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2017 DIGILAW 904 (ORI)

Narottam Bastia v. State of Orissa

2017-08-18

J.P.DAS

body2017
JUDGMENT J.P. DAS, J. - This is an application under Section 482, Cr.P.C. assailing the order dated 19.02.2016 passed by the learned Sessions Judge, Cuttack in Criminal Revision No.25 of 2015 setting aside the order dated 04.05.2015 passed by the learned J.M.F.C., Cuttack in I.C.C. Case No.916 of 2013 solely on the point of jurisdiction of the Court to try a case initiated under Section 138 of the Negotiable Instrument Act (for short “the Act”). 2. The present opposite party No.2 filed the private complaint against the present petitioner on 26.08.2013 alleging an offence under Section 138 of the Act with the submission that the present petitioner as accused therein had issued a cheque in his favour dated 17.07.2013 drawn on HDFC Bank, Bhubaneswar to discharge some previous liability. But the said cheque was dishonoured by the Bank due to insufficiency of funds and despite statutory notice, the accused did not make payment of the cheque amount. Learned S.D.J.M., Cuttack took cognizance of the offence and issued notice to the accused who appeared through his Counsel on 17.01.2014. On 29.01.2014 the charge was read over to the representing Lawyer and it having been denied, the case was posted for hearing. On 16.07.2014 the complainant filed an affidavit evidence and the matter was adjourned to 29.10.2014 for hearing. Thereafter the matter was further adjourned and on 28.11.2014 the Counsel for the accused filed a petition for supply of copies of documents and the case was adjourned to 20.12.2014 for filing of objection. The matter was heard on 27.01.2015 and on 04,.05.2015, the learned J.M.F.C., Cuttack to which Court the case was transferred from the Court of S.D.J.M., Cuttack passed the order holding that this Court had no jurisdiction to try the case since the cheque in this case was presented in the Bank at Bhubaneswar and taking of evidence had not started in the case, in view of the judgment passed by the Hon’ble Supreme Court in Dasharath Rupsingh Rathod vrs. State of Maharashtra and another (2014) 59 OCR (SC) 289, wherein it was held that:- “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. State of Maharashtra and another (2014) 59 OCR (SC) 289, wherein it was held that:- “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. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.” 3. The said order was challenged before the learned Sessions Judge, Cuttack in Criminal Revision No.25 of 2015. Learned Sessions Judge analyzing the position of law held in Rupsingh Rathod’s case (supra) and relying upon another decision of the Hon’ble Apex Court in Ultra Tech Cement Ltd. vrs. Rakesh Kumar Singh and another, (2015) 61 OCR (SC) 413 held that the evidence had already commenced in course of he trial before the learned trial Court and hence, the trial Court at Cuttack had jurisdiction in view of the specific observation in Rupsingh Rathod’s case. 4. The aforesaid order of the learned Sessions Judge is assailed in this present revision with the submission that the dictum of the Hon’ble Apex Court in Rupsingh Rathod’s case has been overruled by a subsequent decision of the Hon’ble Apex Court in M/s. Bridgestone India Pvt. Ltd. vrs. Inderpal Singh, reported in 2015 AIR SCW 6556. 4. The aforesaid order of the learned Sessions Judge is assailed in this present revision with the submission that the dictum of the Hon’ble Apex Court in Rupsingh Rathod’s case has been overruled by a subsequent decision of the Hon’ble Apex Court in M/s. Bridgestone India Pvt. Ltd. vrs. Inderpal Singh, reported in 2015 AIR SCW 6556. In the said case taking into consideration the amendment to the act by way of adding Section 142-A, their Lordships have held that the direction issued in Rupsingh Rathod’s case no more holds good since by way of amendment it has been held that the trial of a case under Section 138 of the Act shall only by a Court within those local jurisdiction the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in the due course, as the case may be, maintains the account is situated. It would be profitable to Court the relevant amendment for the purpose of clarity. “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 by a Court within those 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 :- 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 been 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 cases has been transferred to that Court under Sub-section (1), and such complaint is pending 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 sub-section had been in force at all material times.” 5. It was observed by their Lordships that the amended Section 142 (2) as quoted above, leaves no room for any doubt that with reference to an offence under Section 138 of the Act the place the cheque was delivered for collection would be determinative of the place of territorial jurisdiction. It was further observed by their Lordships as follows : “It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal procedure. It was further observed by their Lordships as follows : “It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142-A was inserted into the Negotiable Instruments Act. A perusal of Sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non-obstante clause in Sub-section (1) of Section 142-A. Likewise, any judgment, decree, order or direction issued by a Court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied, that the judgment rendered by this Court in Dashrath Rupsingh Rathod’s ( AIR 2014 SC 3519 ) case would also not non-suit the appellant for the relief claimed.” 6. In view of the aforesaid settled position of law, it has become clear that a proceeding under Section 138 of the Act shall be only in the Court under whose jurisdiction the cheque was presented for encashment by the payee or holder in due course where the drawee maintains the account. This is irrespective of the fact as to whether the taking of evidence has commenced in course of trial or not as was observed in the case of Rupsingh Rathod. 7. In view of the aforesaid settled position of law, the findings of the learned Sessions Judge is not sustainable in law and is accordingly set aside confirming the order passed by the learned Trial Court dated 04.05.2015 passed in I.C.C. Case No.916 of 2013. 8. 7. In view of the aforesaid settled position of law, the findings of the learned Sessions Judge is not sustainable in law and is accordingly set aside confirming the order passed by the learned Trial Court dated 04.05.2015 passed in I.C.C. Case No.916 of 2013. 8. In view of the aforesaid findings, the complaint shall be returned by the learned Trial Court to the complainant within a week of presentation of a certified copy of this order before the said Court by the present petitioner and the complainant shall be at liberty to file the same in the Court having competent jurisdiction according to law and it shall be accepted to have been filed within time if filed before the competent Court within thirty days from the date of return of the complaint to the complainant unless the initial or prior filling was itself time barred. The CRLMC is accordingly allowed. CRLMC allowed.