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Gujarat High Court · body

2019 DIGILAW 792 (GUJ)

Siddharth Exports v. Kotak Mahindra Bank Ltd.

2019-09-04

SONIA GOKANI

body2019
ORDER : 1. This is a petition under Section 482 of the Code of Criminal Procedure seeking to invoke inherent powers of this Court for quashment of the proceedings of Criminal Case No.69351 of 2018 pending before the Court of learned Additional Chief Metropolitan Magistrate (Negotiable Instrument Act) Court No.32, Ahmedabad and also to quash the order of summoning dated 23.07.2018 passed by the learned Magistrate. 2. The brief facts leading to the present case are as under:- 2.1 The petitioner No.1 is the partnership firm in the name and style as Sidharth Exports for the purpose of manufacturing the automobile parts and engaged in the export of the said products whereas, the petitioner No.2 is the partner of the firm. 2.2 The firm Sidharth Exports made a loan agreement bearing No.152532177 dated 31.07.2016 with Kotak Mahindra Bank Ltd. with personal finance, Delhi, Noida. The Kotak Mahindra Bank Ltd. financed the petitioner- firm a sum of Rs.25,00,000/- (Rupees Twenty Five Lacs) vide its letter dated 31.07.2016. 2.3 The petitioner- firm had issued the security cheques for ECS purpose but, said cheques according to the petitioner- firm, have been misused by the respondent intentionally presenting them for encashment at Ahmedabad so as to create jurisdiction within the jurisdiction of Ahmedabad. 2.4 It is also alleged that the petitioner- firm regularly paid the installment but, the Income Tax Department freezed the accounts of the petitioner – firm as per the income tax notice dated 12.02.2018 by which, Jammu and Kashmir Bank Ltd. and other bank accounts of the petitioner – firm have been freezed. The said action of freezing of the accounts is under challenge statutorily before a separate channel of appellate authority. However, after freezing the accounts, the petitioner – firm intimated the complainant bank by way of an e-mail regarding action taken by the Income Tax Department on 09.03.2018. 2.5 It is the grievance on the part of the petitioner- firm that knowing fully well the circumstances, the complainant Bank presented the security cheque bearing No.025414 putting the date and amount in its branch at Ahmedabad so that the complainant bank can show the jurisdiction by presenting the said cheque on 21.03.2018 for a sum of Rs.2,01,456/-. The same was returned with remarks 'funds insufficient'. The same was returned with remarks 'funds insufficient'. It is further the grievance of the petitioner – firm that the monthly installment by the complainant bank is Rs.89,132/- whereas, the cheque amount is different from the amount of installment. 2.6 A notice came to be issued on 13.04.2018 which is mandatory prior to filing of a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act). 3. It is the say of the petitioner that registered office of Kotak Mahindra Bank Ltd. is at Bandra (East) Mumbai and its branch office is at Satellite, Ellisbridge, Ahmedabad and, therefore, presentation of cheque at Ahmedabad branch cannot lead the jurisdiction to Ahmedabad Court. 4. A complaint came to be filed under Section 138 of the N.I. Act in May, 2018 against the present petitioners where, the Court has issued summons. On 23.07.2018, Court took cognizance against the petitioner as per Section 142 of the N.I. Act without application of mind. 5. According to the petitioner, under Section 142(2) of the N.I. Act, no jurisdiction arises at Ahmedabad because, mere presentation of the cheque for encashment cannot be treated to have given jurisdiction to the Court since provisions of the N.I. Act, Section 142(2) specifically provides that the offence under Section 138 shall be inquired into and tried only by the Court within whose 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, drawer maintains the account is situated. The explanation for the purpose of Clause – (a) states that 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. According to the petitioner, the petitioner filed an application under Section 142(2) of the N.I. Act for transfer of the case to the proper jurisdiction, however, the respondent has not replied it nor disclosed main branch of the complainant. It is the say of the petitioner that the complainant bank sanctioned loan at branch office, Noida but, the complainant presented the cheque at Ahmedabad branch intentionally just to harass the petitioner. According to the petitioner, the case of its is squarely covered by the decision of the Apex Court in the case of Bridge Stone India Pvt. Ltd. V/s. Inderpal Singh reported in (2016)2 SCC 75 and also as decided in the case of Brijendra Enterprise C/o. Shail Enterprise and Anr. V/s. State of Gujarat and Anr. in Cr.M.A. No.13062 of 2011. 6. Accordingly, the following prayers are sought :- "21(a). Your Lordship be pleased to quash/set aside the summoning order dated 23.07.2018 passed by Ld. ACMM, Negotiable Court no.32, Ahmedabad in criminal case no.69351/2018 (old Cri. Inquiry No.1024/2018) along with all the prior and subsequent proceedings thereto; (b) Lordships may be pleased to decide the Jurisdiction as per provisions of law; (c) Pending, hearing and final disposal of this petition Your Lordships may be pleased to stay the further proceedings thereto.” 