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2017 (1) TMI 1341 - DELHI HIGH COURT

2017 (1) TMI 1341 - DELHI HIGH COURT - TMI - Complaints pending when the amendment to the Act was carried out - Complaint under Section 138 of the Negotiable Instruments Act - non-suit the appellant/ complainant from maintaining its complaint before the learned Judicial Magistrate First Class - Held that:- In the present cases, the 30 complaints had not been returned to the complainant in compliance of the order dated 30.08.2014. That order was stayed before the complaints were returned. Even if .....

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ing before the learned MM which passed the order dated 30.08.2014. - The learned Magistrate failed to appreciate that there was no question of re-filing the 30 cases with which we are concerned, since the complaints had not been returned to the petitioner and taken by the petitioner in view of the intervening stay of the order dated 30.08.2014 by this Court, which stay continued to operate thereon till the disposal of the SLPs as infructuous vide order dated 11.03.2016. - Cannot apprecia .....

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te to make any such observation, since the petitioner has diligently pursued its remedies, firstly, by approaching this Court to assail order dated 30.08.2014, and thereafter, the Supreme Court. - No merit in the submission of learned counsel for the respondents that the complaints were not “pending” on account of the passing of the order dated 30.08.2014. As noticed above, the said order had been stayed, firstly, by this Court, and thereafter, by the Supreme Court. Consequently, the complai .....

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the petitioner was obliged to “re-file” the 30 complaints. Since the said 30 complaints had not been collected or taken back by the complainant and they continued to remain pending on the file of the learned MM, Saket Courts, New Delhi, there was no question of the same being “refiled” at any stage. For the aforesaid reasons, no issue of limitation can possibly arise in these cases in relation to the so-called “re-filing” of the complaints. - For all the aforesaid reasons, the impugned commo .....

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Anurag Andley, Advocates. Respondents Through: Mr. Vikas Pahwa, Senior Advocate along with Mr. Siddharth Agarwal, Mr. S. Santanam Swaminadhan, Mr.Rahul Sharma, Ms. Nishtha Khurana, Mr. Sanjay Shukla & Ms.Kinnori Ghosh, Advocates for respondent No.1. VIPIN SANGHI, J. (OPEN COURT) 1. These 30 petitions have been preferred by the petitioner/ complainant under Section 407 Cr.P.C. read with Section 482 Cr.P.C. and Article 227 of the Constitution of India to, firstly, seek quashing of the common .....

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ame in the Court having territorial jurisdiction in pursuance of the judgment of the Supreme Court dated 01.08.2014 in Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr., (2014) 9 SCC 129, and thus, the Court of the learned Magistrate had become functus officio. The learned Magistrate held that Negotiable Instruments (Amendment) Act, 2015 is applicable only in respect of pending cases, and the said 30 complaint cases of the complainant were no longer pending after passing of the order .....

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these 30 petitions by this common judgment. The factual background in which these petitions have come to be filed may now be taken note of. 4. It is the case of the petitioner that in relation to commercial transactions between the parties, the respondents issued numerous cheques to the complainant. The complaints came to be filed since the cheques had been dishonoured upon presentation and the amounts covered by the said cheques were not paid despite issuance of the statutory notices under Sect .....

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urt which could entertain the complaints under Section 138 of the NI Act. The Supreme Court held that the offence under Section 138 of the NI Act stands committed on the dishonour of the cheque and, accordingly, the Judicial Magistrate of the place where the dishonour occurs is ordinarily the place where the complaint may be filed, entertained and tried. The Supreme Court held that the place of the issuance, or delivery of the statutory notice, or where the complainant chooses to present the che .....

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ion to the pending complaints under Section 138 of the NI Act throughout the country. The direction in this regard is contained in paragraph 22 of the said decision, which reads as follows: 22. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence i.e. applicability to complaints that may be fi .....

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ng and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. 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 co .....

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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. (emphasis supplied) 7. In view of the aforesaid decision in Dashrath Rupsingh Rathod (supra), the learned Metropolitan Magistrate vide orders dated 30.08.2014 directed return of the 37 complaints and original documents to the complainant, after placing certified copies of the same on record, since the cheques in qu .....

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30.08.2014 passed by the learned MM before this Court by filing a Criminal Miscellaneous (Main) petition. The operation of the order dated 30.08.2014 directing return of the complaint for it being filed before the competent Court having jurisdiction at Raigarh, Chhattisgarh was, however, stayed by this Court. 9. I may observe that in respect of 7 of the said 37 complaints, the petitioner had taken the complaints on 25.09.2014 and filed the same before the competent Court at Raigarh, Chhattisgarh .....

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r dated 30.08.2014. Thus, in all the 37 complaint cases - which had been directed to be returned to the complainant vide order dated 30.08.2014 (for being filed before the competent Court having jurisdiction at Raigarh, Chhattisgarh), the petitioner obtained stay of the operation of the order passed by the learned Magistrate on 30.08.2014. 11. Eventually, vide judgment dated 16.12.2014, this Court dismissed all the Criminal Miscellaneous (Main) petitions preferred by the petitioner by holding th .....

