Delhi High Court
Goyal Mg Gases Pvt.Ltd. vs Ind Syndergy Limited & Ors. on 19 January, 2017
Author: Vipin Sanghi
Bench: Vipin Sanghi
$~4-33.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 19.01.2017
% TR.P.(CRL.) Nos. 37-66/2016
GOYAL MG GASES PVT LIMITED ..... Petitioner
Through: Mr. Pramod Kumar Dubey, Mr. Rohit
Priya Ranjan, Ms. Megha &
Mr.Anurag Andley, Advocates.
versus
IND SYNERGY LIMITED & ORS ..... Respondents
Through: Mr. Vikas Pahwa, Senior Advocate
along with Mr. Siddharth Agarwal,
Mr. S. Santanam Swaminadhan,
Mr.Rahul Sharma, Ms. Nishtha
Khurana, Mr. Sanjay Shukla &
Ms.Kinnori Ghosh, Advocates for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. These 30 petitions have been preferred by the petitioner/ complainant
under Section 407 Cr.P.C. read with Section 482 Cr.P.C. and Article 227 of
the Constitution of India to, firstly, seek quashing of the common order
dated 02.06.2016 passed by the learned MM (N.I. Act)-01, South-East,
Saket, in the 30 complaints filed by the petitioner/ complainant against the
respondents under Section 138 of the Negotiable Instruments Act.
TR.P.(CRL.) Nos. 37-64/2016 Page 1 of 22
2. By the common impugned order dated 02.06.2016, the applications
filed by the petitioner/ complainant for transfer of the said 30 complaints
have been dismissed on the premise that the said complaints stood returned
by the learned M.M. on 30.08.2014 with direction to re-file the same in the
Court having territorial jurisdiction in pursuance of the judgment of the
Supreme Court dated 01.08.2014 in Dashrath Rupsingh Rathod Vs. State
of Maharashtra & Anr., (2014) 9 SCC 129, and thus, the Court of the
learned Magistrate had become functus officio. The learned Magistrate held
that Negotiable Instruments (Amendment) Act, 2015 is applicable only in
respect of pending cases, and the said 30 complaint cases of the complainant
were no longer pending after passing of the order dated 30.08.2014.
3. These 30 petitions arise in the same factual background, and the
grievance of the petitioner in these 30 petitions is also in respect of common
impugned order dated 02.06.2016. Learned counsels have addressed
common arguments in all these cases. In fact, respondent No.1 has filed its
reply in Trp.(Crl.) No.37/2016 and learned senior counsel for the
respondents has submitted that the said reply may be read in all the other
cases as well. Consequently, I proceed to dispose of these 30 petitions by
this common judgment. The factual background in which these petitions
have come to be filed may now be taken note of.
4. It is the case of the petitioner that in relation to commercial
transactions between the parties, the respondents issued numerous cheques
to the complainant. The complaints came to be filed since the cheques had
been dishonoured upon presentation and the amounts covered by the said
cheques were not paid despite issuance of the statutory notices under Section
TR.P.(CRL.) Nos. 37-64/2016 Page 2 of 22
138 of the NI Act. 37 such complaints were preferred - including the 30
complaints in which the common impugned order has been passed by the
learned MM dated 02.06.2016. In all these 37 cases, the learned Magistrate
took cognizance and summoned the respondent/ accused vide order dated
07.03.2014.
5. While the complaints were pending, the Supreme Court rendered its
decision in Dashrath Rupsingh Rathod (supra), wherein the Supreme Court
ruled on the aspect of territorial jurisdiction of the Court which could
entertain the complaints under Section 138 of the NI Act. The Supreme
Court held that the offence under Section 138 of the NI Act stands
committed on the dishonour of the cheque and, accordingly, the Judicial
Magistrate of the place where the dishonour occurs is ordinarily the place
where the complaint may be filed, entertained and tried. The Supreme Court
held that the place of the issuance, or delivery of the statutory notice, or
where the complainant chooses to present the cheque for encashment by his
bank, are not relevant for the purposes of territorial jurisdiction of the Court
where the complaint could be filed. The Supreme Court held that the
territorial jurisdiction in respect of the offence under Section 138 of the NI
Act is restricted to the Court within whose local jurisdiction the offence has
been committed, which is the place where the dishonour by the bank - on
which it is drawn, is situated.
