Gujarat High Court
Gautam Industrial Corporation Pvt Ltd ... vs State Of Gujarat & 6 on 5 August, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/182/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 182 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GAUTAM INDUSTRIAL CORPORATION PVT LTD THRO' NARESH ANNRAJ
BHANSALI (DECEASED)....Applicant(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR HARDIK A DAVE, ADVOCATE for the Applicant(s) No. 1
MR MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 7
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 05/08/2016
ORAL JUDGMENT
1. This Revision Application is filed under section 397 read with section 401 of the Code of Criminal Procedure (for short the Code) Page 1 of 8 HC-NIC Page 1 of 8 Created On Tue Aug 09 03:09:31 IST 2016 R/CR.RA/182/2015 JUDGMENT to challenge the order dated 27th March 2015 of learned 3rd Additional Chief Judicial Magistrate, Surat, in Criminal Case No. 14409 of 2014 whereby relying upon the decision of the Supreme Court in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra 2014(9) SCC129, learned Additional Chief Judicial Magistrate returned the complaint and original documents to the present applicant (original complainant) for being presented before the competent court.
2. The brief facts giving rise to the present application are that the private respondents gave 7 cheques totaling to Rs.14,45,879/- towards discharging the dues to the applicant Corporation. The details of the cheques which were drawn on Axis Bank, Bangalore Branch are as under:-.
Sr. No. Cheque No. Cheque amount
1 50113 Rs.2,00,000/-
2 50114 Rs.2,00,000/-
3 50115 Rs.2,00,000/-
4 50116 Rs.2,00,000/-
5 50117 Rs.2,00,000/-
6 50118 Rs.2,00,000/-
7 50119 Rs.2,00,000/-
3. The applicant presented those cheques for clearance to its bank namely Bank of Baroda, Ambaji Road, Branch, Surat. These cheques were dishonoured on the ground that the payment was stopped by the private respondents. The applicant issued a legal notice to the private respondents demanding the amount of the dishonoured cheques. The notice was served upon the privates respondents on 28th December 2013 and 30th December 2013. The private respondents were also informed in the said notice by the applicants that they would be compelled to initiate the proceedings under section 138 of the N.I Act, if the payment was not made Page 2 of 8 HC-NIC Page 2 of 8 Created On Tue Aug 09 03:09:31 IST 2016 R/CR.RA/182/2015 JUDGMENT within 15 days from the receipt of the notice. Despite receipt of the notice, the private respondent failed to discharge their obligation of the amount of the dishonoured cheques nor did they respond to the legal notice. The applicant was therefore, constrained to file Criminal case no. 14409 of 2014 for the offences punishable under section 137 of the N.I Act against the private respondent in the Court of learned 3rd Additional Chief Judicial Magistrate, Surat, who by order dated 27th March 2015 relying upon the decision of the Supreme Court in the case of Dashrath Rupsingh Rathod (supra), returned the complaint along with its original documents to the applicant for being presented to the competent criminal court having jurisdiction to try the case in terms of the decision of the Supreme Court.
4. The applicant being aggrieved and dissatisfied by the impugned order passed by the learned trial judge filed this Revision Application.
5. I have heard Mr. Hardik Dave learned advocate for the applicant and Mr. Manan Mehta, learned Additional Public Prosecutor for the State. There is no appearance on behalf of respondent no. 2 to 7 despite service of notice of rule.
6. With a view to overcome the legal proposition of law declared by the High Court in the case of Dashrath Rupsingh Rathod (supra), the N.I Act (amendment) second ordinance, 2015 (herein after referred to as the Ordinance) came to be promulgated by the President of India. Perusal of section 1 (2) makes it manifestly clear that the ordinance is deemed to have come into force w.e.f 15.6.2015. Sections 3 and 4 of the of the N.I (Amendment) Second Ordinance 2015 reads as under :
3. In the principal Act, section 142 shall be numbered as sub-section (1) thereof and after Page 3 of 8 HC-NIC Page 3 of 8 Created On Tue Aug 09 03:09:31 IST 2016 R/CR.RA/182/2015 JUDGMENT sub-section (1) as so numbered, the following 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 have been transferred under this Ordinance, as if that sub-section had been in force at all material times.
(2) Notwithstanding anything contained in subsection (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 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 Page 4 of 8 HC-NIC Page 4 of 8 Created On Tue Aug 09 03:09:31 IST 2016 R/CR.RA/182/2015 JUDGMENT 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 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 subsection had been in force at all material times.
7. The Supreme Court in the recent decision in the case of Bridgestone India Private Limited Vs Inderpal Singh (2016)2 SCC75 has analysed and interpreted newly inserted provisions in the N.I Act and has observed as under :
13. 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.Page 5 of 8
HC-NIC Page 5 of 8 Created On Tue Aug 09 03:09:31 IST 2016 R/CR.RA/182/2015 JUDGMENT
14. 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 Rathods case would also not non-suit the appellant for the relief claimed.
15. 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 Rathods case,would not stand in the way of the appellant, insofar territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case Page 6 of 8 HC-NIC Page 6 of 8 Created On Tue Aug 09 03:09:31 IST 2016 R/CR.RA/182/2015 JUDGMENT arises.
16. 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.
7.1 Thus, the conjoint reading of the newly inserted provision of the N.I Act and the judgment of the Supreme Court in Bridgestone India Private Limited (supra), it is vividly clear that the newly inserted provisions of the N.I Act are applicable with retrospective effect of 15.6.2015 and the decision of the Supreme Court in the case of Dashrath Rupsingh Rathod (supra), is statutorily superseded. I am, therefore, of the view that the impugned order of the learned trial Magistrate requires interference in this Revision Application.
8. For the forgoing reasons this Revision Application is allowed.
Order dated 27th March 2015 passed by learned 3rd Additional Chief Judicial Magistrate, Surat, below Exhibit-1 in Criminal Case No.14409 of 2014, is hereby quashed and set aside. Criminal Case No.14409 of 2014 is restored on the file of learned trial Magistrate who shall decide the same in accordance with law. Rule is made absolute. Direct service is permitted.
Page 7 of 8 HC-NIC Page 7 of 8 Created On Tue Aug 09 03:09:31 IST 2016 R/CR.RA/182/2015 JUDGMENT (S.G.SHAH, J.) drashti Page 8 of 8 HC-NIC Page 8 of 8 Created On Tue Aug 09 03:09:31 IST 2016