7. Kotak Mahindra Bank Ltd. in its reply submission, has contended that application preferred by the petitioner is for the purpose of delaying the matter and for the purpose of remaining legal dues for the loan taken from complainant bank, the cheque was deposited in the bank account by complainant bank in the said account number and the said account number of bank is situated at Ahmedabad being the bank account No.08110125043001 and, therefore, the present complaint is maintainable within the jurisdiction of this Court and even as per the decision of Bridge Stone India Pvt. Ltd. V/s. Inderpal Singh reported in (2016)2 SCC 75 , there is no question of lack of territorial jurisdiction. 8. This Court has heard learned advocate Mr.Mandeep Singh Saluja for the petitioner. The Kotak Mahindra Bank Ltd. is represented by learned Senior advocate Navin Pahwa and learned advocate Mr.Ankur Oza and the respondent - State is represented by the learned A.P.P. 9. 8. This Court has heard learned advocate Mr.Mandeep Singh Saluja for the petitioner. The Kotak Mahindra Bank Ltd. is represented by learned Senior advocate Navin Pahwa and learned advocate Mr.Ankur Oza and the respondent - State is represented by the learned A.P.P. 9. On two counts, the challenge is made to the action of lodgment of an F.I.R. Firstly, because the loan account of the present petitioner is at Noida from where, the loan had been sanctioned and the main branch of Kotak Mahindra Bank Ltd. though is situated at Mumbai, cheque has been presented at Ahmedabad branch. Secondly, because in case of the petitioner, the bank accounts have been freezed by the Income Tax Department from 12.02.2018 and the petitioner had already intimated the complainant bank before presenting the cheque to its branch at Noida by way of an e-mail dated 09.03.2018. Following the ratio laid down in the decision rendered by the Delhi High Court, the request is made to this Court that the bank ought not to have presented the cheque before the Ahmedabad branch. 9.1 The petitioner has relied on the decision of the Delhi High Court in case of Standard Chartered Bank and another vs. State and another, 2008(1) RCR (Criminal) 148. It was a case where, the Standard Chartered Bank had informed the complainant that notice of demand was served that the banker's cheque was not being honoured because, the account of the customer had been attached by the Income Tax authorities and notwithstanding said attachment, by mistake, the banker's cheque in question was issued. Thus, on a mere reading of complaint, the Court found that it was evident that cognizance of complaint could not have been taken by the learned Magistrate. 9.2 Again, it is urged that was a cheque given towards a security and, therefore, also the Supreme Court's decision in Indus Airways Private Limited and others V/s. Magnum Aviation Private Limited and another reported in (2014)12 SCC 359, when is taken into consideration, the case of the petitioner deserves to be considered. Moreover, according to the petitioner, the cheque could have been presented before either the main branch at Mumbai or in Noida branch where, the petitioner had its account and not at Ahmedabad branch which is merely one of the branches of the Bank. Moreover, according to the petitioner, the cheque could have been presented before either the main branch at Mumbai or in Noida branch where, the petitioner had its account and not at Ahmedabad branch which is merely one of the branches of the Bank. 9.3 Apt would be to refer to the decision of Indus Airways Private Limited (supra), at this stage where, the Apex Court held thus : “"6. The Delhi High Court following its earlier decision in Mojj Engg. held that the issuance of a cheque at the time of signing such contract has to be considered against a liability, as the amount written in the cheque is payable by the person on the date mentioned in the cheque. 7. Section 138 of the NI Act is as follows: “138. Dishonour of cheque for insufficiency, etc., of funds in the account. 7. Section 138 of the NI Act is as follows: “138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless – (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation. For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability.” 8. The interpretation of the expression "for discharge of any debt or other liability" occurring in Section 138 of the NI Act is significant and decisive of the matter. 9. The Explanation appended to Section 138 explains the meaning of the expression "debt or other liability" for the purpose of Section 138. This expression means a legally enforceable debt or other liability. 9. The Explanation appended to Section 138 explains the meaning of the expression "debt or other liability" for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an exiting debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability. 