Calcutta High Court (Appellete Side)
Ss vs Serial No.65 The State Of West Bengal & ... on 27 June, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
C. R. R. 1971 of 2016
27.06.2016 M/s. General Engineering and Anr.
ss. Vs.
Serial No.65 The State of West Bengal & Anr.
Ct. 28
Ms. Suman Sehanabis Mondal ...for the petitioners.
Re: Application under Section 401 read with Section 482 of the
Code of Criminal Procedure, 1973.
------------
Order dated 22.02.2016 passed by the learned Additional Sessions Judge, Fast Track Court, 1st Court, Tamluk, Purba Medinipur, in Criminal Revision No. 46 of 2015 reversing the order dated 21.02.2015 passed by the learned Judicial Magistrate, 2nd Court, Tamluk in C.R. Case No. 396 of 2013 under Section 138 of the Negotiable Instrument Act, 1881 has been challenged.
By order dated 21.02.2015 the learned Magistrate had directed transfer of the criminal proceeding under Section 138 of the Negotiable Instrument Act, 1881 which had been instituted before the learned Judicial Magistrate, 2nd Court, Tamluk by following the principle laid down by the Apex Court in Dashrath Rup Singh Rathod -Vs.- State of Maharashtra & Anr. (2014)59 OCR (SC) 289, inasmuch as the cheque had been drawn on State Bank of India, Jalpaiguri Branch where it was dishonoured. The Revisional Court by referring to the subsequent amendment of the Negotiable Instrument Act, 1881 vide The Negotiable Instruments (Amendment) Second Ordinance, 2015 held that in view of Section 142(2) read with Section 142A of the Negotiable Instrument Act, 1881, the impugned order was liable to be set aside as the branch of the payee where the dishonoured cheque was presented for encashment was situated within the territorial jurisdiction of the learned Magistrate. 2 Learned advocate for the petitioners submits that the Revisional Court acted illegally inasmuch as once the proceeding was transferred to Jalpaiguri it was not incumbent on the Revisional Court to direct continuation of trial at Tamluk.
I am unable to accept such contention. Section 142A and Section 142(2) of the Negotiable Instrument Act, 1881 as amended 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 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 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) Ordnance, 2015 (6 of 2015), shall be deemed to 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 3 same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court."
A plain reading of section 142(2)(a) of the said Act clearly shows that an offence under section 138 would be enquired into and tried by the Court where the payee or the holder in due course maintained an account where the cheque is delivered for collection through a bank account.
In the instant case, the branch of the drawee bank where the cheque was presented for clearance is situated within the territorial jurisdiction of the Court at Tamluk and, accordingly, the revisional Court rightly invoking the aforesaid provisions of law rectified the order of the learned Magistrate and restored continuation of proceeding at Tamluk.
I do not find any illegality or irregularity in the impugned order. Accordingly, the trial Court is directed to proceed with the trial in accordance with law from the stage it has already arrived at.
With the aforesaid observation, the revision petition is dismissed.
(Joymalya Bagchi, J.)