Delhi District Court
Sh. Vikram Monga vs Sh. Sanjay Dhingra on 14 March, 2018
IN THE COURT OF SH. SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-5, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO.204958/2016
In the matter of:
Sh. Vikram Monga
S/o Sh. P.N. Monga
R/o A-670, Sushant Lok-I,
Gurgaon, Haryana ........Revisionist
Versus
1. Sh. Sanjay Dhingra
S/o Late K.C. Dhingra
2. Smt. Shikha Dhingra
W/o Sh. Sanjay Dhingra
Both R/o F-17, Jungpura Extension,
New Delhi ........Respondents
Instituted on : 27.07.2016
Reserved on : 30.11.2017
Pronounced on : 14.03.2018
JUDGMENT
This revision petition has been filed by the revisionist under Section 397 of the Code of Criminal Procedure, 1973 (in short "Code") against the order dated 03.06.2016 passed by the learned Metropolitan Magistrate-05, Patiala House Courts, New Delhi in CC No. 109/1/14 titled as "Vikram Monga v. Sanjay Dhingra" whereby file CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.1 of 16 was directed to be sent/transferred to the court of learned Chief Judicial Magistrate, Noida, UP through the learned Chief Metropolitan Magistrate, New Delhi because the payee bank was situated within the jurisdiction of Noida.
2. Revisionist-complainant had instituted a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (in short "NI Act") against the respondents-accused persons stating that complainant is owner/landlord of the property bearing No. J-40B (Ground Floor), Lajpat Nagar-II, New Delhi which was let out to the accused vide registered lease deed dated 05.07.2007 for a period of eight years w.e.f. 01.08.2007 to 31.07.2015 and accused persons issued cheque No.149293 dated 24.03.2012 for Rs.91,328/- drawn on ICICI Bank, Lajpat Nagar-II, New Delhi duly signed by the accused No.2. Said cheque was present by the complainant for encashment with his bankers at Allahabad Bank, Sector-44, Noida on 24.02.2012 for encashment but same was returned unpaid due to the reason funds insufficient vide return memo dated 26.03.2012. The complainant issued legal notice dated 03.04.2012 to the accused persons but despite the said legal notice accused failed to make payment of the dishonoured cheque.
3. Notice was framed against the respondents/accused persons on 29.05.2013. The case was at the stage of defence evidence then impugned order dated 03.06.2016 was passed by the learned Metropolitan Magistrate.
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4. Learned counsel for the revisionist has submitted that the complaint was not liable to be transferred to the court at Noida because in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr., (2014) 9 SCC 129, Hon'ble Supreme Court had laid down the law that where during a trial at stage of post-summoning and appearance of alleged accused, the recording of evidence has commenced as envisaged in Section 145 (2) of N.I. Act, the complaint will continue to proceed where they are filed. The ratio of Dashrath Rupsingh Rathod's case is still prevail after the Amendment Act, 2015 and same was not disturbed by the latest amendment in the N.I. Act which changes the jurisdiction of the Court as per the presenting bank. In passing the impugned order, the Judgment cited by him and contentions advanced by him were not taken into consideration and therefore, impugned order may be set aside. He has placed reliance upon the decisions namely Dashrath Rupsingh Rathod's case (supra) ; M/s. Jeet Radiators and Meter Works and Anr. v. M/s. Namdhari Traders & Anr., CRR No. 3160/2014 passed by the Punjab and Haryana High Court ; Ultra Tech Cement Ltd. v. Rakesh Kumar Singh & Anr., Criminal Appeal No. 717/2015 passed by Hon'ble Supreme Court on 24.04.2015 and Baiju v. The Chief Executive Officer & Anr., Tr.P (Crl.) No. 61/2015 passed by Hon'ble Kerala High Court in support of his contention.
5. Per contra, Learned counsel for the respondent has opposed the revision petition stating that all the cases irrespective of stage of CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.3 of 16 cases were to be transferred to the jurisdiction where bank of accused situated and bank of accused is situated at Noida. Dashrath Rupsingh Rathod's Judgment has no application when Second Ordinance was passed. He has placed reliance upon the decision namely M/s. Bridgestone India Pvt. Ltd. v. Inderpal Singh, Criminal Appeal No. 1557/2015 passed by Hon'ble Supreme Court on 24.11.2015.