10. In Swastik Coaters, the Single Judge of the Andhra Pradesh High Court while considering the explanation to Section 138 held: “……..Explanation to Section 138 of the Negotiable Instruments Act clearly makes it clear that the cheque shall be relateable to an enforceable liability or debt, and as on the date of the issuing of the cheque there was no existing liability in the sense that the title in the property had not passed on to the accused since the goods were not delivered. ……..” 11. The Gujarat High Court in Shanku Concretes dealing with Section 138 of the NI Act held that to attract Section 138 of the NI Act, there must be subsisting liability or debt on the date when the cheque was delivered. The very fact that the payment was agreed to some future date and there was no debt or liability on the date of delivery of the cheques would take the case out of the purview of Section 138 of the NI Act. While holding so, Gujarat High Court followed a decision of the Madras High Court in Balaji Seafoods. 12. The very fact that the payment was agreed to some future date and there was no debt or liability on the date of delivery of the cheques would take the case out of the purview of Section 138 of the NI Act. While holding so, Gujarat High Court followed a decision of the Madras High Court in Balaji Seafoods. 12. In Balaji Seafoods, the Madras High Court held: (CTC pp.89, para 7) “7. Section 138 of the Negotiable Instruments Act makes it clear that where the cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence under Section 138 of the Act. The Explanation reads that for the purposes of this section, ‘debt or other liability’ means a legally enforceable debt or liability.” 13. The Kerala High Court in Ullas had an occasion to consider Section 138 of the NI Act. In that case, the postdated cheque was issued by the accused along with the order for supply of goods. The supply of goods was not made by the complainant. The accused first instructed the bank to stop payment against the cheque and then requested the complainant not to present the cheque as he had not supplied the goods. The cheque was dishonoured. The single Judge of the Kerala High Court held, “………Ext.P1 cheque cannot be stated to be one issued in discharge of the liability to the tune of the amount covered by it, which was really issued, as is revealed by Ext. D1, as the price amount for 28 numbers of mixies, which the complainant had not supplied. …..” 14. The reasoning of the Delhi High Court in the impugned order is as follows: (DRJ p.508, para 8) “8. D1, as the price amount for 28 numbers of mixies, which the complainant had not supplied. …..” 14. The reasoning of the Delhi High Court in the impugned order is as follows: (DRJ p.508, para 8) “8. If at the time of entering into a contract it is one of the conditions of the contract that the purchaser has to pay the amount in advance then advance payment is a liability of the purchaser. The seller of the items would not have entered into contract unless the advance payment was made to him. A condition of advance payment is normally put by the seller for the reason that the purchaser may not later on retract and refuse to take the goods either manufactured for him or procured for him. Payment of cost of the goods in advance being one of the conditions of the contract becomes liability of the purchaser. The purchaser who had issued the cheque could have been asked to make payment either by draft or in cash. Since giving cheque is a mode of payment like any other mode of payment, it is normally accepted as a payment. The issuance of a cheque at the time of signing such contract has to be considered against a liability as the amount written in the cheque is payable by the person on the date mentioned in the cheque. Where the seller or manufacturer, on the basis of cheques issued, manufactures the goods or procures the goods from outside, and has acted upon the contract, the liability of the purchaser gets fastened, the moment the seller or manufacturer acts upon the contract and procures the goods. If for any reason, the seller fails to manufacture the goods or procure the goods it is only under those circumstances that no liability is created. However, where the goods or raw material have been procured for the purchaser by seller or goods have been manufactured by the seller, it cannot be said that the cheques were not issued against the liability. I consider that if the liability is not construed in this manner, the sole purpose of making dishonour of the cheque as an offence stands defeated. I consider that if the liability is not construed in this manner, the sole purpose of making dishonour of the cheque as an offence stands defeated. The purpose of making or enacting Section 138 of the NI Act was to enhance the acceptability of cheque in settlement of commercial transactions, to infuse trust into commercial transactions and to make a cheque as a reliable negotiable instrument and to see that the cheques of business transactions are not dishonoured. The purpose of Negotiable Instrument Act is to make an orderly statement of rules of law relating to negotiable instruments and to ensure that mercantile