Himachal Pradesh High Court
Ravindra Thakur vs Sandeep Kumar on 9 March, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MMO No. 1262/2022
.
Decided on: 09.03.2023
Ravindra Thakur ...Petitioner
Versus
Sandeep Kumar ...Respondent
............................................................................................
Coram
Hon'ble Ms. Just ice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
For the petitioner :
For the respondent :
r to Mr. Neel Kamal Sharma, Advocate
with Ms. Shailza Kumari, Advocate.
None.
Jyotsna Rewal Dua, J.
Petitioner is the complainant in proceedings under Section 138 of the Negotiable Instruments Act. The complaint was initially presented by him before the Court of competent jurisdiction at Rohru District Shimla. In view of subsequent amendment of the Act, the complaint was transferred to the Court at Sarkaghat District Mandi. Vide order dated 1.12.2022, the Sarkaghat Court has held that it does not have jurisdiction to try the complaint and further directed the petitioner/complainant to file appropriate application before appropriate Court for transfer of the complaint. In this scenario, the petitioner has invoked jurisdiction under Section 482 read with Section 407 of Code of Criminal Procedure seeking transfer of his 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 10/03/2023 20:33:41 :::CIS 2complaint from Court of learned Judicial Magistrate First Class Court No.2 Sarkaghat District Mandi to the Court of learned Chief Judicial .
Magistrate Hamirpur.
2. As per office report, respondent stands duly served, however, no one has appeared on his behalf.
A perusal of the impugned order dated 1.12.2022 reflects that the respondent had not attended the proceedings before the learned Court below on 01.12.2022. Considering the nature of the order passed by the learned Court below on 01.12.2022 and in that background, the relief prayed for by the complainant/petitioner in the instant petition, no further steps are necessary for effecting compulsive service upon the respondent.
3. Facts 3(i) A complaint under Section 138 of the Negotiable Instruments Act (the Act hereinafter) was presented by the petitioner on 24.03.2015 in the Court of learned Additional Chief Judicial Magistrar Rohru, District Shimla. The complaint was presented in the said Court on the averred ground that the respondent-accused was permanent resident of village Dhara Post Office Pachunchh, Tehsil Rohru, District Shimla, and the cheque was issued by him in favour of complainant at Rohru, District Shimla. The presentation of complaint before the Court of learned Additional Chief Judicial Magistrar Rohru, was in view of the judgment passed by the Hon'ble Apex Court in ::: Downloaded on - 10/03/2023 20:33:41 :::CIS 3 (2014) 9 SCC 129 (Dashrath Rupsingh Rathod Vs. State of Maharashtra & Another) wherein the territorial jurisdiction for filing of .
the complaint was restricted to the location, where the cheque was dishonoured i.e. cheque was returned unpaid by the bank on which it was drawn.
3(ii) The Negotiable Instruments (Amendment) Act 2015, came into force w.e.f. 15.06.2015. By this amendment, verdict in Dashrath Rupsingh Rathod's case was legislatively overturned.
[Refer (2021) 6 SCC 258 (P. Mohanraj & Ors. Vs Shah Brothers Ispat Private Limited)].
3(iii) Section 142 of the Act was amended by insertion of following sub-section 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 purpose 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."
::: Downloaded on - 10/03/2023 20:33:41 :::CIS 4In (2016) 2 SCC 75 (Bridgestone India Private Limited Vs. Inderpal Singh), the Hon'ble Apex Court endorsed that .
under the provisions of Section 142(2) of the Act, 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.
3(iv) In view of amendment of the Act, the complaint preferred by the petitioner was transferred by the Court of learned Additional Chief Judicial Magistrate Rohru, District Shimla, vide order dated 07.01.2016 to the Court of learned Judicial Magistrate First Class No.2. Sarkaghat, District Mandi. The complaint was transferred on the ground that complainant's house was situated within the territorial jurisdiction of Court of Sarkaghat and he maintains his bank account under the territorial jurisdiction of the Sarkaghat Court.
3(v) Learned Judicial Magistrate First Class, Court No.2 Sarkaghat, considered the complaint and observed that the complainant had presented the cheque in question for payment in Punjab National Bank at Jahu, District Hamirpur. Accordingly, vide order dated 01.12.2022, learned Judicial Magistrate First Class, Court No.2 Sarkaghat, held that it did not have territorial jurisdiction to try the complaint. Complainant was accordingly, directed to file ::: Downloaded on - 10/03/2023 20:33:41 :::CIS 5 appropriate application before appropriate Court for transfer of the complaint.
.
4. In the above legal & factual matrix, petitioner is before this Court seeking transfer of his complaint to the Court of learned Chief Judicial Magistrate, Hamirpur, District Hamirpur.
5. Observations 5(i) Paragraph-6 of the complaint mentions that the cheque issued by the respondent-accused was presented by the petitioner-
complainant for encashment with his banker at Punjab National Bank Branch Jahu, District Hamirpur. Therefore, in view of Section 142(2)
(a) of the Act and in light of pronouncement of Hon'ble Apex Court in (2016) 2 SCC 75 (Bridgestone India Private Limited Vs. Inderpal Singh), learned JMFC Court No.2 Sarkaghat was justified in holding that it did not have the territorial jurisdiction to proceed in the matter.
It is an admitted position that the cheque was presented by the petitioner at Punjab National Bank Branch Jahu, District Hamirpur.
After amendment of the Act, the jurisdiction to try the complaint vested with the court of competent jurisdiction in District Hamirpur.
