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2017 DIGILAW 70 (ORI)

Fairdeal Supplies Pvt. Ltd. v. M. M. T. C. Ltd.

2017-01-13

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. Heard Mr. H.M. Dhal, learned counsel for the petitioners and Mr. Bijoy Dasmohapatra, learned counsel for the opposite party. 2. The petitioners have filed this revision petition challenging the impugned order dated 20.02.2015 passed by Sri B.K. Sahoo, learned J.M.F.C., Bhubaneswar in I.C.C. Case No. 1283 of 2011 in rejecting the petition dated 27.08.2014 filed by the petitioners to transfer the case to the proper Court on the ground of jurisdiction and further holding that his Court has jurisdiction to try the complaint case under section 138 of the Negotiable Instruments Act, 1881. 3. It was contended by the petitioners before the learned Magistrate that the cheques in question were drawn on Jammu & Kashmir Bank Limited, Stephen House, Kolkata and therefore, the Court of J.M.F.C., Bhubaneswar lacks jurisdiction to try the case. Reliance was placed by the petitioners in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra and Anr. reported in (2014) 59 OCrR(SC) 289 wherein it was held that place of judicial inquiry and trial of offence must logically be restricted to where drawee bank is located. Place where complainant may present cheque for encashment would not confer or create territorial jurisdiction. Unilateral acts of the complainant in presenting a cheque at a place of his choice or issuing a notice for payment of dishonoured amount cannot arm the complainant with power to choose place of trial. 4. The learned Magistrate rejected the petition filed by the petitioners on the ground that the evidence affidavit of P.W.1 has already been filed and the case is posted for recording of the evidence of the witnesses from the side of prosecution and therefore, his Court has got jurisdiction to try the case. The learned Magistrate taken note of the observation of the Hon’ble Supreme Court in the case of Dashrath Rupsingh Rathod (supra) wherein it was held as follows:- “53(20)………..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 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.” 5. It is not disputed that even though the cheques in question were drawn on Jammu & Kashmir Bank Limited, Stephen House, Kolkata but those were presented by the opposite party-complainant in the State Bank of India, Commercial Branch, Bhubaneswar for collection and it was dishonoured. 6. Considering the amendment of section 142 as well as insertion of sub-section 142(2) and new section 142-A of the Negotiable Instruments Act, in the case of M/s. Bridgestone India Private Limited Vs. Inderpal Singh reported in (2016) 63 OCrR(SC) 178, it was held as follows:- “10…….. A perusal of the amended section 142(2), extracted above, leaves no room for any doubt, specially 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.” xxxx xx 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 case, would not stand in the way of the appellant, in so far as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises. 13. We are also satisfied, based on section 142A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod case, would not stand in the way of the appellant, in so far 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.” 7. In view of the undisputed fact that the complainant-opposite party was having an account in the State Bank of India, Commercial Branch, Bhubaneswar and the cheque in question which was issued by the petitioners was also presented for collection in the said branch for collection and it was dishonoured, I am of the view that the learned J.M.F.C., Bhubaneswar has jurisdiction to try the offence, and therefore, the learned Magistrate rightly rejected the petition filed by the petitioners to transfer the case, Accordingly, I am not inclined to interfere with the impugned order dated 20.02.2015 passed by the learned J.M.F.C., Bhubaneswar in I.C.C. Case No.1283 of 2011. 8. Since the case is of the year 2011, the learned J.M.F.C., Bhubaneswar shall do well to expedite the trial of the case and if possible, to conclude the same within a period of three months from the date of receipt of the order. 9. With the aforesaid observation, the CRLREV application is disposed of.