Gujarat High Court
Pradeep M. Shah S/O Mahipatrai J. Shah & 2 vs State Of Gujarat & on 26 April, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
R/SCR.A/5277/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5277 of 2014
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PRADEEP M. SHAH S/O MAHIPATRAI J. SHAH & 2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VISHAL B MEHTA, ADVOCATE for the Applicant(s) No. 1-3
MR KP RAWAL, ADDITIONAL PUBLIC PROSECUTOR for the
RESPONDENT(s) No. 1
MR PK NANAVATI, ADVOCATE for NANAVATI ASSOCIATES for the
Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 26/04/2016
ORAL ORDER
1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") , the petitioners have prayed for quashing and setting aside the impugned order dated 20.11.2014 passed below Exh.118 in Criminal Complaint no.1628 of 2000. Record indicates that relying upon the judgment of the Apex Court in the case of Dashrath Roopsinh Rathod Vs. State of Maharashtra & Ors., 2014 (2) GLH Page 1 of 8 HC-NIC Page 1 of 8 Created On Tue May 03 00:18:37 IST 2016 R/SCR.A/5277/2014 ORDER 689, it is contended by the present petitioners that the Court at Vadodara had no territorial jurisdiction and prayed that jurisdiction under Section 201(a) of the Code of Criminal Procedure, 1973 be exercised and return a complaint filed to the complainant. The learned Magistrate heard both the parties and by the impugned order dated 20.11.2014 was pleased to reject the said application below Exh.118.
Being aggrieved by the said order, the present petition is filed.
2. This Court (Coram: Vipul M. Pancholi, J.) passed the following order: "Heard learned advocate Shri Vishal B. Mehta for the petitioners and learned Additional Public Prosecutor Ms. Maithili Mehta for the respondentState of Gujarat.
2. Learned advocate for the petitioners submitted that the petitioners gave an application under Section 201(a) of the Criminal Procedure Code, 1973, for returning the complaint to the complainant as per the decision of the Honourable Supreme Court rendered in the case of Dashrath Roopsinh Rathod Vs. State of Maharashtra and others reported in Page 2 of 8 HC-NIC Page 2 of 8 Created On Tue May 03 00:18:37 IST 2016 R/SCR.A/5277/2014 ORDER 2014 (2) G.L.H. 689.
3. Learned advocate for the petitioners further referred to the impugned order dated 20th November 2011 passed by the learned Additional Chief Judicial Magistrate, Vadodara, wherein it is observed that, "In the present case the complainant has already presented the Affidavit in Chief Examination at Ex, 47 on dt. 20.06.2014 and also produced the documentary evidence upon which its relied at Exh.48. And now the present case is pending for cross examination of the complainant by the Accused side."
4. Learned advocate for the petitioners relied upon the decision in the case of Dashrath Roopsinh Rathod (supra), more particularly on paragraph No.20 of the said judgment. He has also relied upon the judgment of this Court dated 8th December 2014 in Special Criminal Application No.4194 of 2014 and allied matters. Relying upon paragraph No.18 of the said judgment, he has submitted that the case of the petitioner is squarely covered by the aforesaid two decisions.
5. In view of the aforesaid submissions, issue urgent notice to the respondents returnable on 5th February 2015. Learned Additional Public Prosecutor Ms. Maithili Mehta waives service of notice on behalf of respondent No.1State of Gujarat. Direct service qua respondent No.2 is permitted.
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R/SCR.A/5277/2014 ORDER
In the meantime, proceedings of Criminal Case No.1628 of 2000 pending before the Court of Additional Chief Judicial Magistrate, Vadodara, are stayed till the next date of hearing."
3. Heard Mr. Vishal Mehta, learned advocate for the petitioner and Mr. K.P. Rawal, learned Additional Public Prosecutor for the respondent
- State and Mr. P.K. Nanavati, learned advocate for respondent no.2. Considering the order dated 27.1.2015 and the main contention raised by the petitioners is that in light of the ratio laid down by the Apex Court in the case of Dashrath Roopsinh Rathod (supra), the Court at Vadodara had no jurisdiction.
4. It is an admitted position that after the judgment of the Apex Court in Dashrath Roopsinh Rathod (supra), Section 142A came to be inserted. At this stage, it would be advantageous to refer to the judgment of the Apex Court in the case of Bridgestone India Private Limited Vs. Inderpal Singh, reported in Page 4 of 8 HC-NIC Page 4 of 8 Created On Tue May 03 00:18:37 IST 2016 R/SCR.A/5277/2014 ORDER (2016) 2 SCC 75, wherein it is observed by the Apex Court as under: "11. In order to overcome the legal position declared by this Court in Dashrath Rupsingh Rathod's case, learned counsel for the appellant has drawn our attention to the Negotiable Instruments (Amendment) Second Ordinance, 2015 (hereinafter referred to as `the Ordinance'). A perusal of Section 1(2) thereof reveals, that the Ordinance would be deemed to have come into force with effect from 15.06.2015. It is therefore pointed out to us, that the Negotiable Instruments (Amendment) Second Ordinance, 2015 is in force. Our attention was then invited to Section 3 thereof, whereby, the original Section 142 of the Negotiable Instruments Act, 1881, came to be amended, and also, Section 4 thereof, whereby, Section 142A was inserted into the Negotiable Instruments Act.
12. Sections 3 and 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015 are being extracted hereunder:
"3. Amendment of Section 142 - In the principal Act, section 142 shall be numbered as subsection (1) thereof and after subsection (1) as so numbered, the following subsection shall be inserted, namely: (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction, Page 5 of 8 HC-NIC Page 5 of 8 Created On Tue May 03 00:18:37 IST 2016 R/SCR.A/5277/2014 ORDER
(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."
4. Insertion of new section - In the principal Act, after section 142, the following section shall be inserted, namely: 142A. Validation for transfer of pending cases (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 subsection (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 Page 6 of 8 HC-NIC Page 6 of 8 Created On Tue May 03 00:18:37 IST 2016 R/SCR.A/5277/2014 ORDER at all material times.
(2) Notwithstanding anything contained in subsection (2) of section 142 or subsection (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 subsection (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 this Ordinance, 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 jurisdiction under subsection (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that subsection had been in force at all material times."
(Emphasis supplied)
13. A perusal of the amended Section 142(2), extracted above, leaves no Page 7 of 8 HC-NIC Page 7 of 8 Created On Tue May 03 00:18:37 IST 2016 R/SCR.A/5277/2014 ORDER 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."
5. The learned advocates appearing for the respective parties have agreed that issued involved in this petition is covered by the judgment of the Apex Court in Bridgestone India Private Limited (supra). In facts of the case therefore, applying the ratio of Bridgestone India Private Limited (supra) and considering the provisions of Section 142A of the Negotiable Instruments Act, 1881, no interference is called for. The petition therefore deserves to be dismissed and is hereby rejected. Interim relief granted earlier stands vacated. Notice discharged.
(R.M.CHHAYA, J.) mrp Page 8 of 8 HC-NIC Page 8 of 8 Created On Tue May 03 00:18:37 IST 2016