6. The Supreme Court then proceeded to pass directions in relation to
the pending complaints under Section 138 of the NI Act throughout the
country. The direction in this regard is contained in paragraph 22 of the said
decision, which reads as follows:
TR.P.(CRL.) Nos. 37-64/2016 Page 3 of 22
"22. We are quite alive to the magnitude of the impact that the
present decision shall have to possibly lakhs of cases pending
in various courts spanning across the country. One approach
could be to declare that this judgment will have only
prospective pertinence i.e. applicability to complaints that may
be filed after this pronouncement. However, keeping in
perspective the hardship that this will continue to bear on
alleged respondent-accused who may have to travel long
distances in conducting their defence, and also mindful of the
legal implications of proceedings being permitted to continue in
a court devoid of jurisdiction, this recourse in entirety does not
commend itself to us. Consequent on considerable
consideration we think it expedient to direct 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 Negotiable Instruments Act,
1881, will proceeding continue at that place. To clarify,
regardless of whether evidence has been led before the
Magistrate at the pre-summoning stage, either by affidavit or
by oral statement, the complaint will be maintainable only at
the place where the cheque stands dishonoured. To obviate
and eradicate any legal complications, 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. All other complaints (obviously
including those where the respondent-accused has not been
properly served) shall be returned to the complainant for
filing in the proper court, in consonance with our exposition
of the law. If such complaints are filed/refiled within thirty
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." (emphasis supplied)
7. In view of the aforesaid decision in Dashrath Rupsingh Rathod
(supra), the learned Metropolitan Magistrate vide orders dated 30.08.2014
directed return of the 37 complaints and original documents to the
TR.P.(CRL.) Nos. 37-64/2016 Page 4 of 22
complainant, after placing certified copies of the same on record, since the
cheques in question in the said 37 cases were drawn on Bank of India,
Raigarh, Chhattisgarh. Since notice had not been framed in the said 37
complaints, in view of the decision in Dashrath Rupsingh Rathod (supra),
the Court held that it had no territorial jurisdiction to try the said cases and,
consequently, directed return of the complaints to be filed before the Court
having territorial jurisdiction to try the same within thirty days from the date
of the order.
8. The petitioner challenged the order dated 30.08.2014 passed by the
learned MM before this Court by filing a Criminal Miscellaneous (Main)
petition. The operation of the order dated 30.08.2014 directing return of the
complaint for it being filed before the competent Court having jurisdiction at
Raigarh, Chhattisgarh was, however, stayed by this Court.
9. I may observe that in respect of 7 of the said 37 complaints, the
petitioner had taken the complaints on 25.09.2014 and filed the same before
the competent Court at Raigarh, Chhattisgarh on 29.09.2014, since certified
copies in respect of the said 7 complaints had been provided to the
petitioner.
10. Subsequently, the petitioner filed 35 similar Criminal Miscellaneous
(Main) petitions before this Court, and vide order dated 01.10.2014 in each
of these cases, the operation of the order dated 30.08.2014 passed in the
respective complaints were stayed. Yet another petition was filed in respect
of one of these cases, and on 15.10.2014, the Court had stayed the operation
of the order dated 30.08.2014. Thus, in all the 37 complaint cases - which
TR.P.(CRL.) Nos. 37-64/2016 Page 5 of 22
had been directed to be returned to the complainant vide order dated
30.08.2014 (for being filed before the competent Court having jurisdiction at
Raigarh, Chhattisgarh), the petitioner obtained stay of the operation of the
order passed by the learned Magistrate on 30.08.2014.
11. Eventually, vide judgment dated 16.12.2014, this Court dismissed all
the Criminal Miscellaneous (Main) petitions preferred by the petitioner by
holding that the Courts in Delhi had no territorial jurisdiction to entertain
and try the complaints. The order dated 30.08.2014 passed by the learned
MM in each of the cases was upheld.
