TMI Blog2019 (3) TMI 1943X X X X Extracts X X X X X X X X Extracts X X X X ..... h, [2015 (12) TMI 777 - SUPREME COURT] wherein the Apex Court has categorically held that the jurisdiction for initiating the proceedings for the offence under Section 138 of the N.I. Act, inter-alia, in the territorial jurisdiction of the Court, where the cheque is delivered for collection that too through an account of the branch of the bank where the payee or holder in due course maintains an account - Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted into the Negotiable Instruments Act. A perusal of Sub-Section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of Negotiable Instruments Act is concerned, 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 142A. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant who filed the complaint before the Civil Judge (Jr. Dn) JMFC, Sandur under Section 200 of Cr.P.C., against the accused for the offence punishable under Section 138 of N.I. Act. It is contended by the complainant that the accused has borrowed the hand loan of ₹ 2,00,000/- from the complainant for the purpose of doing lorry transport business and issued cheque in favour of the complainant. The said cheque was presented through Vysya Bank, Hospet for collection on 14.06.2007 and the same was dishonored for want of sufficient funds. Thereafter, the complainant has issued the legal notice and the same was served on him and he has not given any reply to the notice and also not paid the amount. Hence, the complainant filed the complaint before the lower Court and lower Court has taken cognizance and recorded the evidence. The complainant relied upon the documents of Exs. P1 to P6 and also examined himself as PW. 1 and also witness as PW. 2. The accused did not choose to lead any rebuttal evidence. The Court below having considered the evidence of PWs. 1 and 2 and the documentary evidence of Exs. P1 to P6, convicted the accused for the offence punishable under Section 138 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered by Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra and another, (2014) 9 SCC 129, would not stand in the way of such complainant insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in question. 4. The counsel also relied upon the amended act of N.I. Act, insofar to Section 142 and also Section 142A and contends that in terms of Section 142A, which is location where the cheque is dishonored or returned unpaid by the bank on which it is drawn. Place of issuance of delivery of the statutory notice or where the complainant chose to present the cheque for encashment by his bank as per Dashrath Rupsingh Rathod's case, were not relevant for purpose of determining territorial jurisdiction of filing of cheque dishonored. 5. For having invoking Section 142A of the N.I. Act, he contends that the complaint filed at Sandur is not in accordance with law and ought to have been filed the complaint before the Hospet, where the cheque was dishonored. Hence, he prayed this Court to set aside the judgment of conviction and also the confirmation. 6. Per contra, learned counsel for the respondent in his argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case was pronounced), such proceedings would not be dislodged, the declaration of law, on the subject of jurisdiction, in Dashrath Rupsingh Rathod's case. Further, held that the accused was examined under Section 251 of the Code of Criminal Procedure, and the substance of the allegations were read over to him, whereupon, the accused having pleaded not guilty, the matter was adjourned for recording evidence on 31.12.2008. On 22.04.2009, the appellant filed an affidavit to be treated as the statement-in-chief of PW. 1, whereupon, PW-1 was to be cross-examined. The Metropolitan Magistrate, 11th Court, Calcutta, then posted the matter for 22.07.2009 for the cross-examination of PW. 1. The date for the cross-examination of PW. 1 was first adjourned to 15.12.2009 and thereafter successively to 25.05.2010, 21.09.2010, 25.07.2011 and finally to 09.12.2011. Further observed that, satisfied that evidence had commenced in the present matter, as envisaged by Section 145(2) of the Negotiable Instruments Act, 1881, in terms of the clarification recorded in paragraph No. 22, in Dashrath Rupsingh Rathod's case. That being the factual position, we are of the view, that the instant appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l appearing for the revision petitioner i.e. accused in his arguments, he contends that PW. 1 has admitted that the cheque is presented at Hospet and in spite of the same, both the Courts have not considered his defence. Hence, it requires the interference of this Court. In support of his contention, he relied upon the judgment of the Apex Court reported in 2016 AIAR (Criminal) 188 in the case of M/s. Bridgestone India Pvt. Ltd., vs. Inderpal Singh. The Apex Court in this judgment having considered Section 138, 142(1), (2) Explanation and Negotiable Instruments (Amendment) Second Ordinance 2015, Sections 3, 4 and Section 142A of N.I. Act as inserted by N.I. (Amendment) Second Ordinance, 2015, held with regard to the place of territorial jurisdiction of Court to entertain/try said offence - 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 N.I. 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating that fund is insufficient in the accused account. Thereafter, the complaint was filed in 2007 itself. The complainant also examined himself as PW. 1 and also examined witness PW. 2 and relied upon Exs. P1 to P6. The accused also led his evidence before the lower Court and he did not rely any documentary evidence. The matter is disposed of on 19.08.2009. Being aggrieved by the judgment of conviction, the accused has preferred the criminal appeal No. 126/2009 and the same is also disposed of by confirming the judgment of the lower Court on 15.03.2011. No doubt, the lower Court proceedings and First Appellate Court proceedings were completed before 2011 itself. 18. It has to be noted that an amendment was brought in 2015 to Section 142(2). I would like to refer the proviso of section 142(2); 142(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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted into the Negotiable Instruments Act. A perusal of Sub-Section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of Negotiable Instruments Act is concerned, 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 142A. 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. Further observed that, in the above view of the matter, they are satisfied with the judgment rendered by the Apex Court in Dashrath Rupsingh Rathod's case would also not non-suit the appellant for the relief claimed. 22. Havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgments referred supra. The Apex Court also set aside the judgment and in the judgment also it is referred that the cheque in question dated 02.05.2006, drawn on Union Bank of India Chandigarh was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the payee or holder in due course, on 04.08.2006. Further observed, that Court at Indore would have the territorial jurisdiction to take cognizance of the proceedings by complainant under Section 138 of N.I. Act, 1881, after promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015. 24. In the case on hand, the cheque was issued in 2007 and the same was presented in 2007 itself and the same was dishonored. The endorsement was given by the branch at Hospet of the complainant who presented the cheque in Hospet and case is filed before the Sandur Court. When such being the case, the proviso of Amendment Act of 2015, aptly applicable to the case on hand and so also the judgment of the Apex Court in the case of M/s. Bridgestone India Pvt. Ltd., vs. Inderpal Singh, is also aptly applicable to the case on hand. Hence, the contention of the respondent cannot be accepted and there is f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
