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2024 DIGILAW 130 (UTT)

Prem Sagar Dhingra v. State of Uttarakhand

2024-02-27

RAVINDRA MAITHANI

body2024
JUDGMENT : (Ravindra Maithani, J.) : The instant revision has been preferred against the following:- (i) The judgment and order dated 28.01.2010, passed in Criminal Complaint Case No.1 of 2009, Darshan Singh Vs. Prem Sagar Dhingra, by the court of IV Additional Civil Judge Junior Division/Judicial Magistrate, Haridwar (“the case”). By it, the revisionist has been convicted under Section 138 of the Negotiable Instruments Act, 1881 (“the NI Act”) and sentenced to imprisonment till the rising of the court, along with a fine of Rs. 5,000/-. And; (ii) Judgment and order dated 17.01.2018, passed in Criminal Appeal No.09 of o2010, Prem Sagar Dhingra Vs. State and Another, by the Court of IV Additional Sessions Judge, Haridwar. By it, the appeal preferred against the judgment and order dated 28.01.2010, passed in the case, has been rejected. 2. Heard learned counsel for the revisionist and perused the record. 3. The case is based on a complaint under Section 138 of the NI Act filed by the private respondent (“the complainant”). According to it, the revisionist had taken Rs. 60,000/- as loan from the complainant. After sometime, the revisionist gave three cheques of Rs. 10,000/-, Rs. 10,000/- and Rs. 40,000/- to the complainant. But, when the complainant presented the cheques in the Bank, they were returned with the endorsement “Account In-operative”. After dishonour of the cheques, the complainant issued a notice dated 07.09.2005 to the revisionist, but it was returned by the revisionist. Based on the complaint, the case was lodged. After preliminary enquiry, by an order dated 20.10.2005, the revisionist was summoned to answer accusation under Section 138 of the Act. The revisionist was examined under Section 251 of the Code of Criminal Procedure, 1973 (“the Code”). The revisionist denied of having given any cheque. He also denied of having received any notice. At that stage, the revisionist told that the case has falsely been proceeded against him. The complainant examined himself as PW1 and produced certain documents, proved them. The revisionist was examined under Section 313 of the Code. At that stage also, the revisionist replied that he did not give any cheque to the complainant; he does not know that the cheques were ever dishonoured; he did not receive any notice; the witness has given false evidence against him and he has been falsely implicated. 4. The revisionist was examined under Section 313 of the Code. At that stage also, the revisionist replied that he did not give any cheque to the complainant; he does not know that the cheques were ever dishonoured; he did not receive any notice; the witness has given false evidence against him and he has been falsely implicated. 4. After hearing the parties, by the impugned judgment and order dated 28.01.2010, passed in the case, the revisionist has been convicted and sentenced, as stated hereinbefore, which was confirmed in the appeal. 5. Learned counsel for the revisionist has raised only one point. It is argued that the revisionist and the complainant had, in fact, transactions in Delhi. The cheques were given in Delhi. Therefore, the court at Haridwar has no jurisdiction in the matter. 6. The Court invited the attention of learned counsel for the revisionist to Section 142 (2) of the NI Act. On it, learned counsel for the revisionist would submit that since it is a provision, there is less to say about it. Learned counsel for the revisionist would also submit that the notices were never served on the revisionist. 7. It is a revision. The scope is quite restricted to the extent of examining the legality, propriety and correctness of the impugned order. In revision, general appreciation of evidence may not be done unlike appeal. Evidence may only be looked into if the irrelevant material is considered or relevant material is not considered or the finding is perverse, i.e. against the weight of an evidence. 8. It is admitted case that the cheques were presented by the complainant in Punjab and Sindh Bank, Haridwar, the Branch where he was maintaining his account. In Para 5 of his examination-in-chief, the complainant has stated that he had presented all the three cheques in the Punjab and Sindh Bank, Haridwar, which were dishonoured by the same bank on 11.08.2005. He was cross-examined on that aspect. At Page 2 of his cross-examination, he has stated he had opened the account much before he had given loan to the revisionist. 9. The question of jurisdiction, for trying the cases under Section 138 of the NI Act is now resolved. Section 142 (2) of the NI Act makes provisions in this regard. This Section was brought by way of amendment with effect from 15.06.2015. It reads as follows:- “142. 9. The question of jurisdiction, for trying the cases under Section 138 of the NI Act is now resolved. Section 142 (2) of the NI Act makes provisions in this regard. This Section was brought by way of amendment with effect from 15.06.2015. It reads as follows:- “142. Cognizance of offences.— (1) …………......................................................... (a) ......................................................................... (b) ......................................................................... (c) ......................................................................... (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.” 10. In the case of Bridgestone India Private Limited Vs. Inderpal Singh, (2016) 2 SCC 75 , similar issue came up before the Hon’ble Supreme Court. The Hon’ble Supreme Court discussed the law, as laid down in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 , and the law that was laid down by the Hon’ble Supreme Court on this aspect in the case of Dashrath Rupsingh Rathod, (2014) 9 SCC 129 and observed in Para 13 as follows:- “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.” 11. In the case of Bridgestone India Private Limited (supra) also, the cheques were issued by a Branch of Bank at Chandigarh, which was presented at a Bank in Indore, Madhya Pradesh, where it was dishonoured. In Para 15 and 16, the Hon’ble Supreme Court observed as follows:- “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 142-A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 , 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 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 142-A(1) gives retrospectivity to the provision.” 12. In the instant case also, the complainant had an account in Punjab and Sindh Bank, Haridwar, where he presented the cheques given by the revisionist, but they were dishonoured. In view of the provisions of Section 142(2) of the NI Act, as interpreted further by the Hon’ble Supreme Court in the case of Bridgestone India Private Limited (supra), this Court is of the view that the court of Haridwar has jurisdiction to decide the case. . 13. In view of the provisions of Section 142(2) of the NI Act, as interpreted further by the Hon’ble Supreme Court in the case of Bridgestone India Private Limited (supra), this Court is of the view that the court of Haridwar has jurisdiction to decide the case. . 13. Another issue with regard to service of notice has also been raised lightly by the learned counsel for the revisionist. In fact, on this aspect, a categorical finding has been given by the trial court while referring the law on the subject that the service upon the revisionist is sufficient. This Court does not find any error so as to interfere on that aspect. 14. Having considered, this Court is of the view that there is no reason to make any interference. Accordingly, the revision deserves to be dismissed, at the stage of admission itself. 15. The revision is dismissed.