12. The petitioner then preferred Special Leave Petitions (SLPs) before
the Supreme Court to assail the common judgment dated 16.12.2014. The
Supreme Court issued notice in the SLPs on 13.01.2015 and also granted
interim stay of the judgment passed by this Court on 16.12.2014. The
Supreme Court also ordered that "in the meantime, the petitioner may re-file
the complaint which the Magistrate will keep it on record, though may not
proceed with the matter until further orders".
13. Learned counsel for the petitioner has pointed out that the said
direction pertained to the 7 complaints which had, in the meantime, been
returned to the petitioner for being filed before the competent Court having
jurisdiction at Raigarh, Chhattisgarh. The petitioner states that in view of
the said direction, the said complaints were re-filed before the learned
Metropolitan Magistrate at Delhi having jurisdiction to deal with the same.
14. So far as the 30 cases with which I am presently concerned, the
complaints remained with the learned Magistrate at Saket Courts, Delhi.
TR.P.(CRL.) Nos. 37-64/2016 Page 6 of 22
The submission of the petitioner in this regard is that since operation of the
order dated 30.08.2014 had initially been stayed by this Court vide order
dated 01.10.2014, and thereafter by the Supreme Court, there was no reason
or occasion for the petitioner to take back the complaints from the Court of
the concerned learned Metropolitan Magistrate, Saket Courts. In view of the
stay of operation of the order dated 30.08.2014, the said order could not
have been given effect to, and, its non-compliance could not have visited the
petitioner with any adverse consequences.
15. The further case of the petitioner is that during pendency of the SLPs
before the Supreme Court - while the stay was operating, the "Negotiable
Instruments (Amendment) Ordinance, 2015" and, subsequently, the
Negotiable Instruments (Amendment) Act - so as to amend the Negotiable
Instruments Act, came to be issued/ passed. The submission of the
petitioner is that the effect of the said Ordinance and the Amendment Act
was that all complaints under Section 138 of the NI Act, which were
pending when the said judgment was delivered and which stood transferred
in terms of the judgment of the Supreme Court in Dashrath Rupsingh
Rathod (supra), were to be filed and tried before the same Court which had
passed the order of transfer.
16. In the light of the aforesaid amendment - initially introduced by an
Ordinance, and thereafter by an Amendment Act, the petitioner states that
the petitioner moved applications for revival of the complaints. The same,
however, remained pending since the interim order passed by the Supreme
Court was in vogue. Once the Amendment Act had been passed in
pursuance of the Ordinance, the SLPs preferred by the petitioner were
TR.P.(CRL.) Nos. 37-64/2016 Page 7 of 22
disposed of as infructuous on 11.03.2016.
17. The submission of the petitioner is that although the petitioner's
applications for revival of the complaints remained pending before the
learned MM, Saket, but since the Court at Saket did not have territorial
jurisdiction in terms of the amended Act, the petitioner filed applications
before the learned MM, Saket seeking transfer of the said complaints to the
competent Court at Patiala House Courts having jurisdiction in the matter.
The applications were filed on the premise that under Section 142(2)(a) of
the Negotiable Instruments Act, 1881, as amended by Negotiable
Instruments (Amendment) Act, 2015, the complaint could be preferred
within the jurisdiction of the Court where the branch of the bank - where the
payee or holder in due course, as the case may be, maintains the accounts, is
situated. Since the petitioners/ complainant's bank account - in respect of
the cheques involved in the complaints in question were maintained with the
State Bank of India having its branch at Tolstoy Marg, New Delhi, which
falls within the jurisdiction of the PS - New Delhi District, New Delhi, i.e.
within the jurisdiction of the Patiala House Courts, the said applications
were preferred by the petitioner. As noticed above, the learned Metropolitan
Magistrate by the common order has dismissed all these applications.
