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2018 (4) TMI 620

question are issued by the accused drawn on the Bank of Baroda, Basant Lok, New Delhi and thus did not fall within the jurisdiction of the South East District, Saket on the date when the complaint was returned on 14.05.2015. - In terms of the amendment to The Negotiable Instruments Act, 1881, Section 142(2) was inserted to The Negotiable Instruments Act, 1881, the jurisdiction in relation to an offence punishable under Section 138 of The Negotiable Instruments Act, 1881 lay only with the branch of the bank where the payee of the holder in due course maintained his / its account which in the instant case was the HDFC Bank Ltd., Kalkaji, New Delhi i.e. the bank of the petitioner herein i.e. the complainant of the CC no. 157/1/12 and thus the jurisdiction lay with the Court having jurisdiction over the area of Kalkaji i.e. South Eash District, New Delhi on the date when the application seeking revival / restoration of the complaint, was taken up on 08.10.2015. - It is apparent that in terms of the provisions of Section 142A(1), the amended provisions of Section 142(2) of the NI Act, 1881 thereof are deemed to have been in play and operation at all times and give retrospective .....

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not have territorial jurisdiction over the matter, the petitioner seeks restoration of the same to its original stage and that the delay, if any, for filing the application for restoration / revival before the learned MM concerned be condoned. 2. The notice was issued to the respondents with respondent no. 1 arrayed on record being the State. The proceedings against the respondent no. 5 Mr. Ram Laljharia, Director of the respondent no. 1 company i.e. M/s. Yograj Infrastructure Ltd. have already been dismissed as withdrawn on 29.11.2017 in view of the submissions made on behalf of the petitioner. 3. The written submissions on behalf of the petitioner and on behalf of the respondents no. 2 to 5 had already been submitted before withdrawal of the case against the respondent no.5 , are on record. 4. Oral arguments were addressed on behalf of either side. 5. The averments put forth through the complaint in question instituted on 29.09.2012 by the petitioner herein were to the effect that the petitioner is a limited company, which was engaged in the business of manufacturing, sale of machines pertaining to construction and earthmoving under the brand name of LiuGong and which company als .....

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dence had not commenced and it was held that due to lack of territorial jurisdiction over the matter, the complaint was thus ordered to be returned to the complainant along with the affidavit by way of evidence and other original documents and the complainant was directed to file the certified photocopies of the complaint and aforesaid documents with the Ahlmad of the Court before receiving the originals thereof. Further it was directed vide order dated 14.05.2017 that the complainant was at liberty to file the complaint afresh before the Court of competent jurisdiction as per the directions of the Hon ble Supreme Court in Dashrath Rupsingh Rathod (Supra). 8. The petitioner has submitted further that the complainant i.e. the petitioner herein was thus to file the complaint before the concerned Court within a period of 30 days after the order dated 14.05.2015 of the learned MM concerned but the District Courts were closed on 09.06.2015 for the summer vacation and in the meanwhile the Government of India through the President of India, promulgated The Negotiable Instruments (Amendment) Act, 2015 dated 15.06.2015 wherein it was specified under clause 3(2) to the effect The offence und .....

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ich 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.] 11. The Hon ble Apex Court vide its judgment in Dashrath Rupsingh Rathod (Supra) vide paragraph 56 & 57 held : - To sum up: (i) 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. (ii) 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 .....

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one as of 1st June 2008. The position is no different in other cities where large number of complaints are filed under S.138 not necessarily because the offence is committed in such cities but because multinational and other companies and commercial entities and agencies choose these places for filing the complaints for no better reason than the fact that notices demanding payment of cheque amounts were issued from such cities or the cheques were deposited for collection in their banks in those cities. Reliance is often placed on Bhaskaran s case to justify institution of such cases far away from where the transaction forming basis of the dishonoured cheque had taken place. It is not uncommon to find complaints filed in different jurisdiction for cheques dishonoured in the same transaction and at the same place. This procedure is more often than not intended to use such oppressive litigation to achieve the collateral purpose of extracting money from the accused by denying him a fair opportunity to contest the claim by dragging him to a distant place. Bhaskaran s case could never have intended to give to the complainant/payee of the cheque such an advantage. Even so, experience has .....

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le Instruments (Amendment) Ordinance, 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 .....

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till 29.09.2015 and it was further submitted on behalf of the respondents that the complaint in any event had not been re-filed within a period of 30 days and thus there was no infirmity in the impugned order. 17. It has also been submitted on behalf of the respondents that there is no explanation put forth by the petitioner for the delay in submission of the application seeking revival of the petition. 18. Through the written submissions that have been submitted on behalf of the respondents inter alia it was submitted that the ordinance dated 15.06.2015 does not have retrospective effect and does not effect the position of law as detailed vide order dated 14.05.2015. 19. At the outset, it is essential to observe that the amendments made in The Negotiable Instruments Act, 1881 vide the ordinance dated 15.06.2015 are retrospectively applicable as in terms of The Negotiable Instruments (Amendment) Act, 2015 dated 15.06.2015 which was re-promulgated on 22.09.2015 and brought into The Negotiable Instruments Act, 1881 by The Negotiable Instruments (Amendment) Act, 2015 with retrospective application and Section 142A brought into play by the said amendment dated 15.06.2015 subsequently .....

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, 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. In the principal Act, after section 142, the following section shall be inserted, namely:- A.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 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, shall be deemed to have been transferred under this Ordinance, as if that subsection 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 .....

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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's case would also not nonsuit the appellant for the relief claimed. 12. 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's case, would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises. 13. Since cheque No.1950, in .....

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spondents no. 2 to 4 qua the aspect of non-retrospective applicability of the amended provision of The Negotiable Instruments Act, 1881 cannot be accepted in view of the verdict of this Court in Pankaj Garg (Supra) and in view of the verdict of the Hon ble Apex Court in case titled as Bridgstone India Pvt. Ltd. (Supra). Thus in view of the retrospective applicability of the provisions of Section 142(2) of The Negotiable Instruments Act, 1881 in view of the The Negotiable Instruments (Amendment) Act, 2015, the delay in filing the application for restoration / revival before the MM concerned in the South East District, Delhi is condoned to avoid failure of justice. 22. As apparently the Court of MM having jurisdiction to try cases under Section 138 of The Negotiable Instruments Act, 1881 of the South East, Saket has jurisdiction to proceed with the Complaint Case no. 157/1/12, the petition is thus allowed and the CC no. 157/1/12 is restored to its original stage and number to be taken up by the learned Court of MM concerned having jurisdiction over cases to try the offences punishable under Section 138 of The Negotiable Instruments Act, 1881 over the area of the South East District, .....

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