instruments should be equated with goods passing from one hand to other. The sole purpose of the Act would stand defeated if after placing orders and giving advance payments, the stop payments are issued and orders are cancelled on the ground of pricing of the goods as was done in this case.” 15. The above reasoning of the Delhi High Court is clearly flawed inasmuch as it failed to keep in mind the fine distinction between civil liability and criminal liability under Section 138 of the NI Act. If at the time of entering into a contract, it is one of the conditions of the contract that the purchaser has to pay the amount in advance and there is breach of such condition then purchaser may have to make good the loss that might have occasioned to the seller but that does not create a criminal liability under Section 138. For a criminal liability to be made out under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. We are unable to accept the view of the Delhi High Court that the issuance of cheque towards advance payment at the time of signing such contract has to be considered as subsisting liability and dishonour of such cheque amounts to an offence under Section 138 of the NI Act. The Delhi High Court has traveled beyond the scope of Section 138 of the NI Act by holding that the purpose of enacting Section 138 of the NI Act would stand defeated if after placing orders and giving advance payments, the instructions for stop payments are issued and orders are cancelled. The Delhi High Court has traveled beyond the scope of Section 138 of the NI Act by holding that the purpose of enacting Section 138 of the NI Act would stand defeated if after placing orders and giving advance payments, the instructions for stop payments are issued and orders are cancelled. In what we have discussed above, if a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, in our considered view, the cheque cannot be said to have been drawn for an existing debt or liability. 16. In our opinion, the view taken by the Andhra Pradesh High Court in Swastik Coaters, the Madras High Court in Balaji Seafoods, the Gujarat High Court in Shanku Concretes and the Kerala High Court in Ullas is the correct view and accords with the scheme of Section 138 of the NI Act. The view taken by the Delhi High Court is plainly wrong and does not deserve acceptance.” 10. However, later on, the Apex Court in the case of Sampelly Satyanarayana Rao V/s. Indian Renewable Energy Development Agency Limited reported in (2016)10 SCC 458 , has held that even if the cheque is given towards the security, if at the time when the same was given, the amount had been disbursed, by the bank or financial institute, it should be construed that the legally recoverable debt existed and, therefore, ratio of Indus Airways Private Limited (supra) would not come in the way of the drawee. “9. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways with reference to the explanation to Section 138 of the Act and the expression “for discharge of any debt or other liability” occurring in Section 138 of the Act. We are of the view that the question whether a postdated cheque is for “discharge of debt or liability” depends on the nature of the transaction. If on the date of the cheque, liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. 10. We are of the view that the question whether a postdated cheque is for “discharge of debt or liability” depends on the nature of the transaction. If on the date of the cheque, liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. 10. Reference to the facts of the present case clearly shows that though the word “security” is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is undisputed that the loan was duly disbursed on 28.02.2002 which was prior to the date of the cheques. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability. 11. The judgment in Indus Airways is clearly distinguishable. As already noted, it was held therein that liability arising out of claim for breach of contract under Section 138, which arises on account of dishonour of cheque issued was not by itself on a par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque there was a debt/liability in praesenti in terms of the loan agreement, as against Indus Airways where the purchase order had been cancelled and cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled. Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as “security” in the loan agreement. Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as “security” in the loan agreement. In applying the judgment in Indus Airways, one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque. 12. Crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of the different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. 