18. The submission of learned counsel for the petitioner is that the
impugned common order dated 02.06.2016 is patently laconic. Firstly, the
learned Metropolitan Magistrate has failed to appreciate that its common
order dated 30.08.2014 directing return of the complaints for them being
filed before the Court having territorial jurisdiction (as understood in the
light of the judgment in Dashrath Rupsingh Rathod (supra)), was stayed,
TR.P.(CRL.) Nos. 37-64/2016 Page 8 of 22
firstly, by the High Court, and thereafter, by the Supreme Court. Since the
stay was operating, the petitioner could not have, and was not obliged to
collect the complaints and to re-file the same before the learned Magistrate
at Raigarh, Chhattisgarh till the issues raised by the petitioner had been
finally decided. The non-compliance of the order dated 30.08.2014 could
not have visited the petitioner with any adverse consequences.
19. Learned counsel for the petitioner further submits that a perusal of the
impugned order shows that the learned Magistrate has completely negated
the effect of the amendment introduced, firstly, by the Negotiable
Instruments (Amendment) Ordinance, 2015, and thereafter by the
Negotiable Instruments (Amendment) Act, 2015. The purport of the said
amendment was to neutralize the effect of the judgment rendered by the
Supreme Court in Dashrath Rupsingh Rathod (supra), and that too,
retrospectively.
20. Learned counsel for the petitioner further submits that the learned
Magistrate while passing the impugned common order dated 02.06.2016 has
taken a very narrow and hyper technical view, and thereby defeated the
cause of substantial justice. The submission of learned counsel for the
petitioner is that when substantial justice and technical considerations are
pitted against each other, the cause of substantial justice deserves to be
advanced. In support of the aforesaid submission, learned counsel for the
petitioner has placed reliance on DDA Vs. Saraswati Devi & Others, 141
(2007) DLT 484 (DB), and the decision of the Supreme Court in Union of
India Vs. Ajit Singh, Civil Appeal No.4465/2013 decided on 02.04.2013.
TR.P.(CRL.) Nos. 37-64/2016 Page 9 of 22
21. Learned counsel for the petitioner also places reliance on the decision
of this Court in Pankaj Garg Vs. State (Govt. of NCT of Delhi) & Another,
Crl.M.C. No.4239/2015 decided on 13.10.2015, wherein this Court has
considered the impact of the amendment carried out to the Negotiable
Instruments Act post the decision of the Supreme Court in Dashrath
Rupsingh Rathod (supra), as also the decision of the Supreme Court in
Bridgestone India Private Limited Vs. Inderpal Singh, (2016) 2 SCC 75,
wherein the Supreme Court has clearly held that the amendment to the
Negotiable Instruments Act by introduction of Section 142A, is
retrospective.
22. On the other hand, Mr. Pahwa, learned senior counsel for the
respondents submitted that the view taken by the learned Magistrate in the
impugned common order is correct and does not call for interference, since
the amendment to the Negotiable Instruments Act is in respect of "pending
cases" and it cannot be said that in the present cases complaints were
pending since they had been directed to be returned to the complainant vide
orders dated 30.08.2014 for being re-filed within thirty days before the
concerned Magistrate at Raigarh, Chhattisgarh. Thus, the learned
Magistrate was correct in observing that he had become functus officio after
having passed orders for return of the complaints as nothing was pending
before him when the petitioner's applications for transfer and revival of the
complaints in question were moved. Mr. Pahwa has sought to place reliance
on the decision in Dashrath Rupsingh Rathod (supra), and particularly
paragraph 22 thereof, which has been extracted above.
23. Mr. Siddharth Agarwal has also advanced his submissions on behalf
TR.P.(CRL.) Nos. 37-64/2016 Page 10 of 22
of the respondents. He submits that the applications were moved by the
petitioner - seeking revival and transfer of the complaints, highly belatedly.
The submission is that the SLPs of the petitioner were disposed of on
11.03.2016 as infructuous in view of the amendment carried out to the
Negotiable Instruments Act vide Negotiable Instruments (Amendment) Act,
2015. However, the applications for transfer were filed only on or about
03.05.2016, i.e. well beyond the period of thirty days.
