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2017 DIGILAW 701 (ALL)

JITENDRA GUPTA v. STATE OF U. P.

2017-03-06

NAHEED ARA MOONIS

body2017
JUDGMENT : NAHEED ARA MOONIS, J. 1. Heard learned counsel for the applicant and the learned A.G.A. for the State and perused the record. 2. The instant application has been filed by the applicant with a prayer to quash the order dated 19.11.2015 passed by the learned Chief Judicial Magistrate, Etah in Case No.1588 of 2011, Ramesh v. Jitendra, under Section 138 of the Negotiable Instrument Act, P.S. Kotwali Nagar, district Etah. 3. It is submitted by the learned counsel for the applicant that in a business relationship between the applicant and the opposite party no.2 in respect of supply of wheat, the applicant had given a cheque of Rs.8,50,000/- drawn in favour of the opposite party no.2. It is further submitted that when the prices of wheat were increased, the opposite party no.2 refused to supply the goods and, therefore, the applicant asked the bank to stop honour of the cheque. The aforesaid cheque was presented by the opposite party no.2 to the drawee bank and the same was dishonoured mentioning the reason that a request to stop payment has been made by the applicant. It is next submitted that the applicant had already paid the cheque amounting to Rs.8,50,000/- but the goods were not supplied by the opposite party no.2. The opposite party no.2 has filed the present complaint on 4.8.2011 containing absolutely false and vague allegations only in order to cause sheer harassment of the applicant. 4. On the basis of the statement of the complainant recorded u/S 200 Cr.P.C. and documentary evidence viz. notice receipt, original cheque, slip of dishonour cheque of Punjab National Bank and the statement of P.W.-1, Piyush Goel recorded u/S 202 Cr.P.C., the court below found prima facie case is made out against the applicant, hence passed the order dated 18.10.2011 summoning him to face trial under Section 138 of the Act. The applicant surrendered on 15.5.2013 and was released on bail. Thereafter the court below has also proceeded to record evidence and the application moved by the applicant u/S 245(2) Cr.P.C. 5. The applicant surrendered on 15.5.2013 and was released on bail. Thereafter the court below has also proceeded to record evidence and the application moved by the applicant u/S 245(2) Cr.P.C. 5. It is further submitted that the court of Chief Judicial Magistrate, Etah has no jurisdiction to try the offence in view of the decision of Hon'ble the Apex Court in Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 which was decided on 1.8.2014 wherein after considering the provision of Section 142 of the Act with respect to cognizance of offences, the Hon'ble Apex Court has held that in case 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. It is further held that the prosecution in cases where the cheque is dishonoured under Section 138 of the Act, the case be lodged against the drawer of the cheque only before the court within whose jurisdiction dishonour of cheque takes place, except in situation where the offence of dishonour of cheque punishable under Section 138 of the Act 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 under provision of Section 182(1) read with Section 184 and 220 Cr.P.C. thereof. 6. It is further submitted that in view of the aforesaid decision of Hon'ble the Apex Court the cheque which was given by the applicant at Varanasi and the cheque was dishonoured by the bank the court where the cheque was issued has the jurisdiction to try the offence. Relying upon the decision of Hon'ble the Apex Court in Dashrath Rupsingh Rathod (supra), the learned Magistrate, Etah by order dated 25.2.2015 has returned the case of the complainant to file before the appropriate court. The learned Magistrate has categorically held that the cheque was dishonoured not within its jurisdiction and as such the court has no jurisdiction to try the offence. The said order was passed on 25.2.2015 relying upon the decision of Hon'ble Apex Court which was decided on 1.8.2014. The learned Magistrate has categorically held that the cheque was dishonoured not within its jurisdiction and as such the court has no jurisdiction to try the offence. The said order was passed on 25.2.2015 relying upon the decision of Hon'ble Apex Court which was decided on 1.8.2014. Later on an amendment came into force on 15.6.2015 after passing of the order by the learned Magistrate and pursuant to the amendment of Section 142 of the Act by inserting Section 142(A), it was provided that all the cases arising out of case u/S 138 of the Act which were pending in any court shall be transferred to the court having jurisdiction. 7. The contention of the learned counsel for the applicant is that pursuant to the amendment came into force on 15.6.2015, it was directed that the offence u/S 138 of the Act shall be inquired and tried by the court where the payee or holder in due course, as the case may be maintained the account is situated or if the cheque issued by the payee or holder in due course the branch of the drawee bank where the drawer maintains. By virtue of this amendment the cheque which was dishonoured as presented by the opposite party no.2, an application was moved by the opposite party no.2 that the case shall be tried by the court of Chief Judicial Magistrate, Etah only. He moved an application on 30.6.2015 for re-questioning the entire record as the court at district Etah has jurisdiction pursuant to the amendment came into force. 