axis Bank Ltd., Korba (CT), Korba of his S.B. A/c. No. 307010200002219 and the said cheque could not be honoured by the opp. party no.2 due to insufficient fund in the account of the petitioner. 4. The main contentions raised by the learned counsel for the petitioner while challenging the impugned order of cognizance is that the petitioner and the opp. party no.2 are staying at Cuttack and the place of operation of business is within Cuttack district and all the transactions were made through Axis Bank Ltd. situated at Cuttack and only because the lawyer’s notice was issued from Kendrapara, the complaint petition should not have been filed before the learned S.D.J.M., Kendrapara and therefore, the case should be quashed or the case should be transferred to the competent Court at Cuttack to adjudicate the matter in accordance with law. 5. 5. The learned counsel for the petitioner placed reliance in the case of M/s. Bridgestone India Pvt. Ltd. -Vrs.- Inderpal Singh reported in 2016 (I) Orissa Law Reviews (SC) 261, wherein it is held in Paragraph 13 as follows:- “13. Since cheque No. 1950, in the sum of Rs. 26,958/-, drawn on the Union Bank of India, Chandigarh, dated 02.05.2006, was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the appellant on 04.08.2006, we are of the view that the Judicial Magistrate First Class, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of the Negotiation Instruments Act, 1881, after the promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015. The words “…. as if that sub-section had been in force at all material time…” used with reference to Section 142(2), in Section 142A (1) gives retrospectivity to the provision.” 6. Another decision was brought to the notice of this Court in the case of Shivgiri Associates & Ors. -Vrs.- Metso Mineral (India) Pvt. Ltd. reported in (2015) 60 Orissa Criminal Reports (SC) 464 wherein it is held as follows:- “2.… It is no longer arguable that the issuance of the notice has relevance to the question of criminal territorial jurisdiction under section 138 of the N.I. Act. In the case in hand, the dishonoured cheques were drawn on the Appellant’s Bank, namely, Axis Bank, Bangalore. Subsequently, on presentation of the cheques for encashment by the Respondent through its Bankers, namely, Standard Chartered Bank, Bangalore, they were dishonoured. It is interesting to note, even though it may not be relevant for the present considerations, that the Respondent has filed a suit for recovery of money in New Delhi, repeatedly reiterating that the cause of action arose solely and squarely in New Delhi. 3. It appears that the learned Judicial Magistrate, First Class (Special Court), District Gurgaon, Haryana, on 14.6.2010 issued Summons to the Appellant. The Appellant thereupon approached the High Court of Punjab & Harryana at Chandigarh, which passed the impugned order. On 23.09.2013, this Court issued notice and also ordered that proceedings before the Trial Court shall remain stayed. It is evident, therefore, that evidence, post-summoning, has not been recorded. 4. The Appellant thereupon approached the High Court of Punjab & Harryana at Chandigarh, which passed the impugned order. On 23.09.2013, this Court issued notice and also ordered that proceedings before the Trial Court shall remain stayed. It is evident, therefore, that evidence, post-summoning, has not been recorded. 4. It is in these circumstances that we allow the Appeal, as Courts at Gurgaon do not possess territorial jurisdiction to entertain the present proceedings under Section 138 of the NI Act solely because, on the instructions of the Respondent, a legal notice of demand has emanated from that city. The Complaint be returned to the Complainant/Respondent for refilling in the appropriate Court at Bangalore, Karnataka. As mentioned in Dashrath Rupsingh Rathod: (2014) 59 Orissa Criminal Reports (SC) 289, if the complaint is re-filled in the appropriate Court in Bangalore within 30 days, it shall be deemed to have been filed within limitation. The interim orders stand recalled, accordingly.” 7. In view of the aforesaid two decisions of the Hon’ble Supreme Court, the learned counsel for the opposite party has got no objection so far as the transfer of the complaint petition from the Court of learned S.D.J.M., Kendrapara to the Court of learned S.D.J.M. (S), Cuttack. 8. Considering the submissions made by the learned counsels for the respective parties and taking into account the law laid down by the Hon’ble Supreme Court and the fact that the cheque in question was presented at Axis Bank at Cuttack, while not interfering with the impugned order of taking cognizance, I direct that I.C.C. Case No. 57 of 2012 pending in the Court of learned S.D.J.M., Kendrapara be transferred to the Court of learned S.D.J.M. (S), Cuttack for disposal in accordance with law. 9. A copy of the order be sent to both the Courts i.e. learned S.D.J.M., Kendrapara as well as learned S.D.J.M. (S), Cuttack. Immediately after receipt of the order, the learned S.D.J.M., Kendrapara shall send the records of I.C.C. Case No. 57 of 2012 to the Court of learned S.D.J.M. (S), Cuttack who on receipt of the same, shall try to dispose of the case as expeditiously as possible in accordance with law preferably by the end of December, 2016. Since, the petitioner has already entered appearance in the complaint case proceeding, the parties are directed to co-operate the learned Trial Court for expeditious disposal. 10. Since, the petitioner has already entered appearance in the complaint case proceeding, the parties are directed to co-operate the learned Trial Court for expeditious disposal. 10. With the aforesaid observation, the CRLMC application is disposed of.