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antime, the petitioner may re-file the complaint which the Magistrate will keep it on record, though may not proceed with the matter until further orders . 13. Learned counsel for the petitioner has pointed out that the said direction pertained to the 7 complaints which had, in the meantime, been returned to the petitioner for being filed before the competent Court having jurisdiction at Raigarh, Chhattisgarh. The petitioner states that in view of the said direction, the said complaints were re- .....

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to take back the complaints from the Court of the concerned learned Metropolitan Magistrate, Saket Courts. In view of the stay of operation of the order dated 30.08.2014, the said order could not have been given effect to, and, its non-compliance could not have visited the petitioner with any adverse consequences. 15. The further case of the petitioner is that during pendency of the SLPs before the Supreme Court - while the stay was operating, the Negotiable Instruments (Amendment) Ordinance, 20 .....

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ame Court which had passed the order of transfer. 16. In the light of the aforesaid amendment - initially introduced by an Ordinance, and thereafter by an Amendment Act, the petitioner states that the petitioner moved applications for revival of the complaints. The same, however, remained pending since the interim order passed by the Supreme Court was in vogue. Once the Amendment Act had been passed in pursuance of the Ordinance, the SLPs preferred by the petitioner were disposed of as infructuo .....

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se that under Section 142(2)(a) of the Negotiable Instruments Act, 1881, as amended by Negotiable Instruments (Amendment) Act, 2015, the complaint could be preferred within the jurisdiction of the Court where the branch of the bank - where the payee or holder in due course, as the case may be, maintains the accounts, is situated. Since the petitioners/ complainant s bank account - in respect of the cheques involved in the complaints in question were maintained with the State Bank of India having .....

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politan Magistrate has failed to appreciate that its common order dated 30.08.2014 directing return of the complaints for them being filed before the Court having territorial jurisdiction (as understood in the light of the judgment in Dashrath Rupsingh Rathod (supra)), was stayed, firstly, by the High Court, and thereafter, by the Supreme Court. Since the stay was operating, the petitioner could not have, and was not obliged to collect the complaints and to re-file the same before the learned Ma .....

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gotiable Instruments (Amendment) Act, 2015. The purport of the said amendment was to neutralize the effect of the judgment rendered by the Supreme Court in Dashrath Rupsingh Rathod (supra), and that too, retrospectively. 20. Learned counsel for the petitioner further submits that the learned Magistrate while passing the impugned common order dated 02.06.2016 has taken a very narrow and hyper technical view, and thereby defeated the cause of substantial justice. The submission of learned counsel .....

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s reliance on the decision of this Court in Pankaj Garg Vs. State (Govt. of NCT of Delhi) & Another, Crl.M.C. No.4239/2015 decided on 13.10.2015, wherein this Court has considered the impact of the amendment carried out to the Negotiable Instruments Act post the decision of the Supreme Court in Dashrath Rupsingh Rathod (supra), as also the decision of the Supreme Court in Bridgestone India Private Limited Vs. Inderpal Singh, (2016) 2 SCC 75, wherein the Supreme Court has clearly held that th .....

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turned to the complainant vide orders dated 30.08.2014 for being re-filed within thirty days before the concerned Magistrate at Raigarh, Chhattisgarh. Thus, the learned Magistrate was correct in observing that he had become functus officio after having passed orders for return of the complaints as nothing was pending before him when the petitioner s applications for transfer and revival of the complaints in question were moved. Mr. Pahwa has sought to place reliance on the decision in Dashrath R .....

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struments (Amendment) Act, 2015. However, the applications for transfer were filed only on or about 03.05.2016, i.e. well beyond the period of thirty days. 24. Mr. Agarwal has submitted that even if this Court were to allow the transfer applications moved by the petitioner, the issue of limitation should be left open to be decided by the concerned Magistrate to whom the complaints are transferred. 25. Having heard learned counsel for the parties, perused the impugned common order dated 02.06.201 .....

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y the petitioner. The petitioner approached this Court to assail the said orders, and the said orders were stayed by this Court. With a view to save its complaints from being labeled as being barred by limitation - on account of their not being filed within thirty days after replacing them with certified copies, the petitioner apparently filed 7 of the returned complaints before the competent Court at Raigarh, Chhattisgarh. However, the said filing, in any event, would have to be treated as with .....

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30.08.2014 by this Court at the instance of the petitioner, obviously, was that the petitioner was not obliged to collect the complaints after replacing the same with certified copies and to file the same before the competent Court at Raigarh, Chhattisgarh. In fact, the learned Magistrate was also bound by the said stay order and could not have directed return of the complaints for being filed before the competent Court at Raigarh, Chhattisgarh. Once stayed, the said order could not have been g .....

