Jammu & Kashmir High Court - Srinagar Bench
Imtiyaz Ahmad Mir vs Ali Mohammad Mir on 27 May, 2016
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
561-A No.184/2015
Cr.MA No.01/2015
Date of order:27.05.2016
Imtiyaz Ahmad Mir
Vs.
Ali Mohammad Mir
Coram:
HON'BLE MR. JUSTICE MOHAMMAD YAQOOB MIR, JUDGE
APPEARING COUNSEL:-
For the Petitioner/Appellant(s): Mr. Ishtiyaq Ahmad Khan.
For the Respondent(s): Mr. Fayaz Ahmad Lone.
i) Whether approved for reporting
in Media/Press : YES
ii) Whether approved for reporting
in Journal/Digest : OPTIONAL
1. Petitioner allegedly has issued 12 bearer cheques in favour of the respondent. Out of 12 cheques, 8 cheques bearing Nos.25726566 to 25726572 and 2572658 have been presented for encashment to the J&K Bank Brach Dalgate Boulevard but returned unpaid along with memo dated 05.03.2014 with the reason "insufficient amount" in the account of the petitioner. Respondent had also presented 4 other cheques bearing Nos.17177416 to 1717419 for encashment in the said Branch but returned unpaid for the reasons that the account holder has insufficient amount in the account. The memo in this regard has been issued on 05.03.2014. 2
2. Admittedly, respondent had issued demand notice but amount was not paid by the petitioner, complaint was filed before the Court of Judicial Magistrate 1st Class, Pampore, on 19.05.2014 under Section 138 of the Negotiable Instruments Act. Taking cognizance, trial court has issued the process vide order dated 19.05.2014.
3. Parties have entered into a compromise, in support whereof, statements have been recorded. Based on the said compromise, trial court has passed order dated 02.05.2015 observing therein that the offence under Section 138 Negotiable Instruments Act is compoundable, therefore, complaint stand disposed of as compromised with an observation that in case accused will not abide by the compromise, the complainant shall be at liberty to file execution petition.
4. Amount was not paid, respondent has filed execution petition whereupon proceedings have been initiated thereon.
5. Petitioner by medium of this petition has sought quashment of the complaint, and both orders dated 19.05.2014, pursuant to which process was issued, and order dated 2nd May, 2015, pursuant to which complaint was disposed of.
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6. In the petition it is alleged that the compromise was entered into under duress. Same appears to be an afterthought. Petitioner perhaps intends to defeat the rights of the respondent. Once he has issued 12 cheques, thereafter has entered into compromise, it can hardly lie in his mouth that he has entered into compromise under duress. No reason is forthcoming as to why he has not paid the amount of cheques when, admittedly, he has issued the said cheques
7. Learned counsel for the petitioner tried to project that the complaint is hit by Section 234 Cr. P. C, which provides that the accused can be tried together for three offences committed in a year. 12 cheques means 12 occurrences, therefore, petitioner could not be tried together for all the offences.
8. The submission is totally misplaced because the respondent had presented eight cheques together regarding which one memo has been issued by the Bank and then another four cheques were presented for which another memo has been issued by the Bank. The cause accrues only when the memo is issued by the Bank to the effect that the cheques are returned due to "insufficient amount" in the account of the account holder (petitioner). Two memos have been issued which constitute two occurrences which have occurred with the issue of memo dated 05.03.2014.
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9. Learned counsel for the petitioner next tried to project that the Court of Judicial Magistrate, Pampore, had no jurisdiction to entertain the complaint, so cognizance taken and process issued is bad in view of the law laid down by the Hon'ble Apex Court, based on which ordinance has been issued amending Negotiable Instruments Act, which provides that in Section 142 of the Act, following sub-section shall be inserted:
"(2). The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated."
This amendment has come into force in the year 2015. The earlier pending complaint on the basis of earlier law providing for jurisdiction at different placed has been saved, as is clear from Section 142A, as inserted in the Act, which provides that "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 the Negotiable Instruments (Amendment) Act, 2015, shall be transferred to the Court having jurisdiction under sub-section (2) of Section 142". It is also to be made clear that the Hon'ble Apex Court in the judgment rendered in the case of "Dashrat Rupsingh Rathod Vs. State of Maharashtra and another (Criminal Appeal No.2287 of 2009) has held that "the territorial jurisdiction for dishonor of cheques is restricted to the court within whose local jurisdiction 5 the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn". It has been directed that "only in those cases where, post 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, proceeding to continue at that place".
10. In the instant case, complaint has been finally disposed of, that too on the basis of compromise, on 2nd May, 2015, therefore, Court of Judicial Magistrate 1st Class, Pampore, has, for stated reasons and law, validly exercised jurisdiction. Thus final order passed thereon is un-interferable.
11. Petition being without merit, as such, dismissed along with connected Cr.MP (Mohammad Yaqoob Mir) Judge Srinagar, 27.05.2016 "Mohammad Altaf"