Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 247 (MP)

Arvind Gupta v. Komal Pandey

2020-02-14

G.S.AHLUWALIA

body2020
ORDER 1. This application under section 482 of Cr.P.C. has been filed against the order dated 10.11.2014 passed by Judicial Magistrate First Class, Lahar, District Bhind in Criminal Case No. 397/2009 by which the complaint filed by the applicant before the Court of Judicial Magistrate First Class, Lahar, District Bhind was held to be without territorial jurisdiction in the light of the judgment passed by the Supreme Court in the case of Dashrath Rupsingh Rathod v. State of Maharashtra and ors. reported in (2014) 9 SCC 129 . 2. It is submitted by the counsel for the applicant that subsequently the legislature has amended section 142 of Negotiable Instruments Act and has inserted section 142A of Negotiable Instruments Act and, therefore, in the light of the amended provisions of law, complaint lodged by the applicant before the Court of Judicial Magistrate First Class, Lahar, District Bhind is maintainable. 3. Heard the learned counsel for the applicant. 4. The Supreme Court in the case of Dashrath Rupsing Rathod (supra) had held that the Court where the cheque was presented has no territorial jurisdiction to entertain the complaint under section 138 of the Negotiable Instruments Act. Thereafter, an amendment in section 142 of Negotiable Instruments Act was incorporated and section 142-A of Negotiable Instruments Act was inserted which reads as under: 142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.] 142A. 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 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 (Ord. 6 of 2015), shall be deemed to have been transferred under this Act, 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 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 (Ord. 6 of 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. From the perusal of amended section 142(2) of Negotiable Instruments Act, it is clear that the place where a cheque was delivered through an account, the Court having local jurisdiction over such area shall also have the territorial jurisdiction to entertain the complaint. 6. The Supreme Court in the case of Bridgestone Private Limited vs. Inderpal Singh, reported in 2016 (3) JLJ 277 = (2016) 2 SCC 75 has held as under: 14. 6. The Supreme Court in the case of Bridgestone Private Limited vs. Inderpal Singh, reported in 2016 (3) JLJ 277 = (2016) 2 SCC 75 has held as under: 14. 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 142A 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 142A. 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 case would also not non-suit the appellant for the relief claimed. 15. 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, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in the present case arises. 16. Since Cheque No. 1950, in the sum of Rs. 16. Since Cheque No. 1950, in the sum of Rs. 26,958, drawn on Union Bank of India, Chandigarh, dated 2.5.2006, was presented for encashment at IDBI Bank, Indore, which intimated its dishonour to the appellant on 4.8.2006, 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. 17. In the above view of the matter, the instant appeal is allowed, and the impugned order passed by the High Court of Madhya Pradesh, by its Indore Bench, dated 5.5.2011, is set aside. The parties are directed to appear before the Judicial Magistrate, First Class, Indore, on 15.1.2016. In case the complaint filed by the appellant has been returned, it shall be represented before the Judicial Magistrate, First Class, Indore, Madhya Pradesh, on the date of appearance indicated hereinabove. Criminal Appeal No. 1562 of 2015 [arising out of SLP (Crl.) No. 9758 of 2011], Criminal Appeal No. 1563 of 2015 [arising out of SLP (Crl.) No. 10019 of 2011] and Criminal Appeal No. 1564 of 2015 [arising out of SLP (Crl.) No. 10020 of 2011] 7. Accordingly, it is held that in view of the amended provisions of section 142 of Negotiable Instruments Act, the complaint filed by the applicant before the Court of Judicial Magistrate First Class, Lahar, District Bhind is within the territorial jurisdiction of the said Court. 8. Accordingly, the order dated 10.11.2014 passed by Judicial Magistrate First Class, Lahar, District Bhind in Criminal Case No. 397/2009 is hereby set aside. The trial Court is directed to restart the proceedings after giving fresh notices to the respondent because it appears that the respondent remained unserved in the present proceeding. 9. It is further made clear that if the respondent feels aggrieved by this order, then she will have a liberty to file an application for recall of this order. 10. With aforesaid observations, the application is finally disposed of.