13. In Balaji Seafoods, the High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also loan was advanced. It was noticed specifically therein, as was the admitted case of the parties, that the cheque was issued as “security” for the advance and was not intended to be in discharge of the liability, as in the present case. 14. In HMT Watches Ltd. v. M.A. Abida, relied upon on behalf of the respondent, this Court dealt with the contention that the proceedings under Section 138 were liable to be quashed as the cheques were given as “security” as per defence of the accused. Negativing the contention, this Court held: (SCC pp.77980, paras 1012) “10. Having heard the learned counsel for the parties, we are of the view that the accused (Respondent 1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. 11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd., this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: (SCC pp. 68587, paras 17 & 22) "17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter.” 11. Ordinarily, a defence of an accused although appears to be plausible, should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.” “12. In Rallis India Ltd. v. Poduru Vidya Bhushan, this Court expressed its views on this point as under: (SCC p. 93, para 12) “12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm.” 12. In the instant case also, as the bank had already disbursed the loan amount when the cheque had been given by way of security, that per se would not defeat the case of the bank. The case of Indus Airways Private Limited (supra) would have no applicability as the cheque in the instant case was for repayment of loan amount and thus, it is the ratio laid down in the case of Sampelly Satyanarayana Rao would apply. 13. The case of Indus Airways Private Limited (supra) would have no applicability as the cheque in the instant case was for repayment of loan amount and thus, it is the ratio laid down in the case of Sampelly Satyanarayana Rao would apply. 13. So far as the issue of jurisdiction is concerned, it is to be regarded that in wake of decision of Dashrath Rupsinh Rathod V/s. State of Maharashtra reported in (2014)9 SCC 129 , the parliament amended the N.I. Act and Sections 142(2) and 142A of the N.I. Act are introduced limiting jurisdiction to two places. Both the provisions and their implications are referred to in the decision of Bridge Stone India (pvt) Ltd. (supra) 13.1 Apt would be to refer to the said decision of Bridge Stone India Pvt. Ltd. which clearly provides guidelines with regard to the jurisdiction of the Court : - “9. During the course of hearing, the learned counsel for the appellant cited the decision rendered by a three-Judge Bench of this Court in Dashrath Rupsingh Rathod vs. State of Maharashtra, and pointedly invited our attention to the conclusions drawn by this Court in paragraph 58, which is extracted hereunder: "58. To sum up: 58.1 An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. 58.2 Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138. 58.2 Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138. 58.3 The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if (a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue, (b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque, and (c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice. 58.4 The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. 58.5 The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the court till such time cause of action in terms of clause (c) of proviso accrues to the complainant. 58.6 Once 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. 58.7 The general rule stipulated under Section 177 CrPC applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 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 by the provisions of Section 182(1) read with Sections 184 and 220 thereof." 10. In view of the decision rendered by this Court in Dashrath Rupsingh Rathod case, it is apparent that the impugned order dated 05.05.2011, passed by the High Court of Madhya Pradesh, Bench at Indore, was wholly justified. 11. In view of the decision rendered by this Court in Dashrath Rupsingh Rathod case, it is apparent that the impugned order dated 05.05.2011, passed by the High Court of Madhya Pradesh, Bench at Indore, was wholly justified. 11. In order to overcome the legal position declared by this Court in Dashrath Rupsingh Rathod case, the learned counsel for the appellant has drawn our attention to the Negotiable Instruments (Amendment) Second Ordinance, 2015 (hereinafter referred to as 'the Ordinance'). A 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 us that the Negotiable Instruments (Amendment) Second Ordinance, 2015 is in force. Our attention was then invited to Section 3 thereof, whereby, the original Section 142 of the Negotiable Instruments Act, 1881, came to be amended, and also, Section 4 thereof, whereby, Section 142A was inserted into the Negotiable Instruments Act. 12. Sections 3 and 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015 are being extracted hereunder: "3. Amendment of Section 142.-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: 142.( 2) The offence under section 138 shall be inquired into and tried only by a court within whose 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. Insertion of new section. – In the principal Act, after section 142, the following section shall be inserted, namely :- 142-A. Validation for transfer of pending cases. Insertion of new section. – In the principal Act, after section 142, the following section shall be inserted, namely :- 142-A. Validation for transfer of pending cases. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) 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, (6 of 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 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 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." (Emphasis supplied) 13. 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.” 14. It is quite apparent from the said provision that ordinarily, at two places, jurisdiction would lie (1) when cheque is presented for collection through an account, the branch where the payee or holder in due course, maintains the account, is situated (2) when presented otherwise through an account, the branch of bank where the drawer maintains the account. In case of the corporates, banks jurisdiction would lie with the Court having jurisdiction over the branch bank of drawer for the cheque having been presented otherwise through an account. 15. In the case on hand, drawer's bank is at Noida and the head quarter of Kotak Mahindra Bank is at Mumbai, it also has its branch in Noida and yet, it has chosen to tender the cheque at the branch bank at Ahmedabad. 16. Complainant being the Bank, it naturally would have branches almost in all parts of the country, but, what would be relevant for the purpose of deciding the aspect of jurisdiction is whether the Bank ought to have deposited the cheque at Ahmedabad and whether it had valid reason for such deposits. 17. This Court notices that the entire transaction is at Noida, New Delhi. The notice of dishonour of cheque also has been from Noida, New Delhi. The Head Office of the Bank is at Mumbai. Ahmedabad branch does not come into the picture at all so far as the customer is concerned. An attempt is made by the learned counsel on raising of query by the Court that the loan department is being handled at Ahmedabad. It is surprising as to how Ahmedabad would have a jurisdiction because each branch would have a loan department. 18. Again, here there are very peculiar facts, which cannot go unnoticed. The petitioner already faced difficulties because of raid of Income Tax Department. 18.1 It emerges from the affidavit and submissions made for and on behalf of the bank that loan account for all transactions made across India, in any of the branches of respondent bank is maintained at Ahmedabad and, therefore, according to the respondent bank, every matter of dishonour of cheque is tried at Ahmedabad. 18.1 It emerges from the affidavit and submissions made for and on behalf of the bank that loan account for all transactions made across India, in any of the branches of respondent bank is maintained at Ahmedabad and, therefore, according to the respondent bank, every matter of dishonour of cheque is tried at Ahmedabad. It has also relied on the newly added provisions of N.I.Ac to urge that since the cheque given towards security is presented for honouring the loan account maintained by the bank, the Court in Ahmedabad has jurisdiction and reliance is also placed on Bridge Stone India Pvt. Ltd (supra). 18.2 This Court fails to fathom this approach of secrecy on the part of the bank, which chose not to reveal this vital aspect to the petitioner also, although, relationship of the parties is governed by the terms of contract/loan agreement. It is admitted by the learned Senior counsel Mr. Pahwa when this Court raised a specific query as to whether anywhere, in any document, reference is made of loan account being maintained at Ahmedabad, that no such whisper is made. How in that case this internal arrangement of the bank would lend jurisdiction to the Court at Ahmedabad ! 18.3 This is anathema to the citizen centric approach, much emphasized upon in all service rendering institutes. This also brings to the fore yet another unpalatable detail that all matters of dishonoured cheques are tried at Ahmedabad, no matter where the loan transaction is made. All customers of the bank are required to defend themselves at Ahmedabad due to maintenance of loan account at Ahmedabad. There is no justifiable ground, except the administrative convenience of banking authority or an attempt to force compromise in cases of dishonoured cheques by maintaining the loan account at Ahmedabad for the purpose of deposit of cheques. It is one thing to maintain details of loan accounts centrally by the bank, but, it is quite different to insist on such administrative modality to be used for the purpose of ousting jurisdiction of the court, which otherwise would get or to confer jurisdiction upon the Court, when in fact it did not exist. Again, not to reveal this vital information to the loanee/customer, even while issuing the mandatory notice before initiating proceedings under section 138 of the N.I. Act also need not be encouraged merely because the customer is a voiceless majority largely. Again, not to reveal this vital information to the loanee/customer, even while issuing the mandatory notice before initiating proceedings under section 138 of the N.I. Act also need not be encouraged merely because the customer is a voiceless majority largely. 