8. It is further submitted that learned Magistrate by the order impugned has passed the order on 19.11.2015 that in view of the amendment came into force on 15.6.2015 the court has jurisdiction to try the offence and as such registered the case to its original number by recalling its own order dated 25.2.2015. Therefore, the learned Magistrate has gone beyond jurisdiction by completely given go bye the direction of the Hon'ble Apex Court which was passed much earlier to the amendment came into force which still hold goods and merely because the amendment which came into force subsequently the court below has proceeded to pass the order to try the offence when he has no jurisdiction to recall its own order. Even otherwise, no prima facie case is made out against the applicant and as such continuance of the proceeding against the applicant is nothing but an abuse of process of law liable to be quashed. 9. Per contra learned A.G.A. has contended that from bare perusal of the complaint, it is evidently clear that the cheque amounting to Rs.8,50,000/- which was given to the complainant drawn on Punjab National Bank, Visheshwar Ganj, Varanasi was signed by the applicant and handed over to the opposite party no.2 which was the balance amount of total sale transaction of Rs.7906978/- for the supply of wheat and rice, out of which, Rs.69 lacs was transferred through RTGS in the account of the complainant and the remaining balance amount was Rs.10,60978/- and the cheque of Rs.8,50,000/- was given by the applicant duly signed by him. When the cheque was presented at Punjab National Bank, Branch Etah by the complainant in his account, it was returned with the endorsement of insufficient fund on 6.4.2011. Despite telephonic conversation and giving statutory notice, the balance amount was not paid by the applicant and hence the demand notice was given by the complainant, though duly served upon him, but returned by him which shows the ulterior motive of the applicant to commit fraud with the opposite party no.2 and as such the defence of the applicant that the wheat was not supplied by the opposite party no.2 due to increase price of wheat is absolutely incorrect. 10. It is further contended that the learned Magistrate has passed the order after taking into account the documentary evidence as well as oral evidence of P.W-1, Piyush Goel under Section 202 Cr.P.C. and the statement of the complainant under Section 200 Cr.P.C. and hence passed the order summoning the applicant to face trial under Section 138 of the Act. Thereafter continuously non-bailable warrant and the proceeding u/S 82/83 Cr.P.C. were initiated against him and at a very belated stage, he surrendered before the court concerned and was released on bail. Thereafter on successive dates the applicant did not appear before the court concerned. Even from bare perusal of the order-sheet it is also clear that the complainant on account of delay in proceeding against the applicant, approached this Court by way of filing an application (Criminal Misc. Application (u/S 482 Cr.P.C.) No.28792 of 2014) seeking expeditious disposal of the case. Thereafter on successive dates the applicant did not appear before the court concerned. Even from bare perusal of the order-sheet it is also clear that the complainant on account of delay in proceeding against the applicant, approached this Court by way of filing an application (Criminal Misc. Application (u/S 482 Cr.P.C.) No.28792 of 2014) seeking expeditious disposal of the case. Despite direction of this Court to the court below to conclude the proceeding within six months from the date of the order i.e. 31.7.2014, an objection was filed by the applicant raising the plea of jurisdiction of the court to try the offence relying upon the decision of Hon'ble the Apex Court in Dashrath Rupsingh Rathod (Supra) which was decided only on 1.8.2014. Learned Magistrate considering the dictum of the Hon'ble Apex Court had passed the order dated 25.2.2015 for remiting the case to the court of jurisdiction where the cheque was dishonoured. Later on when the amendment came into force on 15.6.2015 with regard to taking cognizance of offence and place of jurisdiction, the complainant had rightly moved an application that the court at district Etah has jurisdiction to try the offence, in view of the amendment and hence the record be summoned forthwith. On that basis the learned Magistrate has passed the order dated 19.11.2015 and hence in any circumstance, it cannot be termed as the learned Magistrate has recalled his own order by allowing the application moved by the complainant. 11. It is further contended that the defence of the applicant cannot be considered in view of the amendment came into force on 15.6.2015 and the court at district Etah has jurisdiction to try the offence. The applicant is trying to delay the proceeding which is pending since 2011, hence the learned Magistrate has committed no illegality in allowing the application of the complainant. Therefore, the applicant does not deserve any indulgence. 12. I have considered the submissions of the learned counsel for the parties and having gone through the record. 13. The moot question is involved as to whether the order dated 1.8.2014 of Hon'ble the Apex Court will prevail over the amendment which came subsequently and whether the amendment which came into force on 15.6.2015 can be applied retrospectively. 12. I have considered the submissions of the learned counsel for the parties and having gone through the record. 