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2020 DIGILAW 557 (JK)

Nayeem Ahmad Khuroo v. Noor Mohammad Gujri

2020-10-27

RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal, J.—The petitioner has filed the instant petition for quashing of complaint titled, “Noor Mohammad Gujree versus Nayeem Ahmad Khuroo” pending before learned Judicial Magistrate 1st Class (JMIC), Baramulla and also for quashing of order dated 11.06.2013 by virtue of which the process was issued against the petitioner for commission of offence under Section 138 of the Negotiable Instruments Act, 1881. In the alternative, prayer has also been made for transferring the case to any other court of competent jurisdiction at Srinagar. 2. It is averred in the petition that in the complaint filed by the respondent, it has been alleged that the petitioner has borrowed a sum of Rs. 10,50,000/- as loan from the respondent and in order to liquidate the said loan, a cheque bearing No. 486084 dated 25.04.2013 for an amount of Rs. 5,00,000/- has been issued in favour of the respondent by the petitioner and the said cheque on presentation to the bank has been dis-honoured with memo having remarks ‘exceeds arrangements’. The petitioner has further stated that the learned JMIC Baramulla has no jurisdiction to try the complaint as admittedly the cheque had drawn at J&K Bank Branch, Nowgam Srinagar which is not situated within the jurisdiction of JMIC Baramulla. It is further stated that the complaint has been filed by the respondent by concealing the compromise agreement executed between the parties and it was agreed that the cheque bearing No. 486084 shall be returned to the petitioner but instead of returning the same, the same was presented and was later on dishonored. The petitioner also claims to be seriously ill and has expressed inability to attend the court at Baramulla to contest the case. 3. Mr. M. Ayoub Bhat, learned counsel for the petitioner has reiterated the grounds raised in the petition. On the contrary, Mr. Bhat Fayaz, learned counsel for the respondent submitted that as per the amended provisions of Negotiable Instruments Act, 1881 the complaint under section 138 of the Instruments Act, 1881 for dishonor of cheque can be filed only at a place where the payee or the holder in due course maintains the account in the event the cheque is delivered for collection through that account. He further submits that the complaint can be sent to Chief Judicial Magistrate, Sopore. He further submits that the complaint can be sent to Chief Judicial Magistrate, Sopore. He has further argued that there is nothing on record to demonstrate that the petitioner is ill and is unable to appear before the court. 4. Heard and considered. 5. It is stated that in paragraph No. 3 of the complaint that the respondent submitted the cheque with his banker J&K Bank Agro High-tech, Sopore for getting the same en-cashed from the concerned bank but the same was dishonored. So it is evident that the respondent was maintaining his account with J&K Bank Agro High-tech, Sopore. The complaint was filed on 11.06.2013 before JMIC Baramulla. The present petition was filed on 11.11.2014 and the proceedings were stayed by this Court on 18.11.2014. 6. During the pendency of the instant petition, the Negotiable Instruments (Amendment) Ordinance, 2015 was promulgated on 15.06.2015 by virtue of which section 142 of the Negotiable Instruments Act was amended and sub-section 2 was inserted after sub-section 1 of section 142 of the Act and also section 142-A was inserted after the section 142 of the Negotiable Instruments Act, 1881. It is relevant to reproduce sub-section 2 of section 142 of the Act as amended by Negotiable Instruments (Amendment) Ordinance, 2015: “(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.” 7. Sub-section 1 of Section 142-A of the Act as amended by Negotiable Instruments (Amendment) Ordinance, 2015 is also reproduced as under: “142A. Sub-section 1 of Section 142-A of the Act as amended by Negotiable Instruments (Amendment) Ordinance, 2015 is also reproduced as under: “142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 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 as if that sub-section had been in force at all material times.” 8. So by virtue of this Ordinance, all the complaints those were pending in courts other than the courts having territorial jurisdiction as per the amended section 142 of Negotiable Instruments Act, stood automatically transferred to the court having territorial jurisdiction as provided under amended section 142 of Negotiable Instruments Act. 9. Thereafter, the Parliament amended the Negotiable Instruments Act, 1881 and section 142-A was incorporated and it validated the transfer of the cases, transferred pursuant to the Negotiable Instruments (Amendment) Ordinance, 2015. The challenge thrown to the issue of process by JMIC Baramulla on the ground of territorial jurisdiction has lost its relevance, as by operation of law, the complaint that is the subject matter of the present controversy stood automatically transferred to the court of Chief Judicial Magistrate, Sopore w.e.f. 15.06.2015, as the J&K Bank Agro High-tech, Sopore, where the respondent has maintained his account is situated within the territorial limits of Chief Judicial Magistrate, Sopore. 10. The other contention raised by the petitioner that the complaint has been filed by the respondent by concealing the compromise agreement, is the disputed question of fact that cannot be adjudicated under section 561-A Cr.P.C. (now 482 Cr.P.C.). 11. The contention of the petitioner for transferring the case to the court at Srinagar also deserves to be rejected as there is nothing on record to demonstrate that the petitioner is unable to appear in any court other than the Srinagar. 12. In view of all what has been discussed above, this petition is disposed of with the direction to JMIC Baramulla to transmit the record of the complaint, titled, “Noor Mohammad Gujree vs. Nayeem Ahmad Khuroo” to the court of Chief Judicial Magistrate, Sopore. The parties shall cause their appearance before the Chief Judicial Magistrate, Sopore on 02.12.2020. 12. In view of all what has been discussed above, this petition is disposed of with the direction to JMIC Baramulla to transmit the record of the complaint, titled, “Noor Mohammad Gujree vs. Nayeem Ahmad Khuroo” to the court of Chief Judicial Magistrate, Sopore. The parties shall cause their appearance before the Chief Judicial Magistrate, Sopore on 02.12.2020. Registry is directed to send copy of the order to both JMIC Baramulla and Chief Judicial Magistrate, Sopore for information and compliance. 13. Disposed of.