24. Mr. Agarwal has submitted that even if this Court were to allow the
transfer applications moved by the petitioner, the issue of limitation should
be left open to be decided by the concerned Magistrate to whom the
complaints are transferred.
25. Having heard learned counsel for the parties, perused the impugned
common order dated 02.06.2016 and the aforesaid decisions relied upon by
the parties, I am of the view that the common impugned order is patently
laconic and cannot be sustained. I am also inclined to allow the prayer of
the petitioner for transfer of the said 30 complaints as sought by the
petitioner.
26. The orders dated 30.08.2014 passed by the learned Magistrate
directing return of the 37 complaints for their being re-filed before the
concerned Magistrate having jurisdiction at Raigarh, Chhattisgarh were not
accepted by the petitioner. The petitioner approached this Court to assail the
said orders, and the said orders were stayed by this Court. With a view to
save its complaints from being labeled as being barred by limitation - on
account of their not being filed within thirty days after replacing them with
TR.P.(CRL.) Nos. 37-64/2016 Page 11 of 22
certified copies, the petitioner apparently filed 7 of the returned complaints
before the competent Court at Raigarh, Chhattisgarh. However, the said
filing, in any event, would have to be treated as "without prejudice" since
the petitioner assailed the common order dated 30.08.2014 by filing 37
Criminal Miscellaneous (Main) petitions before this Court, including in
respect of the said 7 cases. Apparently, the petitioner was not returned the
original complaints in respect of the 30 cases in question by the time this
Court, while entertaining the petitioner's Criminal Miscellaneous (Main)
petitions, stayed the operation of the order dated 30.08.2014. The effect of
the stay of the common order dated 30.08.2014 by this Court at the instance
of the petitioner, obviously, was that the petitioner was not obliged to collect
the complaints after replacing the same with certified copies and to file the
same before the competent Court at Raigarh, Chhattisgarh. In fact, the
learned Magistrate was also bound by the said stay order and could not have
directed return of the complaints for being filed before the competent Court
at Raigarh, Chhattisgarh. Once stayed, the said order could not have been
given effect to. In Mulraj v. Murti Raghonathji Maharaj AIR 1967 SC
1386, the Supreme Court has held that when there is a stay granted by a
superior court of the proceedings before a subordinate court "it is bound to
obey it and if it does not, it acts illegally, and all proceedings taken after the
knowledge of the order would be a nullity.".
27. Thus, the status of the 30 complaints remained as they were prior to
the passing of the order dated 30.08.2014. The said stay order continued to
operate continuously till all the Criminal Miscellaneous (Main) petitions
were disposed of by this Court vide judgment dated 16.12.2014. Soon
TR.P.(CRL.) Nos. 37-64/2016 Page 12 of 22
thereafter, the petitioner preferred SLPs before the Supreme Court to assail
the common judgment dated 16.12.2014, and on 13.01.2015, the Supreme
Court stayed the operation of the common judgment in the Criminal
Miscellaneous (Main) petitions dated 16.12.2014. Thus, the stay order in
respect of the common order dated 30.08.2014 passed by the learned MM
(directing return of the complaints for being filed before the competent
Court at Raigarh, Chhattisgarh), was revived. The petitioner was, thus, once
again not obliged to comply with the order dated 30.08.2014 and take back
the complaints after replacing the same with certified copies for being re-
filed before the competent Court at Raigarh, Chhattisgarh. Non-compliance
of the order dated 30.08.2014 could not have visited the petitioner with any
adverse consequences.
28. As noticed above, while the SLPs were still pending and the stay
granted by the Supreme Court was still operating, the Negotiable
Instruments Act was amended, firstly, by Ordinance, and thereafter, by an
Amendment Act with the introduction of Section 142(2) and Section 142A.