13. The moot question is involved as to whether the order dated 1.8.2014 of Hon'ble the Apex Court will prevail over the amendment which came subsequently and whether the amendment which came into force on 15.6.2015 can be applied retrospectively. As submitted by the learned counsel for the applicant that unless it is mentioned that the amendment will apply retrospectively the order dated 1.8.2014 passed by Hon'ble the Apex Court in Dashrath Rupsingh Rathod (Supra) will hold good, this Court is of the view that the amendment came into force on 15.6.2015 whereas the judgment of Hon'ble Apex Court in respect of taking cognizance as provided under Section 142 of the Act was passed on 1.8.2014. While making amendment under Section 142 of the Act very precaution has been taken. The learned counsel for the applicant has challenged the validity of sub-Section 2 of Section 142 and 142 A of the Act which came into force on 16.6.2015. The Negotiable Instruments (Amendment) Ordinance, 2015 and it has been mentioned that it shall come into force at once, is delineated as under: 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 by a court within whose local jurisdictions. 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, 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". Further, to inter-alia clarify the position regarding the pending/transferred cases, the said Ordinance, provides for insertion of new Section 142A. "142A. Further, to inter-alia clarify the position regarding the pending/transferred cases, the said Ordinance, provides for insertion of new Section 142A. "142A. Validation for transfer of pending cases.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction 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 Act, as if that subsection 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 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 7 of 14 jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, 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 sub-section had been in force at all material times." 14. In view of the above, it has been specifically provided that all the cases arising out of Section 138 of the Act which were pending in any court whether filed before it or transferred to it before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the court having jurisdiction under sub-Section 2 of Section 142 of the Act as if that sub-Section has been enforced at all material times. In the principal Act Section 142 of the Act it was numbered as sub-Section 1 and after sub-Section 1, sub-Section 2 of Section 142 of the Act has been inserted as clearly mentioned above. In this view of the matter, if the case is pending before any court and brought to the notice of the court and then the court shall transfer the case, if any, having the jurisdiction under sub-Section 2 of Section 142 of the Act before whom initially the case was filed and was pending as if that sub-Section has been enforced at all material times. With all humility at the command of this Court the case of Dashrath Rupsingh Rathod (Supra) is of prior to the amendment inserted as Section 142(A). 15. The Hon'ble Apex Court in various decisions has clearly held that the law which is to be applied in a case is the law prevailing on the date of the decision. The Hon'ble Apex Court has held that the application has to be decided on the basis of the law exists on the date of the decision and not on the basis of the law prevailing on the date of the submission of the application. In V. Karnal Durai v. District Collector, Tuticorn, (1999) 1 SCC 475 wherein it has been held that if during the pendency of an application for granting of a mining lease the rules are amended, the application is to be decided as per the amended rules. Therefore, mere pendency of application would not create any legal right which is to be decided as per the law applicable on the date of the decision. 16. Thus without going into the merits of the case which consists of disputed question of fact and law, this Court does not find any merit to delve upon the same and, therefore, law which is to be applied presently is prevailing on the basis of the amendment which has been incorporated under Section 142 of the Act. Hence the learned Magistrate has committed no error in passing the order dated 19.11.2015 for trying the case as per the amended provision. Hence the learned Magistrate has committed no error in passing the order dated 19.11.2015 for trying the case as per the amended provision. If the argument of the learned counsel for the applicant is taken to be accepted and in case the case is tried by the court of Chief Judicial Magistrate, Varanasi where the cheque is said to have been dishonoured and adverse order is passed against the applicant, then the applicant will take the plea that the district court Varanasi has no jurisdiction in view of the amendment came into force on 15.6.2015. In this view of the matter, this Court is not inclined to quash the order passed by the learned Magistrate. 17. Accordingly, the application sans any merit and is dismissed. 18. The case is pending since 2011 and there is specific direction of this Court to conclude the trial within six months and there is also statutory provision to conclude the proceeding within six months from the date of filing the complaint. The purpose of filing the complaint by the opposite party no.2 would be frustrated and the delay in deciding the case has resulted into grave injustice to the opposite party no.2. It is, therefore, directed that the court below shall proceed with the aforesaid case expeditiously and conclude the proceeding, preferably within three months from the date of production of a certified copy of this order, in accordance with law on its own merit.