TMI Blog2020 (1) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... e) where the cheques in question were deposited is located. It was not open for the appellant to file its complaint before the learned M.M., Patiala House Courts, who did not have territorial jurisdiction over the place where the respondent s bank was located (that is, Defence Colony, New Delhi) - Admittedly, in this case, the complaint had not reached the stage of Section 145(2) of the NI Act and thus, at the material time, the learned M.M., Patiala House Courts did not have the jurisdiction to try the said complaint. In terms of Section 142 (A) of the NI Act, as amended by the Negotiable Instrument (Amendment) Act, 2015 which was enacted with retrospective effect from 15.06.2015 all cases transferred under the Negotiable Instruments (Amendment) Ordinance, 2015 were deemed to have been transferred under the NI Act. There is no dispute that if the appellant s complaint was pending before the learned M.M. (Patiala House Courts) or had been re-filed before the Learned MM, South East, Saket Courts the appellant could have the benefit of Section 142(A) (1) of the NI Act as inserted by the Negotiable Instruments (Amendment) Ordinance 2015. However, the said ordinance is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be registered with the appellant. 3. The respondent is a partnership firm registered with the appellant under Registration Certificate No.37114. The respondent issued seven cheques: cheque bearing number 566352 for a sum of ₹29,200/-; cheque bearing no. 566353 for ₹2,77,980/-; cheque bearing no. 566354 for ₹5,40,000/-; cheque bearing no. 566355 for ₹4,17,980/-; cheque bearing no. 566356 for ₹4,00,000/-; cheque bearing no. 566357 for ₹5,17,980/-; and cheque bearing no. 566358 for ₹1,86,060/- (all dated 1st June, 2003), for a total sum of ₹23,69,200/- for revalidation of its Past Performance Entitlement (PPE), which is permissible under the Garment Export Entitlement Policy. When the said cheques were presented for encashment, they were dishonoured. The return memo dated 27/28th November, 2003 indicated the reason for dishonour of the cheques as funds insufficient . 4. The appellant caused a legal notice dated 4th December, 2003 to be sent to the respondents by speed post on 5th December, 2003 (Ex. C22). Since the respondents failed to make the payment within the stipulated time, the appellant preferred a complaint d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummoning stage, whether by affidavit or oral statement, the Complaint will be maintainable only at the place the cheque stands dishonoured . 9. Accordingly, the Ld. MM, Patiala House Courts, New Delhi vide order dated 25th August, 2014 directed return of complaint in original along with all documents in original after taking their certified copies. The appellant physically collected the complaint on 13th October, 2015. Thereafter, the appellant re-filed the complaint before the court having jurisdiction, Ld.MM (NI Act)-01, South East, Saket, on 4th November, 2015. On 9th November, 2015, the appellant/complainant was granted an opportunity to file an appropriate application to explain the delay however, the Ld. Counsel for the complainant contended that there was no delay in filing the case. 10. The Ld. MM, by the impugned order dated 8th January, 2016, dismissed the complaint on the ground that it was barred by limitation. A reading of the impugned order indicates that the reasons for dismissal of the complaint are, essentially, threefold. First, Ld. MM held that in terms of the directions issued in Dashrath Rupsingh Rathod (supra), the complaint was to be ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that there was no enforceable liability when the cheques were presented and therefore, the respondent had not committed any offence under Section 138 of the NI Act. The learned counsel also countered the contentions advanced on behalf of the appellant. He submitted that by an order dated 25th August, 2014, the Court directed that the complaint be returned and it gave an opportunity to the appellant to re-file the same within a period of thirty days. Therefore, the appellant had no discretion when to seek physical return of the complaint and re-file the same. The appellant could not defer re-filing of the complaint awaiting the disposal of its SLP by the Supreme Court, as the court had expressly indicated that the trial was not stayed. Reasons and Conclusion 15. At the outset, it is relevant to observe that there is no dispute that the complaint filed by the appellant before the learned Metropolitan Magistrate, Patiala House Courts was not maintainable at the material time, as the said Court did not have the jurisdiction to entertain the said complaint when it was instituted. The cheques in question were drawn on Vijaya Bank, Defence Colony Branch, New Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Colony, New Delhi). 18. However, the Supreme Court, in order to obviate and avoid any legal complications, directed that all complaint cases where proceedings had reached the stage of Section 145 (2) of the NI Act or beyond that is, cases where persons giving evidence had been summoned and examined would be deemed to be transferred from the court ordinarily possessing territorial jurisdiction to the court where the complaint had been filed. Thus, in such cases, notwithstanding that the complaint had been filed before a Court which did not have the territorial jurisdiction, the proceedings would not be impeded. This is so, because the said Court would now possess the jurisdiction to adjudicate the complaint by virtue of the same being transferred to it in terms of the decision of the Supreme Court. 19. Admittedly, in this case, the complaint had not reached the stage of Section 145(2) of the NI Act and thus, at the material time, the learned M.M., Patiala House Courts did not have the jurisdiction to try the said complaint. The Supreme Court further directed that all other cases (cases other than those that had reached the stage of Section 145(2) of the NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so relevant to note that the appellant did not refile the complaint within the period of thirty days of the final decision of the Supreme Court in its appeal (Crl. Appeal No. 1678/2012). The said appeal was allowed by an order dated 29th July, 2015; however, the appellant had re-filed the complaint on 04th November, 2015, that is, about a hundred days after the decision of the Supreme Court. Although, the appellant states that it had taken steps for collecting the original file immediately after the Supreme Court had delivered its decision on 29th July, 2015, there is no material on record to indicate the date on which the application for receiving the original complaint was made. 24. The contention that since the original complaint was received on 13th October, 2015, the same was within the period of thirty days as stipulated by the Supreme Court in Dashrath Rupsingh Rathore (supra), is bereft of any merit. The complaint was returned by the order dated 25th August, 2015 passed by the learned M.M. The fact that the appellant had not physically collected the said complaint would not extend the period, during which it was required to re-file the same. 25. Mr Raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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) Ordinance, 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 course, 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 before which the first case was filed and is pending, as if that sub-section had been in force at all material times. 27. In terms of Section 142 (A) (1) of the NI ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
