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2016 DIGILAW 2847 (ALL)

JAGDISH v. STATE OF U. P.

2016-08-19

PRABHAT CHANDRA TRIPATHI

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JUDGMENT Hon’ble Prabhat Chandra Tripathi, J.—Heard Sri Anil Kumar Mishra, learned counsel for the revisionist, Sri Surendra Tiwari, learned counsel for the opposite party No. 2 and the learned A.G.A. for the State and perused the record. 2. This criminal revision has been filed against the order dated 23.8.2014 passed by the learned Additional Chief Judicial Magistrate, Sonebhadra in Case No. 1038 of 2014 (Anand Sagar v. Jagdish) by which the learned Magistrate has summoned the revisionist, Jagdish under Section 138 of the Negotiable Instruments Act, 1881 and directed the complainant, opposite party No. 2, Anand Sagar to take steps within 10 days under Section 204 Cr.P.C. 3. Brief facts in narrow compass are narrated as follows : 4. Revisionist, is a registered contractor in the name and style of M/s J.K. Construction Company, Tilaulikalan, Police Station and Tehsil Robertsganj, District Sonebhadra. As per the complaint, a cheque bearing No. 043055 was issued on 4.4.2014 in favour of opposite party No. 2, Anand Sagar which was dishonoured by the drawee bank i.e. Bank of India, Mirzapur Branch, Wellesley Ganj, District Mirzapur. 5. Since, the blank cheque was missing, information in this regard was furnished by the revisionist to the bank on 4.4.2014 and thereafter, the concerned bank stopped the payment of the cheque. However, the concerned cheque was presented by the opposite party No. 2 on 11.4.2014 before the concerned bank and the same was returned with remark “Payment stopped by the drawer”. 6. The Court of the learned Additional Chief Judicial Magistrate, Sonebhadra did not have territorial jurisdiction to summon the revisionist, Jagdish in view of Sections 177, 178, 179, 220 (1), 182 and 184 Cr.P.C. 7. Reliance has been placed by the learned counsel for both the parties on the judgement of the Supreme Court in Dashrath Rupsinh Rathod v. State of Maharashtra and another, U.P. Criminal Rulings, Vol. XLV 2014 (2), 630. Para-20 of the judgement is quoted as below : “20. 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. 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 accused/respondents 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 entirety 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 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 accused/respondent 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.” 8. 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. Havingconsidered the facts mentioned as above and the observations made by the Supreme Court in Dashrath Rupsinh Rathod (supra), the complaint being Case No. 1038 of 2014 (Anand Sagar v. Jagdish), under Section 138 of the Negotiable Instruments Act, 1881 instituted before the Court of the learned Additional Chief Judicial Magistrate, Sonebhadra, Police Station Karma, District Sonebhadra is returned to the complainant Anand Sagar for filing in the proper Court (if he wishes to do so) in consonance with the exposition of the law expressed by the Supreme Court in Dashrath Rupsinh Rathod (supra). If such complaint is filed within thirty days of it’s return, it shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred. 9. The criminal revision is accordingly disposed of. 10. Interim order, if any, is vacated. ———————