29. In Pankaj Garg (supra), this Court considered the same arguments as
adopted by the learned Magistrate in the impugned common order and
advanced on behalf of the respondents by Mr.Pahwa and Mr.Agarwal. In
Pankaj Garg (supra), the learned Magistrate had passed an order on
16.01.2015 directing return of the complaints in view of the decision of the
Supreme Court in Dashrath Rupsingh Rathod (supra). The complainant
then preferred Criminal Revision Petition, which was allowed by the learned
Sessions Court in view of the Ordinance, whereby Section 142(2) was
inserted and new Section 142A was introduced in the Negotiable
TR.P.(CRL.) Nos. 37-64/2016 Page 13 of 22
Instruments Act vide notification dated 15.06.2015. The Sessions Court
allowed the revision on 03.07.2015. The accused then approach this Court
in a petition under Section 482 Cr.P.C. Before this Court, the submission
advanced by the accused was, firstly, that the amendment to the Negotiable
Instruments Act by the Ordinance dated 15.06.2015 was not retrospective,
and secondly, that the complaint was no longer pending before the Trial
Court since the Trial Court had directed return of the complaint vide order
dated 16.01.2015 and consigned the file to the Record Room. This Court
rejected the submissions of the petitioner/ accused/ Pankaj Garg by, inter
alia, observing that:
"7. ... ... ... it is not in dispute that order dated 16.01.2015
passed by learned Trial Court was in view of the decision of the
Apex Court in Dashrath Rupsingh Rathod (supra) and
thereafter, the amendment has been carried out by the
ordinance mentioned above. Therefore, the complaint case
remained at the same place where it was prior to the
amendment to the statute."
30. The Court further observed:
"9. As per above provision the cases which were transferred
for lack of territorial jurisdiction as the bank of the drawer was
not situated within the territorial jurisdiction of the Court
concerned have been directed to be returned and tried by the
same Court. It is clear from the order of learned MM dated
16.01.2015 that complaint case of respondent No.2 was
directed to be returned as the bank of the drawer/ petitioner
does not situate within the territorial jurisdiction of the court of
learned MM.
10. The amendment in question is applicable
retrospectively. The stage of the cases shall remain same as
was before the case of Dashrath Rupsingh Rathod (supra).
TR.P.(CRL.) Nos. 37-64/2016 Page 14 of 22
Therefore, keeping in view the above ordinance such
complaint cases which were returned to the complainant on
account of lack of territorial jurisdiction for the reason of
location of the bank of the accused / petitioner outside the
territorial jurisdiction of the Court are bound to be tried by
the said Court." (emphasis supplied)
31. The impact upon the legal position particularly by the Ordinance
promulgated, namely the Negotiable Instruments (Amendment) Ordinance,
2015 dated 15.06.2015 was considered by the Supreme Court in
Bridgestone India Private Limited (supra). In this case, the bank of the
drawer was situated at Chandigarh, and the payee deposited the cheque with
its bank at Indore. After issuance of the statutory notice, the payee/
complainant filed a complaint under Section 138 of the NI Act at Indore.
The accused/ drawer challenged the territorial jurisdiction of the Court to
entertain the complaint. That challenge was rejected by the Magistrate by
placing reliance on K. Bhaskaran Vs. Sankaran Vaidhyan Balan, (1999) 7
SCC 510.
32. The accused/ drawer then approached the High Court of Madhya
Pradesh at Indore Bench. The High Court remitted the case to the Judicial
Magistrate First Class, Indore requiring him to pass a fresh order. The
learned Judicial Magistrate First Class, Indore once again held that he had
the territorial jurisdiction to entertain the complaint. This decision was
again assailed before the High Court of Madhya Pradesh. This time, the
High Court vide judgment dated 05.05.2011 agreed with the accused/
drawer and held that the jurisdiction lay only before the Court within whose
jurisdiction the original drawee bank was located, namely at Chandigarh,
wherefrom the drawer/ accused had issued the cheque.