6. Hon'ble Apex Court in Dashrath Rup Singh Rathod's case (supra), has held that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145 (2) of the N.I. Act will proceeding continue at that place ; that the category of complaint cases where proceedings have gone to the stage of Section 145 (2) or beyond shall be deemed to have been transferred by us from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where it is presently pending ; that all other complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the complainant for filing in the proper court, in consonance with our exposition of law ; that such complaints are filed/re-filed within 30 days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.
7. In order to overcome the legal position declared in Dashrath Rupsingh Rathod's case, Negotiable Instruments (Amendment) CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.4 of 16 Ordinance, 2015 ; Negotiable Instruments (Amendment) Second Ordinance, 2015 and the Negotiable Instruments (Amendment) Act, 2015 were promulgated/passed.
8. The Negotiable Instruments (Amendment) Ordinance, 2015 (Ordinance No. 6 of 2015) was promulgated which came into force on 15.06.2015 whereby Section 142 of the N.I. Act was amended and Section 142 was numbered as sub-section (1) thereof and after sub- section (1) as so numbered, the following sub-section was 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 CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.5 of 16 branch of the bank in which the payee or holder in due course, as the case may be, maintains the account."
9. By said Ordinance (Ordinance No. 6 of 2015), Section 142 A was inserted also regarding validation for transfer of pending cases, which reads as follows:-
"142A. (1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or direction of any court, all cases arising out of Section 138 which were pending in any court, whether filed before it, or transferred to it, befire the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the court having jurisdiction under sub-section (2) of Section 142 as if that sub-section had been enforced 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 CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.6 of 16 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 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 before which the first case was filed and is pending, as if that sub-section had been in force at all material times."
10. After the first Ordinance (Ordinance No. 6 of 2015), the Negotiable Instruments (Amendment) Second Ordinance, 2015 (Ordinance No. 7 of 2015) was promulgated which came into force on 15.06.2015 whereby Section 142 of the N.I. Act was amended and Section 142 was numbered as sub-section (1) thereof and after sub- section (1) as so numbered the following sub-section was 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 CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.7 of 16 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."
11. By said Second Ordinance (Ordinance No. 7 of 2015), Section 142 A was inserted in the principal Act (N.I. Act) regarding validation for transfer of pending cases, which reads as follows:-
"142A. (1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or direction 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 (Ord. 6 of 2015), shall be deemed to have been transferred under this Act, 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 CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.8 of 16 (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) Act, 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 courts, upon the said fact having been brought to the 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."
12. After the Negotiable Instruments (Amendment) Second Ordinance, 2015, the Negotiable Instruments (Amendment) Act, 2015 was passed on 26.12.2015 which came into effect on 15.06.2015. After this Amendment Act, Section 142 was amendment and 142 A was inserted after Section 142 in the Principal Act. Now Section 142 (2) and 142 A reads as follows:-
"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 CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.9 of 16 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.
142A. Validation for transfer of pending cases - (1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or direction 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 (Ord. 6 of 2015), shall be deemed to have been transferred under this Act, 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 CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.10 of 16 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) Act, 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 courts, upon the said fact having been brought to the jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015), before which the first case was filed and is pending, as if that sub-section had been in force at all material times."
13. The impugned order dated 03.06.2016 passed by the Learned Metropolitan Magistrate/trial court reads as follows:-
"ORDER Present: Proxy counsel for complainant.
The brief question for consideration is that whether the present complainant is required to be transferred in view of the Negotiable Instrument (amendment) Ordinance, 2015. During the course of arguments accused persons submitted that CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.11 of 16 present case is lible to be transferred to Noida as complainant held his bank account Allahabad Bank, Sector-14, Noida-201301. The cheque in question were presented in the said account by the complainant.
Complainant filed two judgments and submitted that trial may be continued before this court. In this regard sub-section (2) of 142 of NI Act is to be considered as under.
The Section 142 (2) NI Act; the offence u/s 138 NI Act 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, maintain 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.
