Rajasthan High Court - Jodhpur
Madan Lal vs State & Anr on 26 July, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 451 / 2015
Madan Lal, aged about 45 years, s/o Sh. Mohan Lal, b/c Chavhan
(Jain), r/o Kanchan Villa, Shanti Colony, Nayi Abadi, Kakaroli,
District Rajsamand (Raj.).
----Petitioner
Versus
1. State of Rajasthan through the learned Prosecutor.
2. Ganesh Joshi, aged about 35 years, s/o Sh. Ranveer Dutt, b/c
Joshi, r/o 76, Jai Nagar, Pali (Raj.).
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.Om Singh Chauhan
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
Mr.Yogesh Sharma
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 26/07/2017
1. This criminal misc. petition under Section 482 Cr.P.C.
has been preferred against the order dated 24.11.2014 passed by learned Additional Chief Judicial Magistrate (Communal Riots), Pali (Raj.) in Criminal Original Complaint Case No.157/2013, whereby an application dated 16.10.2014 submitted by the petitioner for dismissing the complaint, has been rejected.
2. The sole basis of the challenge to the impugned order by the petitioner is that the precedent law laid down by the Hon'ble Apex Court in Dashrath Rupsingh Rathod vs State Of Maharashtra & Anr. (CRIMINAL APPEAL NO. 2287 OF 2009 decided on 01.08.2017) ought to have been followed, and in light of the said precedent law, since there was a jurisdictional (2 of 7) [CRLMP-451/2015] nullity, therefore, the learned court below ought not to continue with the proceedings.
3. At the outset, learned counsel for the petitioner submits that the precedent law of Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr. (supra) does not exist, as the Hon'ble Supreme Court, after considering the same, has reversed the said view, as is abundantly clear from the observations made by the Hon'ble Supreme Court in M/s. Bridgestone India Pvt.
Ltd. Vs. Inderpal Singh, reported in 2015 AIR SCW 6556, relevant portion of which is as follows :-
"10. 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. Sections 3 and 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015 are being extracted hereunder:"
"3. In the principal Act, section 142 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following (3 of 7) [CRLMP-451/2015] sub-section shall be inserted, namely:-
(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."
4. In the principal Act, after section 142, the following section shall be inserted, namely:-
142A. (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 (4 of 7) [CRLMP-451/2015] have been transferred under this Ordinance, 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 this Ordiance, 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 sub-section (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 sub-section had been in force at all material times.
(5 of 7) [CRLMP-451/2015] A perusal of the amended Section 142(2), extracted above, leaves no 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.
11. It is, however, imperative for the present controversy, that 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 the 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. 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 non-suit the appellant for the relief (6 of 7) [CRLMP-451/2015] 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 the sum of Rs.26,958/-, drawn on the Union Bank of India, Chandigarh, dated 02.05.2006, was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the appellant on 04.08.2006, we are of the view that the Judicial Magistrate, First Class, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881, after the promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015. The words "...as if that sub-section had been in force at all material times..." used with reference to Section 142(2), in Section 142A(1) gives retrospectivity to the provision.
(7 of 7) [CRLMP-451/2015]
14. In the above view of the matter, the instant appeal is allowed, and the impugned order passed by the High Court of Madhya Pradesh, by its Indore Bench, dated 05.05.2011, is set aside. The parties are directed to appear before the Judicial Magistrate, First Class, Indore, on 15.01.2016. In case the complaint filed by the appellant has been returned, it shall be re-presented before the Judicial Magistrate, First Class, Indore, Madhya Pradesh, on the date of appearance indicated hereinabove.
Criminal Appeal No.1562 of 2015 (Arising out of SLP(Crl.)No.9758 of 2011), Criminal Appeal No.1563 of 2015 (Arising out of SLP(Crl.) No. 10019 of 2011) and Criminal Appeal No.1564 of 2015 (Arising out of SLP(Crl.)No.10020 of 2011)
15. Leave granted.
16. Despite service, no one has entered appearance on behalf of the respondent."
Thus, in light of the current precedent law, the ground of the petitioner to approach this Court cannot be sustained.
4. After hearing the learned counsel for the parties as well as perusing the record of the case alongwith with the current precedent law, this Court is of the opinion that in the current precedent law, the Hon'ble Apex Court has finally settled the position of jurisdiction and reversed the position in Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr. (supra), and therefore, no ground for granting any indulgence in the impugned order is made out.
5. Consequently, the present misc. petition is dismissed.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-