TR.P.(CRL.) Nos. 37-64/2016 Page 15 of 22
33. The complainant/ payee then approached the Supreme Court. The
appellant/ payee was confronted with the decision in Dashrath Rupsingh
Rathod (supra). However, by then, the Negotiable Instruments
(Amendment) Ordinance had been promulgated, which was deemed to have
come into effect from 15.06.2015. The Supreme Court noticed Sections 3 &
4 of the said Ordinance, whereby sub-Section 2 of Section 142 was
introduced and Section 142A was incorporated in the Negotiable
Instruments Act. The Supreme Court then proceeded to analyse the said
provisions as follows:
"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.
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 142-A 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 142-A. Likewise, any judgment,
decree, order or direction issued by a court would have no
TR.P.(CRL.) Nos. 37-64/2016 Page 16 of 22
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 case [Dashrath Rupsingh Rathod v. State of
Maharashtra, (2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 :
(2014) 3 SCC (Cri) 673] 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 142-A(1) to
the effect, that the judgment rendered by this Court
in Dashrath Rupsingh Rathod case [Dashrath Rupsingh
Rathod v. State of Maharashtra, (2014) 9 SCC 129 : (2014) 4
SCC (Civ) 676 : (2014) 3 SCC (Cri) 673], would not stand in
the way of the appellant, insofar as the territorial jurisdiction
for initiating proceedings emerging from the dishonour of the
cheque in the present case arises.
16. Since Cheque No. 1950, in the sum of Rs 26,958, drawn on
Union Bank of India, Chandigarh, dated 2-5-2006, was
presented for encashment at IDBI Bank, Indore, which
intimated its dishonour to the appellant on 4-8-2006, 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 142-A(1) gives retrospectivity to the provision.
TR.P.(CRL.) Nos. 37-64/2016 Page 17 of 22
17. 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 5-5-2011
[Inderpal Singh v. Bridgestone India (P) Ltd. Misc. Criminal
Case No. 2677 of 2010, order dated 5-5-2011 (MP)] , is set
aside. The parties are directed to appear before the Judicial
Magistrate, First Class, Indore, on 15-1-2016. 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." (emphasis supplied)
34. Thus, the Supreme Court very clearly held that Dashrath Rupsingh
Rathod (supra) would not non-suit the appellant/ complainant from
maintaining its complaint before the learned Judicial Magistrate First Class,
Indore in view of the amendment carried out by the Ordinance, which
matured into an Amendment Act. The Supreme Court also held the
amendment to be retrospective such that it went back in time even before
Dashrath Rupsingh Rathod (supra). The Supreme Court also passed
operative orders that in case the complaint filed by the appellant had been
returned, it shall be re-presented before the Judicial Magistrate First Class,
Indore, Madhya Pradesh.
35. In the present cases, the 30 complaints with which I am presently
concerned, had not been returned to the complainant in compliance of the
order dated 30.08.2014. That order was stayed before the complaints were
returned. Even if they had been returned, the same would have made no
difference, since the operation of the initial order dated 30.08.2014 directing
return of the complaints for their being filed before the competent Court at
Raigarh, Chhattisgarh had been stayed, firstly, by the High Court and
TR.P.(CRL.) Nos. 37-64/2016 Page 18 of 22
thereafter, that stay was continued by the Supreme Court till the
promulgation of the Ordinance on 15.06.2015, and thereafter the amendment
to the Act was made. Thus, the complaints continued to lie before, and were
pending before the learned MM which passed the order dated 30.08.2014.
36. A perusal of the impugned order shows that in paragraph 6 thereof,
though learned Magistrate takes note of the fact that the order dated
30.08.2014 was challenged before this Court, the learned Magistrate has
conveniently ignored the fact that the stay of the operation of the order dated
30.08.2014 was operating thereon during the pendency of the Criminal
Miscellaneous (Main) petitions till they were dismissed on 16.12.2014.
37. Similarly, the learned Magistrate has also ignored the fact that the
common judgment of this Court dated 16.12.2014 had been stayed by the
Supreme Court on 13.01.2015 - thereby reviving the stay of the order dated
30.08.2014, and that stay continued till the promulgation of the Ordinance,
followed by Amendment of the Act.
