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TMI Blog2023 (9) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... Instruments Act, 1881 is a Special Jurisdiction conferred by Sec. 142 of the NI Act, Notwithstanding anything contained in Criminal Procedure Code, must be strictly construed and only the Court Specified in Sec. 142(2) alone shall have the jurisdiction to entertain the complaint. iii. Declare that the dispute between the Complainant, Writ petitioners and Respondents 2 & 3 are Civil Disputes arising out of Exhibit-P2, agreement for Specific Performance of Construction of Commercial Building in immovable property and the delay in performing the act agreed will only entail the civil consequences. iv. Declare that the liability under the Cheque and NI Act proceedings taken over by the contracting parties, Respondents 2 & 3 the proceedings against the petitioners who are erstwhile partners is not maintainable. v. That by virtue of the agreement between the Complainant and Accused, mediation and Arbitration are provided in the agreement and criminal prosecution is not contemplated with respect to any dispute arising and incidental to the rights arising under the agreement. 4. Heard the learned counsel for the petitioners as well as the learned counsel for the respondents. 5. I ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the petitioners, 'if the cheque is delivered for collection through an account' contemplated under Section 142(2) (a)of the NI Act, is intended to confer jurisdiction to a court where the payee or holder in due course presents the cheque for collection and the cheque shall be one issued through an account maintained by the payee or holder in due course and the definition of the word 'delivered' is to be understood from the word 'delivery' as defined under Section 46 of the NI Act. It is submitted that, as per Section 46 of the NI Act, 'delivery' means, 'the making, acceptance or indorsement of a promissory note, bill of exchange or cheque is completed by delivery, actual or constructive'. It is also argued that, in the instant case, the cheque was not issued through an account maintained by the payee in State Bank of India, Chennithala, though the cheque is a crossed cheque to be encashed only through an account. As such, Section 142(2)(a) of the NI Act does not confer jurisdiction to the Judicial First Class Magistrate Court - 1, Chengannur, merely because the cheque was presented through an account maintained in a Bank, within the jurisdiction of the said court. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the NI Act and the explanation provided to Section 142(2)(a). Section 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 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. 13. In this connection, it is relevant to refer the circumstances, which led to amendment of Section 142 and introduction of Section 142-A of the NI Act, with effect from 15.06.2015. 14. As per the decision in Dashrath Rupsingh Rathod v. State of Maharashtra and Anr. reported in [AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of Section 142(2)(a) along with explanation thereof, makes the position emphatically clear that, when a cheque is delivered or issued to a person with liberty to present the cheque for collection at any branch of the bank where the payee or holder in due course, then, the cheque shall be deemed to have been delivered or issued to the branch of the bank, in which, the payee or holder in due course, as the case may be, maintains the account, and within the jurisdiction of the court, where such cheque was presented for collection, will have jurisdiction to entertain complaint alleging commission of offence punishable under Section 138 of the NI Act. In view of the above finding, the word 'delivered' used in Section 142(2)(a) of the NI Act has no significance and significance must be given to the text 'for collection through an account'. That is to say, delivery of the cheque takes place where the cheque was issued and presentation of the cheque will be through the account of the payee or holder in due course, and the said place is decisive to determine the question of jurisdiction. Therfore, challenge raised by the learned counsel for the petitioners referring definition of the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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