Janardan Nirman Pvt. Ltd. v. Era Infra Engineering Ltd.
2017-08-04
DEBI PROSAD DEY
body2017
DigiLaw.ai
JUDGMENT : Debi Prosad Dey, J. In spite of service of notice none appears on behalf of the opposite parties. The affidavit of service filed by the petitioner shall be retained with the records. Challenge in this revisional application is the order dated 3rd November, 2014 of learned Additional Chief Judicial Magistrate, Bidhannagar in case no. 2260 of 2014 (GR no. 369 of 2014) wherein and where under learned Magistrate has issued summons against the petitioner and other accused persons after examining the representative of complainant under Section 138 of the Negotiable Instrument Act. 2. Being aggrieved by and dis-satisfied with such order the petitioner has filed this revisional application on the ground that the petition of complaint is barred by the Law of Limitation in terms of the decision of the Hon'ble Supreme Court reported in 2015(1) Crimes 73 (SC) Shibgiri Associates and Ors. v. Mate so Mineral(India Pvt. Ltd.) and for non-compliance of the mandatory provision of law as contemplated under section 202 of the Code of Criminal Procedure, 1973. 3. The complainant company having its office at 153 Ground Floor, Lila House Okhla Industrial Estate-III New Delhi- 110020 and it's head office at C 56/41, Sector- 62, Noida Goutam Budha Bihar, Uttar Pradesh gave some equipment to the petitioner against rental charges and the petitioners accordingly issued two cheques of Rs. 16,00000/-(Sixteen Lakhs) and Rs. 5,00000/-(Five Lakhs) each drawn on Punjab National Bank, Sector-III, Salt Lake Calcutta- 700106 towards discharge of their part liability. The said cheques were presented for encashment with Axis Bank at Noida but the cheques were dishonoured with the remarks "payment stopped by drawer". Legal notices were duly served upon the petitioner and thereafter a petition of complaint was filed in the Court of Additional Chief Judicial magistrate, District Courts at Noida, Uttar Pradesh. Learned Additional Chief Judicial Magistrate, Goutam Budha Nagar however directed for return of such petition of complaint in terms of the decision of Hon'ble Supreme Court (Dasarot Rupra Singh Rathore v. State of Maharashtra) and directed the complainant to present the said petition of complaint before appropriate Court having jurisdiction. 4. Thereafter, the petition of complaint was filed in the Court of Ld.
4. Thereafter, the petition of complaint was filed in the Court of Ld. Additional Chief Judicial Magistrate at Bidhannagar and learned Magistrate after examining the complaint under section 200 of the Code of Criminal Procedure, 1973 issued process against all the accused persons for the offence under Section 138 of the Negotiable Instrument Act. 5. Learned Senior Advocate Mr. Moitra appearing on behalf of the petitioners contended that such petition of complaint was returned for presentation on 9th September, 2014 but the same was filed before learned Additional Chief Judicial Magistrate, Bidhannagar on 3rd November, 2014 and accordingly, the petition of complaint is barred by Limitation in view of the decision of Shibgiri Associates and Ors. (Supra). 6. Learned Advocate further contended that leaned Magistrate while issuing summons against the accused persons did not comply with section 202 of the Code of Criminal Procedure, 1973 and accordingly, the order of issuance of summons being contrary to the provisions of section 202 of the Code of Criminal Procedure, 1973 ought to be set aside in terms of the decision reported in (2014)14 SCC 638 (Vijay Dhanuka & Ors v. Najima Mamtaj & Ors.). Admittedly, it was decided by the Hon'ble Supreme Court in Shibgiri Associates and Ors (Supra) and Dasarath Rupsingh Rathore v. State of Maharashtra that the petition of complaint as contemplated in Section 138 of the Negotiable Instrument Act has to be filed within the jurisdiction of the Court, where the cheques were drawn. In other words, the cheques in the case under reference were drawn on Punjab National Bank, Secotr-III, Salt Lake, Kolkata-700106 and accordingly, the Courts having jurisdiction in respect of Punjab National Bank, Salt Lake only has had jurisdiction to entertain the application under Section 138 of the Negotiable Instrument Act. In terms of the aforesaid decision, the petition of complaint was returned to the complainant for filing the same in the Court of learned Additional Chief Judicial Magistrate, Bidhannagar. Accordingly, the petition of complaint was filed in the Court of learned Additional Chief Judicial Magistrate, Bidhannagar. Admittedly, the original petition of complaint was filed well within the period of limitation but the petition of complaint, which was returned by the learned Magistrate of Gurgaon was filed after 2 months from the date of return of petition of complaint.
Accordingly, the petition of complaint was filed in the Court of learned Additional Chief Judicial Magistrate, Bidhannagar. Admittedly, the original petition of complaint was filed well within the period of limitation but the petition of complaint, which was returned by the learned Magistrate of Gurgaon was filed after 2 months from the date of return of petition of complaint. Relying on the decision reported in Shibgiri Associates and Ors (Supra) learned Advocate for the petitioner contended that the since the petition of complaint was filed long after 30 days from the date of return of such petition of complaint, the petition of complaint ought to be treated as time barred. 7. Section 142-A has been incorporated in the Negotiable Instrument Act, 1881 on 15.06.2015. The aforesaid Section of Negotiable Instrument Act has been given retrospective effect stating inter-alia, as if that sub-Section had been in force at all material times. Secondly, it has been further provided that such cases transferred to the Court having jurisdiction notwithstanding anything contained in the Court of Criminal Procedure, 1973 or any judgment, decree, order or direction of any Court shall be deemed to have been transferred under the Negotiable Instrument Act. It is crystal clear from 142-A of Negotiable Instrument Act that the petition of complaint was in fact transferred to the Court learned Additional Chief Judicial magistrate, Bidhannagar in terms of the aforesaid Section and there is absolutely no scope to read the point of limitation in transferring such petition of complaint from the Court of learned Additional Chief Judicial Magistrate, Gurgaon to the Court of Learned Addition Chief Judicial Magistrate, Bidhannagar. In fact the impact of the decision is not available to the petitioner in view of the incorporation of Section 142-A of the Negotiable Instrument Act. It has been observed in the decision of in (2014)14 SCC 638 (Vijay Dhanuka & Ors v. Najima Mamtaj & Ors.) (Supra) that it is mandatory on the part of the Magistrate to hold an inquiry in terms of section 202 of the Code of Criminal Procedure, 1973 in case of issuance of summons to the persons residing outside the jurisdiction of the Court learned Magistrate only in order to avoid unnecessary harassment.
No mode of such inquiry has been provided either in the Code of Criminal Procedure and no guidance has been given in the decision mentioned herein above with regard to the mode and manner of such inquiry. The Hon'ble Supreme Court specifically stated in the aforesaid decision that learned Magistrate has examined the complainant on solemn affirmation alongwith two witnesses and only thereafter he had directed for issuance of process. In that view of that case, Hon'ble Supreme Court did not find any error in the order impugned holding inter-alia that due inquiry was conducted by learned Magistrate. In the case under reference the petition of complaint filed by the opposite party no. 1 is saved by Section 142-A of the Negotiable Instrument Act. Moreover, learned Additional Chief Judicial Magistrate, Bidhannagar has duly examined the representative of the complainant at the time of issuance of summons. That goes to show that learned Magistrate has duly complied the provision of section 202 of the Code of Criminal Procedure, 1973 and being satisfied about the case of the complainant, issued summons against the petitioner and other accused persons. 8. In the premises set forth above I find no merit in the revisional application and accordingly the same is dismissed. No order as to costs. 9. The criminal revisional application accordingly is disposed of in terms of the aforesaid order. 10. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.