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2017 DIGILAW 176 (JK)

Subash Mehra v. Irshad Hamid

2017-04-06

ALI MOHAMMAD MAGREY

body2017
JUDGMENT : Ali Mohd. Magrey, J. 1. In the instant petition filed under section 561-A Cr. P.C. petitioner seeks quashment of the complaint titled Israr Hamid v. Subash Mehra pending in the Court of First Additional Munsiff (Judicial Magistrate, 1st Class), Srinagar, on the grounds detailed out in the petition, with particular reference that the trial Magistrate has no jurisdiction as the Cheque has been issued at Jammu and has been send to the Jammu Central Co-operative Bank for collection. It is also submitted that the trial Magistrate has no jurisdiction as the notice has been served on the petitioner at Jammu and mere serving of notice at Srinagar does not form a ground for maintaining the writ petition in Srinagar. 2. It is further submitted that assuming for the sake of arguments that the complaint was rightly filed by the respondent at Srinagar and that the trial Court had jurisdiction to proceed with the complaint, yet it is submitted that before taking cognizance of the complaint, the trial court was supposed to examine the complaint and the witnesses present, if any, upon oath and the substance of the examination had to be reduced in writing and had to be signed by the complainant and the witnesses as also by the Magistrate. Petitioner has also pleaded inconvenience with reference filing of compliant by respondent at Srinagar as the petitioner being a kidney patient. 3. Law on the subject is no more res integra after Parliament amended Section 142 of the Negotiable Instruments Act, 1881. 4. Learned counsel for the respondent has invited my attention to the Negotiable Instruments (Amendment) Second Ordinance, 2015. Perusal of section 1(2) thereof reveals that the Ordinance would be deemed to have come into force with effect from 15.06.2015. It is therefore, pointed out to the Court that the Negotiable Instruments (Amendment) Second Ordinance, 2015 is in force. My attention was then invited to the Section 3 of the Negotiable Instruments Act, 1881, came to be amended, and also, Section 4 thereof, whereby, Section 142-A was inserted into the Negotiable Instruments Act. Section 3 and 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015 are being extracted hereunder: 3. My attention was then invited to the Section 3 of the Negotiable Instruments Act, 1881, came to be amended, and also, Section 4 thereof, whereby, Section 142-A was inserted into the Negotiable Instruments Act. Section 3 and 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015 are being extracted hereunder: 3. In the principal Act, section 142 shall be numbered as Sub-section (1) thereof and after Sub-section (1) as so numbered, the following Sub-section shall be inserted, namely:- (2) The offence under section 138 shall be inquired into and tried only be a court within whose local jurisdiction. (a) if the cheque is delivered for collection through an account, the branchy 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:- 142-A. (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 transferred under this Ordinance, 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 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 in 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, 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 sub-section had been in force at all material times." 5. A perusal of the amended Section 142 (2), extracted above, leaves no room for any doubt, especially in view of the explanation thereunder, that with reference to an offence under Section 138 of the Negotiable Instruments Act, 1881, the place where a cheque is delivered for collection i.e., the Branch of the Bank of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction. 6. My this view is fortified by the Judgment of Hon'ble Supreme Court in case M/s. Bridgestone India Pvt. Ltd. v. Inderpal Singh, reported in 2016 Cr. L.J. 553. 7. Under these circumstances I decline to exercise discretion and do not interference with the order passed by learned Magistrate taking cognizance of the complaint and issuing process. The petition is therefore, dismissed. 8. No order as to costs. Registry to send down the trial court records forthwith along with copy of order. Learned Magistrate shall issue notice to the appearing parties before proceeding further.