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2016 DIGILAW 3627 (ALL)

Mohd. Haroon Qurreshi v. State of U. P.

2016-11-04

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. Heard learned counsel for the applicant, learned A.G.A. for State and perused the record. This application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the impugned order dated 9.5.2016 passed by learned Civil Judge (Senior Devision)/Fast Track Court, Rampur in Complaint Case No. 3230 of 2014 (Smt. Tanisha Goyal Vs. Mohd. Haroon Qurreshi) under Section 138 Negotiable Instrument Act (hereinafter shall be denoted as N.I. Act), Police Station Civil Lines, District Rampur and order dated 3.9.2016 passed by learned Sessions Judge, Rampur in Criminal Revision No. 170 of 2016. Submission of the learned counsel for the applicant is that complaint filed for the offence under Section 138 of Negotiable Instrument Act was withdrawn by the complainant due to the effect of the judgment of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod vs State Of Maharashtra & Another, 2014 SAR page 966 Case. One month time was allowed to the complainant to file the complaint before the competent court having jurisdiction to deal with the matter. Complainant did not file complaint within the time allowed by the court concerned. Later on, after the expiry of the period provided to file the complaint before the competent court, the same complaint was filed again in the same court. Concerned Magistrate without taking into consideration its earlier order took the cognizance in the matter. It was next submitted that complaint which had been earlier withdrawn could not be entertained as there is no provision provided under Cr.P.C. or N.I. Act for recall of the earlier order passed in the matter. It was also submitted that revisional court did not consider the submissions raised on behalf of the applicant in right perspective and rejected the revision illegally on insufficient ground. The complaint was barred by time. There was no application for condonation of delay occurred in filing the complaint, hence on this score also complaint was barred. On the other hand, learned A.G.A. argued that due to amendment made in the Negotiable Instrument Act, the effect of the pronouncement of Dashrath Rupsingh Rathod (supra) case had come to an end, therefore, complaint was only entertainable in the court situated at Rampur where the cognizance has been taken. On the other hand, learned A.G.A. argued that due to amendment made in the Negotiable Instrument Act, the effect of the pronouncement of Dashrath Rupsingh Rathod (supra) case had come to an end, therefore, complaint was only entertainable in the court situated at Rampur where the cognizance has been taken. Since earlier complaint had not been dismissed but was only withdrawn to file before the court situated at Moradabad due to the effect of Dashrath Rupsingh Rathod (Supra) case, therefore, in view of amendment in N.I. Act the cognizance taken by the concerned Magistrate on the complaint cannot be said to be illegal. Although delay condonation application has not been moved yet in the facts and circumstances of the case, there was no occasion to file delay condonation application. I have considered the rival submissions and gone through the entire record. Perusal of the record would show that complaint had been filed under Section 138 of Negotiable Instrument Act in the court situated at Rampur, Sessions Division which had been withdrawn earlier at the stage of evidence for filing the same before the competent Court having jurisdiction to deal with the matter at Moradabad Sessions Division because of the effect of the judgment of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod (supra) case. Parliament have nullified the effect of Dashrath Rupsingh Rathod (supra) case with the amendment in Negotiable Instrument Act. Hence in the present matter jurisdiction to try the present matter was lying with the court situated at Rampur Sessions Division. Although complaint withdrawn earlier was filed in the same court after expiry of one month period provided in the order but this fact alone is not sufficient to set-aside the cognizance taken by the learned Magistrate on the complaint filed subsequently in the same court. It is made clear that if Dashrath Rupsingh Rathod (supra) case would not have been pronounced the complaint would remain continued in the same court as it had been filed within the time prescribed in the Act. Thus, in the facts and circumstances of the case, the observations recorded by the revisional court that issue of condonation of delay would only arise when the compliant would have been filed before the court situated at Moradabad is correct. Thus, in the facts and circumstances of the case, the observations recorded by the revisional court that issue of condonation of delay would only arise when the compliant would have been filed before the court situated at Moradabad is correct. Therefore, the cognizance taken by the concerned Magistrate is in accordance with law and no interference is required by this Court as there is no illegality or infirmity in the impugned orders. It is not a case of restoration of the earlier complaint as complaint was never dismissed but it was simply a case of withdrawal of the complaint for filing the same before another court having jurisdiction to deal with the matter. Thus for the reasons mentioned above, no case is made out to exercise the jurisdiction u/s 482 Cr.P.C. Thus, the application being devoid of merit is hereby dismissed.