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Himachal Pradesh High Court · body

2016 DIGILAW 967 (HP)

Dharam Chand v. Inderjeet Singh

2016-05-30

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. The present criminal revision petition filed under Section 397 Cr.PC read with Section 401 Cr.PC, is directed against the order passed by the learned Judicial Magistrate, Ist Class, Dalhousie, District Chamba, H.P., passed in Complaint No. 10 of 2014 dated 21.3.2015, whereby the complaint filed by the petitioner (hereinafter referred to as the complainant) was returned for filing the same before the appropriate Court having jurisdiction to try the case. 2. Perusal of the records suggests that complainant filed complaint under Section 138 read with Section 142 of the Negotiable Instrument Act, 1881 as amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, before the learned Judicial Magistrate Ist Class Dalhousie, District Chamba, (HP), specifically alleging therein that in the discharge of liabilities, the accused issued a cheque dated 3.6.2014 bearing No. 219678 amounting to Rs. 57,000/- of his account No. 30294165112 of State Bank of India Branch Transport Nagar Narwal, Jammu, J&K, in favour of the complainant, however, on depositing the aforesaid cheque with SBI Branch Dalhousie, District Chamba, HP, same was returned vide memo dated 4.6.2014 endorsing therein “Stop Payment”. Accordingly, the complainant served a notice upon the accused on 20.6.2014 calling upon him to make the payment within 15 days from the receipt of notice but it appears that accused failed to make the payment and, as such, complainant was compelled to file a complaint under Section 138 read with Section 421 Negotiable Instrument Act, as has been stated above. 3. Feeling aggrieved and dissatisfied with the order dated 21.3.2015 passed by learned trial Court, complainant approached this Court by way of revision petition. 4. I have heard learned counsel for the parties as well carefully gone through the record. 5. It appears that learned trial Court issued notices to the respondents, which were not received back. But on 21.3.2015, court below taking cognizance of law laid down by Hon’ble Apex Court in case titled Dashrath Rupsingh Rathor V. State of Maharashtra & Anr., in Criminal Appeal No. 2287 of 2009 decided on 1.8.2014, returned the complaint to the complainant for filing the same before appropriate court having jurisdiction to try the case. It is pertinent to notice that Hon’ble Apex Court passing judgment referred in para supra passed following orders:- "58. It is pertinent to notice that Hon’ble Apex Court passing judgment referred in para supra passed following orders:- "58. To sum up: 58.1 An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. 58.2 Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138. 58.3 The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if (a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue. (b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque, and (c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice. 58.4 The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. 58.5 The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the court till such time cause of action in terms of clause (c) of proviso accrues to the complainant. 58.6 Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. 58.7 The general rule stipulated under Section 177 CrPC applies to cases under Section 138 of the Negotiable Instruments Act. 58.6 Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. 58.7 The general rule stipulated under Section 177 CrPC applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof." 6. Careful reading of the judgment referred supra leaves no doubt in the mind of the Court that order dated 21.3.2015 was passed correctly by the learned trial Court at that relevant time and, as such, same cannot be termed illegal in any manner. However, with the fresh enactment i.e. Negotiable Instruments Act Amendment Second ordinance, 2015 (hereinafter referred to as the “Ordinance”), position has changed and now the offence under Section 138 can be taken cognizance and tried by Court, within whose local jurisdiction, cheque is delivered for collection through an account. Perusal of Section 12 of ordinance reveals that ordinance would be deemed to have come into force with effect from 15.6.2015, meaning thereby, Ordinance is in force. By aforesaid amendment, original Section142 of the Negotiable Instrument Act 1881, has been amended and Section 142 (a) has been inserted into Negotiable Instrument Act. Sections 3 and 4 of Negotiable amendment Second ordinance 2015 are being reextracted hereinafter:- "3. By aforesaid amendment, original Section142 of the Negotiable Instrument Act 1881, has been amended and Section 142 (a) has been inserted into Negotiable Instrument Act. Sections 3 and 4 of Negotiable amendment Second ordinance 2015 are being reextracted hereinafter:- "3. In the principal Act, section 142 shall be numbered as sub- section (1) thereof and after subsection (1) as so numbered, the following subsection shall be inserted, namely:- (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." 4. In the principal Act, after section 142, the following section shall be inserted, namely:- 142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Ordinance, as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in subsection (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 subsection (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 this Ordinance, 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, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that subsection had been in force at all material times." 7. Careful reading of amended Section 142 (2) reproduced above, especially in view of the explanation thereunder suggests that the place where cheque is delivered for collection that branch of the bank of the payee or holder in due course, where drawee maintains an account, would be determinative of the place of territorial jurisdiction. 8. The Hon’ble Apex Court while dealing with the similar proposition in M/s Bridgestone India Pvt. Ltd. v. Inderpal Singh in Criminal appeal No. 1557 of 2015 decided on 24.11.2015, as in the extant case, passed following orders:- “12. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod's case, would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises. 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 Negotiable 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 times..." used with reference to Section 142(2), in Section 142A(1) gives retrospectivity to the provision.” 9. Accordingly, keeping in view the amendment carried out in the Act as well as law laid down by the Hon’ble Apex Court, this court is of the view that complainant is entitled to file/pursue its case in the court of learned Judicial Magistrate Ist Class, Dalhousie, HP. Since in the present case, the aforementioned cheque has been issued to the complainant by the respondent of his account No. 30294165112 of State Bank of India Branch Transport Nagar Narwal, Jammu, J&K Branch, I am of the view that learned Judicial Magistrate Ist Class has the territorial jurisdiction to take cognizance of the proceedings initiated by the complainant under Section 138 of Negotiable Instrument Act. Moreover, careful reading of 142A (1) clearly suggests that amendment carried out under Section 142 shall have retrospective effect. 10. Consequently in view of the aforesaid discussion as well as law laid down by the Hon’ble Supreme Court, present revision petition is allowed. Order dated 21.3.2015, passed by the learned trial Court in complaint No. 10 of 2014 is quashed and setaside. Further learned trial Court is directed to decide the complaint No. 10 of 2014 afresh in accordance with law, as has been observed above. Needless to say that plea of limitation will not come in the way of complainant, as immediately after passing of the impugned order, complainant approached this Court and matter remained pending till its final disposal.