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continuously till all the Criminal Miscellaneous (Main) petitions were disposed of by this Court vide judgment dated 16.12.2014. Soon thereafter, the petitioner preferred SLPs before the Supreme Court to assail the common judgment dated 16.12.2014, and on 13.01.2015, the Supreme Court stayed the operation of the common judgment in the Criminal Miscellaneous (Main) petitions dated 16.12.2014. Thus, the stay order in respect of the common order dated 30.08.2014 passed by the learned MM (directing .....

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e still pending and the stay granted by the Supreme Court was still operating, the Negotiable Instruments Act was amended, firstly, by Ordinance, and thereafter, by an Amendment Act with the introduction of Section 142(2) and Section 142A. 29. In Pankaj Garg (supra), this Court considered the same arguments as adopted by the learned Magistrate in the impugned common order and advanced on behalf of the respondents by Mr.Pahwa and Mr.Agarwal. In Pankaj Garg (supra), the learned Magistrate had pass .....

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his Court in a petition under Section 482 Cr.P.C. Before this Court, the submission advanced by the accused was, firstly, that the amendment to the Negotiable Instruments Act by the Ordinance dated 15.06.2015 was not retrospective, and secondly, that the complaint was no longer pending before the Trial Court since the Trial Court had directed return of the complaint vide order dated 16.01.2015 and consigned the file to the Record Room. This Court rejected the submissions of the petitioner/ accus .....

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which were transferred for lack of territorial jurisdiction as the bank of the drawer was not situated within the territorial jurisdiction of the Court concerned have been directed to be returned and tried by the same Court. It is clear from the order of learned MM dated 16.01.2015 that complaint case of respondent No.2 was directed to be returned as the bank of the drawer/ petitioner does not situate within the territorial jurisdiction of the court of learned MM. 10. The amendment in question .....

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on particularly by the Ordinance promulgated, namely the Negotiable Instruments (Amendment) Ordinance, 2015 dated 15.06.2015 was considered by the Supreme Court in Bridgestone India Private Limited (supra). In this case, the bank of the drawer was situated at Chandigarh, and the payee deposited the cheque with its bank at Indore. After issuance of the statutory notice, the payee/ complainant filed a complaint under Section 138 of the NI Act at Indore. The accused/ drawer challenged the territori .....

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n to entertain the complaint. This decision was again assailed before the High Court of Madhya Pradesh. This time, the High Court vide judgment dated 05.05.2011 agreed with the accused/ drawer and held that the jurisdiction lay only before the Court within whose jurisdiction the original drawee bank was located, namely at Chandigarh, wherefrom the drawer/ accused had issued the cheque. 33. The complainant/ payee then approached the Supreme Court. The appellant/ payee was confronted with the deci .....

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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, however, imperative for the present controversy, that the appellant overcomes .....

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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 .....

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urisdiction 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 case [Dashrath Rupsingh Rathod v. State of Maha .....

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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. 17 .....

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dicial Magistrate, First Class, Indore, Madhya Pradesh, on the date of appearance indicated hereinabove. (emphasis supplied) 34. Thus, the Supreme Court very clearly held that Dashrath Rupsingh Rathod (supra) would not non-suit the appellant/ complainant from maintaining its complaint before the learned Judicial Magistrate First Class, Indore in view of the amendment carried out by the Ordinance, which matured into an Amendment Act. The Supreme Court also held the amendment to be retrospective s .....

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returned. Even if they had been returned, the same would have made no difference, since the operation of the initial order dated 30.08.2014 directing return of the complaints for their being filed before the competent Court at Raigarh, Chhattisgarh had been stayed, firstly, by the High Court and thereafter, that stay was continued by the Supreme Court till the promulgation of the Ordinance on 15.06.2015, and thereafter the amendment to the Act was made. Thus, the complaints continued to lie bef .....

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ed on 16.12.2014. 37. Similarly, the learned Magistrate has also ignored the fact that the common judgment of this Court dated 16.12.2014 had been stayed by the Supreme Court on 13.01.2015 - thereby reviving the stay of the order dated 30.08.2014, and that stay continued till the promulgation of the Ordinance, followed by Amendment of the Act. 38. The learned Magistrate also failed to appreciate that there was no question of re-filing the 30 cases with which I am concerned, since the complaints .....

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hile passing the interim order dated 13.01.2015, permitted the petitioner to re-file the said complaints with the Magistrate, and in consequence thereof, the said 7 complaints apparently were re-filed by the petitioner before the Court of the learned MM, Patiala House Courts. 40. I cannot appreciate the observation made by the learned Magistrate in the impugned order accusing the petitioner of resorting to forum shopping . In the face of the retrospective amendment carried out to the Negotiable .....

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not find any merit in the submission of learned counsel for the respondents that the complaints were not pending on account of the passing of the order dated 30.08.2014. As noticed above, the said order had been stayed, firstly, by this Court, and thereafter, by the Supreme Court. Consequently, the complaints remained in the same position in which they were, prior to the passing of the order dated 30.08.2014 at the time when the Negotiable Instruments Ordinance was issued, which was then replac .....

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