19. It has bank account with the Bank of Jammu & Kashmir, which has been already freezed by the Income Tax Department, which has a huge tax amount to be collected from the petitioner. The Income Tax Department also wrote to that Bank and other authorities not to allow the petitioner any transaction and specifically directed to divert the fund to the Income Tax Department. In such circumstances, the petitioner communicated to the respondent Bank herein on 09.03.2018 apprising the Bank of the difficulties the petitioner was facing and requested to bear with it for a while. 19.1 It appears that in such circumstances, the Bank still chose to deposit the cheque, which according to the petitioner, was given towards the security on 19.03.2018 and the same has returned with insufficiency of funds. Of course, the notice dated 12.02.2018 of the Income Tax Department, which is brought on record does not speak of freezing of the account from which the cheque had been issued by the petitioner, but the notice does indicate that from all other accounts, the department had made a request for fund to be remitted to the Income Tax Department. Without entering into those contentious issues, suffice would it be to note that on couple of occasions, the cheques of present applicant have been dishonoured. The account details provided to the Court indicates that 70% of the cheques have been honoured and 30% of the cheques have been dishonoured. 20. It is not revealed as to whether there has been initiation of proceedings under section 138 of the N.I.Act for some of the dishonoured cheques, other than the cheque in question.. Admittedly, it is not done at Ahmedabad. Section 142A also makes it very clear that if the prosecution is going on between the same parties, the Court proceedings shall be transferred. The remaining proceedings under section 138 of the Negotiable Instruments Act shall not cause unnecessary harassment to the parties. Admittedly, it is not done at Ahmedabad. Section 142A also makes it very clear that if the prosecution is going on between the same parties, the Court proceedings shall be transferred. The remaining proceedings under section 138 of the Negotiable Instruments Act shall not cause unnecessary harassment to the parties. This Court cannot be oblivious to the decision of Dashrath Rupsinh Rathod(supra) where the Apex Court came down heavily upon the Banks and the financial institutions, which would file proceedings for dishonour of the cheques at different places. Being conscious of the fact that in post Dashrath Rupsinh Rathod decision, the amendment in 2015 has been brought on the statute, that may not take away the requirement of all the matters to be tagged together. Assuming that there is no other matter pending against the petitioner, when the entire transaction is at Noida, New Delhi, with no cause of action having arisen at Ahmedabad, for the purpose of jurisdiction the amended provisions of section 142 and 142A if are kept in view, in the opinion of this Court, Ahmedabad will have no jurisdiction with no cause of action at all having arisen here. 21. Heavy reliance is also placed on Delhi High Court decisions where also the Income Tax Department had freezed the account and due to that the cheque had been dishonoured. The Court had quashed the proceedings of section 138 on the ground that the proceedings could be initiated under the N.I.Act, only if the ingredients of section 138 are complied with. The freezing of accounts by the statutory authority, if is the ground for return of the cheque, the Court held that the same would not fall within the criteria of section 138 of the N.I.Act. 22. Here, this Court notices that the cheque in question since has not been issued from the account, which has been explicitly freezed by the Income Tax Department and it is a matter of evidence whether the fund from this account had been already transferred at the request of Income Tax Department. At this stage, the quashing on that count is not being entertained. However, on the issue of jurisdiction, the Court is of the firm opinion that the matter shall need to be filed at Noida, New Delhi. 23. At this stage, the quashing on that count is not being entertained. However, on the issue of jurisdiction, the Court is of the firm opinion that the matter shall need to be filed at Noida, New Delhi. 23. Let the original complainant be handed over the original complaint for him to file it before the Court at Noida since the proceedings at Ahmedabad will not lie. 24. The petition stands disposed of accordingly. All other factual as well as legal issues raised shall be permitted to be agitated before the Court at Noida, New Delhi. 25. At this stage, learned advocate Mr. Oza, had made a request for stay of execution of this order on the ground that he is required to challenge it before the Apex Court. His request is acceded to. Time of six weeks is granted to the respondents. In the meantime, the trial Court also shall continue to stay the proceedings of the Criminal Case No.69351 of 2018.