5(ii) The petitioner has moved this petition under Section 482 read with Section 407 of the Code of Criminal Procedure for transferring his complaint No.138 NIA/20-III/2016 titled Ravindra Thakur Vs. Sandeep Kumar from the Court of learned JMFC, Court No.2 Sarkaghat District Mandi to the Court of learned CJM Hamirpur ::: Downloaded on - 10/03/2023 20:33:41 :::CIS 6 District Hamirpur. Hon'ble Apex Court while deciding Transfer Petition (Criminal) Nos.526-527/2022 (Yogesh Upadhyay & Anr.
.
Atlanta Limited) vide judgment dated 21.02.2023, considered the non-obstante clause in Section 142(1) of the Act viz-a-viz Section 406 Cr.P.C. pertaining to powers of the Hon'ble Supreme Court to transfer the cases and appeals. It was held that the non-obstante clause in Section 142 of the Act has to be read and understood in the context and for the purpose, it is used and it does not lend itself to the interpretation that Section 406 Cr.P.C. would stand excluded viz-a-viz offences under Section 138 of the Act. That the power of the Court to transfer pending criminal proceedings under Section 406 Cr.P.C. does not stand abrogated thereby in respect of offences under Section 138 of the Act. It was held that notwithstanding the non-obstante clause in Section 142(1) of the Act, the power of the Court to transfer criminal cases under Section 406 Cr.P.C. remains intact in relation to offences under Section 138 of the Act, if it is found expedient for the ends of justice. Relevant paragraph of the judgment reads as under:-
"13. Therefore, institution of the first two complaint cases before the Courts at Nagpur is in keeping with the legal position obtaining now. However, the contention that the non obstante clause in Section 142(1) of the Act of 1881 would override Section 406 Cr.P.C. and that it would not be permissible for this Court to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. It may be noted that the non obstante ::: Downloaded on - 10/03/2023 20:33:41 :::CIS 7 clause was there in the original Section 142 itself and was not introduced by way of the amendments in the year 2015, along with Section 142(2). The said clause merely has reference to the .
manner in which cognizance is to be taken in offences under Section 138 of the Act of 1881, as a departure has to be made from the usual procedure inasmuch as prosecution for the said offence stands postponed despite commission of the offence being complete upon dishonour of the cheque and it must necessarily be in terms of the procedure prescribed. The clause, therefore, has to be read and understood in the context and for the purpose it is used and it does not lend itself to the interpretation that Section 406 Cr.P.C. would stand excluded vis-à-vis offences under Section 138 of the Act of 1881. The power of this Court to transfer pending criminal proceedings under Section 406 Cr.P.C.
does not stand abrogated thereby in respect of offences under Section 138 of the Act of 1881. It may be noted that this Court exercised power under Section 406 Cr.P.C. in relation to offences under Section 138 of the Act of 1881 even during the time the original Section 142 held the field. In A.E. Premanand Vs. Escorts Finance Ltd. & Others [(2004) 13 SCC 527], this Court took note of the fact that the offences therein, under Section 138 of the Act of 1881, had arisen out of one single transaction and found it appropriate and in the interest of justice that all such cases should be tried in one Court. We, therefore, hold that, notwithstanding the non obstante clause in Section 142(1) of the Act of 1881, the power of this Court to transfer criminal cases under Section 406 Cr.P.C. remains intact in relation to offences under Section 138 of the Act of 1881, if it is found expedient for the ends of justice."
In the instant case, petitioner-complainant has invoked the jurisdiction under Section 482 read with Section 407 of the Code of Criminal Procedure. In terms of Section 407 Cr.P.C., this Court can exercise the jurisdiction for transferring the cases. In view of ::: Downloaded on - 10/03/2023 20:33:41 :::CIS 8 amendment of Section 142 of the Act after the institution of the complaint by the petitioner, it would be necessary and expedient to .
meet the ends of justice by ordering transfer of the complaint from the Court of learned JMFC, Court No.2 Sarkaghat District Mandi to the Court of learned CJM Hamirpur District Hamirpur. The order in question passed on 01.12.2022 by the learned JMFC Court No.2 Sarkaghat itself shows that the complaint was transferred from the Court of learned ACJM, Rohru, in view of the aforementioned amendment of Act but instead of being transferred to the Court of competent jurisdiction in district Hamirpur, it was somehow transferred to the Court of learned JMFC Court No.2 Sarkaghat, which lacks the territorial jurisdiction to try the complaint.
For the aforesaid reasons, present petition is allowed.
Complaint No.138 NIA/20-III/2016 titled Ravindra Thakur Vs. Sandeep Kumar filed by the petitioner is ordered to be transferred from the Court of learned Judicial Magistrate First Class, Court No.2 Sarkaghat to the Court of learned Chief Judicial Magistrate, District Hamirpur. The original record of the complaint pending before the Court of JMFC Court No.2 Sarkaghat, District Mandi is ordered to be transferred to the Court of learned CJM Hamirpur. This exercise be completed within four weeks from today. The Court of learned Judicial Magistrate First Class (Court No.2) Sarkaghat District Mandi to intimate the respondent/accused about passing of this order and ::: Downloaded on - 10/03/2023 20:33:41 :::CIS 9 transfer of the complaint. Upon transfer of the complaint to the Court of learned Chief Judicial Magistrate, District Hamirpur, fresh notice .
to the parties be issued, in accordance with law, for their appearance in the complaint. The Registry is directed to send a copy of this order to the Court of learned Judicial Magistrate First Class Court No.2 Sakaghat, District Mandi & Court of learned Chief Judicial Magistrate Hamirpur, District Hamirpur, for compliance and further necessary action.
The petition stands disposed of in the above terms, so also the pending application(s), if any.
Jyotsna Rewal Dua Judge 09th March 2023 (Rohit) ::: Downloaded on - 10/03/2023 20:33:41 :::CIS