38. The learned Magistrate also failed to appreciate that there was no
question of re-filing the 30 cases with which I am concerned, since the
complaints had not been returned to the petitioner and taken by the
petitioner in view of the intervening stay of the order dated 30.08.2014 by
this Court, which stay continued to operate thereon till the disposal of the
SLPs as infructuous vide order dated 11.03.2016.
39. So far as the other 7 cases are concerned, as noticed above, the
petitioner after collecting the complaints, had filed the same before the
competent Court at Raigarh, Chhattisgarh. Even in respect of those
TR.P.(CRL.) Nos. 37-64/2016 Page 19 of 22
complaints, the Supreme Court while passing the interim order dated
13.01.2015, permitted the petitioner to re-file the said complaints with the
Magistrate, and in consequence thereof, the said 7 complaints apparently
were re-filed by the petitioner before the Court of the learned MM, Patiala
House Courts.
40. I cannot appreciate the observation made by the learned Magistrate in
the impugned order accusing the petitioner of resorting to "forum shopping".
In the face of the retrospective amendment carried out to the Negotiable
Instruments Act, the complaints were correctly instituted at Delhi and the
petitioner had sought transfer of the complaints to the Court of the learned
MM, New Delhi District at Patiala House Courts, where the complaints
could be properly maintained. There was no occasion for the learned
Magistrate to make any such observation, since the petitioner has diligently
pursued its remedies, firstly, by approaching this Court to assail order dated
30.08.2014, and thereafter, the Supreme Court.
41. I do not find any merit in the submission of learned counsel for the
respondents that the complaints were not "pending" on account of the
passing of the order dated 30.08.2014. As noticed above, the said order had
been stayed, firstly, by this Court, and thereafter, by the Supreme Court.
Consequently, the complaints remained in the same position in which they
were, prior to the passing of the order dated 30.08.2014 at the time when the
Negotiable Instruments Ordinance was issued, which was then replaced by
the Amendment Act. The expression "... ... ... and such complaint is
pending in that Court ... ... ..." has to be understood in the light of the
purpose of the amendment carried out to the Act, whereby Section 142(2)
TR.P.(CRL.) Nos. 37-64/2016 Page 20 of 22
was inserted and Section 142(A) introduced. The purpose was to undo the
effect of Dashrath Rupsingh Rathod (supra). Thus, whether the complaint
is "pending" has to be understood as on the date when the orders were
passed by the learned Magistrate in pursuance of the direction contained in
para 22 of Dashrath Rupsingh Rathod (supra). Thus, there is absolutely no
merit in the submissions of learned counsel for the respondents that the
complaints were not pending when the amendment to the Act was carried
out retrospectively.
42. There is also no merit in the submission of learned counsel for the
respondents that the petitioner was obliged to "re-file" the 30 complaints.
Since the said 30 complaints had not been collected or taken back by the
complainant and they continued to remain pending on the file of the learned
MM, Saket Courts, New Delhi, there was no question of the same being "re-
filed" at any stage. For the aforesaid reasons, no issue of limitation can
possibly arise in these cases in relation to the so-called "re-filing" of the
complaints.
43. For all the aforesaid reasons, the impugned common order dated
02.06.2016 is set aside. In exercise of jurisdiction under Section 407
Cr.P.C., the complaints in question filed by the petitioner stand transferred
to the Court of the learned CMM for being assigned to the Court of the
competent MM having jurisdiction over PS - New Delhi District situated at
Patiala House Courts, New Delhi.
44. The parties shall appear before the learned CMM, New Delhi District,
Patiala House Courts on 22.02.2017.
TR.P.(CRL.) Nos. 37-64/2016 Page 21 of 22
45. The petitioner shall be entitled to costs quantified at Rs.5,000/- in
each of these petitions. The costs be paid within eight weeks.
46. A copy of this order be communicated to the learned CMM, South-
East District, Saket Courts, New Delhi, as well as to the learned CMM, New
Delhi District, Patiala House Courts, New Delhi, for compliance.
VIPIN SANGHI, J.
JANUARY 19, 2017 B.S. Rohella TR.P.(CRL.) Nos. 37-64/2016 Page 22 of 22