Section 142 (A) of the Negotiable Instrument Act envisages:
1. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of Section 138 which were pending in CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.12 of 16 any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the court having jurisdiction under sub-section (2) of Section 142 as if that sub-section had been in force at all material times.
The careful reading of the Ordinance clearly shows that, the cases relating to the offence u/s 138 NI Act have to be tried under Act within whose jurisdiction cheque is presented by the drawee.
The facts of the complaint reveals that the complainant has deposited the impugned cheque for encashment in his account maintained with Allahabad Bank, Sector-14, Noida. As per the complaint the payee bank is situated with the jurisdiction of Noida.
In view of the aforesaid referred Ordinance and relevant provisions, the complaint is required to be transferred to the Court having jurisdiction under Sub Section (2) of Section 142 of the Negotiable Instruments Act, 1881.
According, file be sent to the Court of learned CJM, Noida. On 05.08.2016 through the learned Chief Metropolitan Magistrate, New Delhi Distt, New Dehli.
Ahlmad is directed to take necessary CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.13 of 16 steps.
Announced in the open court Dr. Pankaj Sharma MM-05/PHC/ND/03.06.2016"
14. The impugned order as reproduced above was passed by the learned Metropolitan Magistrate on 03.06.2016 and same was passed in view of the Negotiable Instruments (Amendment) Ordinance, 2015 (First Ordinance). But question is as to whether on the date of impugned order i.e. 03.06.2016, the Negotiable Instruments (Amendment) Ordinance was in force or not. The answer of this question is that said Ordinance (First Ordinance) was not in force on 03.06.2016 and therefore, no order on relying the said ordinance can be passed. The First Ordinance came into force on 15.06.2015 and thereafter, Second Ordinance was passed on 22.09.2015 which came into force on 15.06.2015 and thereafter the Negotiable Instruments (Amendment) Act, 2015 was passed on 26.12.2015 which came into force on 15.06.2015. There are some difference in Section 142 A (1) of First Ordinance and the Second Ordinance or Amendment Act, 2015. Section 142 A (1) of First Ordinance provides for transfer of the case but Second Ordinance or Amendment Act, 2015 do not provide for said transfer. In Section 142 A (1) of First Ordinance, It was provided that the all cases arising out of Section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of Negotiable Instruments (Amendment) CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.14 of 16 Ordinance, 2015 shall be transferred to the Court having jurisdiction under sub-section (2) of Section 142 as if that sub-section had been in force at all material times. Hence, First Ordinance gives power to the trial court to transfer the cases as mentioned in the said Ordinance. But Section 142 A(1) of Second Ordinance or Amendment Act, 2015 provides that all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015), shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times. Hence, Section 142A (1) of Second Ordinance or Amendment Act, 2015 do not provide for transfer of the case but cases which have already been transferred as per First Ordinance have been declared to have been transferred under that Amendment Act or Second Ordinance. The learned Metropolitan Magistrate had taken power from the Section 142A (1) of the First Ordinance to transfer the case, whereas at the time of passing the impugned order said First Ordinance was not in force and at that time i.e., 03.06.2016, the Amendment Act (The Negotiable Instruments (Amendment) Act, 2015 was in force. So far as, Section 142A(2) and Section 142A(3) of the Negotiable Instruments (Amendment) Act, 2015 are concerned, same are not applicable in the facts and circumstances of the case.
15. In view of above discussion, I am of the view that impugned order dated 03.06.2016 passed by the learned Metropolitan Magistrate/Trial Court is liable to be set aside only in view of the fact CR No.204958/2016 Vikram Monga v. Sanjay Dhingra Page No.15 of 16 that the First Ordinance (The Negotiable Instruments (Amendment) Ordinance, 2015 i.e., Ordinance No.6 of 2015) was not in force at the time of passing of impugned order. Hence, revision is allowed and impugned order is set aside. Parties shall appear before the learned Trial Court on 21.03.2018. Learned Trial Court shall proceed further in accordance with law.
Announced in the open court
on 14.03.2018 (SANJEEV KUMAR)
Additional Sessions Judge-05
South East District, Saket Courts
New Delhi
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