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2019 (3) TMI 1943 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - rebuttal of evidence - territorial Jurisdiction - Whether the complaint ought to have been filed before the Hospet Court instead of Sandur Court as Sandur Court without territorial jurisdiction? - Whether the Courts below have committed an error in appreciating the evidence available on record and the same is perverse? - HELD THAT - Having read the proviso of amended Negotiable Instruments Act under Section 142(2) and also the explanation as well as Section 142-A regarding validation of transfer of pending cases it is clear that any judgment decree order or direction of any court all cases should be transferred to the Court having jurisdiction under sub-section (2) of Section 142. Further in Section 142-A it is specific that shall be deemed to have been transferred under this Act as if that sub-section had been in force at all material times. Having analyzed Section 142(2) and also the explanation and also Section 142-A and also the principles laid down in the judgment referred supra i.e. M/s. Bridgestone India Pvt. Ltd. vs. Inderpal Singh 2015 (12) TMI 777 - SUPREME COURT wherein the Apex Court has categorically held that the jurisdiction for initiating the proceedings for the offence under Section 138 of the N.I. Act inter-alia in the territorial jurisdiction of the Court where the cheque is delivered for collection that too through an account of the branch of the bank where the payee or holder in due course maintains an account - 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 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. The Apex Court comes to the conclusion that based on Section 142A to the effect that the judgment rendered by the Apex Court in Dashrath Rupsingh Rathod s case 2014 (8) TMI 417 - SUPREME COURT would not stand in the way of the appellant insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the said case. The Apex Court interpreting the proviso of Section 138 142A 142(2) and also Section 142(a) of N.I. Act comes to the conclusion that the Indore Court 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. In the case on hand the cheque was issued in 2007 and the same was presented in 2007 itself and the same was dishonored. The endorsement was given by the branch at Hospet of the complainant who presented the cheque in Hospet and case is filed before the Sandur Court. When such being the case the proviso of Amendment Act of 2015 aptly applicable to the case on hand - the contention of the respondent cannot be accepted and there is force in the contention of the counsel for revision petitioner to interfere with the order of the Court below and to set aside the judgment of conviction and confirmation - 1st question is affirmative - consideration of 2nd question does not arise in law. The impugned order passed by the lower Court as well as the First Appellate Court are hereby set aside - The revision petition is allowed.
Issues Involved:
1. Territorial jurisdiction of the court to entertain the complaint. 2. Appreciation of evidence by the lower courts. Issue-wise Detailed Analysis: 1. Territorial Jurisdiction of the Court: The main contention of the revision petitioner was that the cheque was dishonored at Hospet, but the complaint was filed at Sandur, which allegedly lacked territorial jurisdiction. The petitioner argued that the complaint should have been filed at Hospet, where the cheque was dishonored, citing the judgment in *M/s. Bridgestone India Pvt. Ltd. vs. Inderpal Singh* and the amendments to Section 142 of the Negotiable Instruments Act, 1881 (N.I. Act). The court noted that Section 142(2)(a), as amended by the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction in the court where the cheque is delivered for collection. The court also referred to Section 142A, which validates the transfer of pending cases to courts with proper jurisdiction, as if the amended provisions were in force at all material times. The court observed that the cheque in question was presented for encashment at Hospet, and thus, the jurisdiction lies with the court at Hospet. The court relied on the judgment in *M/s. Bridgestone India Pvt. Ltd. vs. Inderpal Singh*, which held that the court where the cheque is delivered for collection has the territorial jurisdiction. The court also considered the judgment in *Ultra Tech Cement Ltd. vs. Rakesh Kumar Singh and Others*, which stated that proceedings initiated before the judgment in *Dashrath Rupsingh Rathod's* case would not be dislodged if evidence had commenced before the amendment. However, the court concluded that the amendment to Section 142 and the new Section 142A, which came into force in 2015, apply retrospectively to all material times, thereby affecting the jurisdiction. 2. Appreciation of Evidence by the Lower Courts: The court examined whether the lower courts erred in appreciating the evidence on record. The lower courts had convicted the accused based on the evidence presented by the complainant, including the dishonored cheque and related documents. The accused did not provide any rebuttal evidence or reply to the legal notice issued by the complainant. The court found no dispute regarding the issuance of the cheque and the amount mentioned. Both the lower courts concluded that the accused failed to rebut the complainant's evidence and did not respond to the notice. The court affirmed that the lower courts correctly appreciated the evidence, and the accused's failure to contest the existence of a legally enforceable debt or liability was significant. Conclusion: The court allowed the revision petition, setting aside the judgments of conviction and sentence passed by the lower courts due to the lack of territorial jurisdiction. The court directed the parties to appear before the JMFC at Hospet on 01.04.2019 and instructed the lower court to return the complaint to be filed at Hospet. The court emphasized the need for a timely disposal of the matter, given the prolonged duration of the proceedings. Order: - The revision petition is allowed. - The impugned orders of the lower court and the First Appellate Court are set aside. - The parties are directed to appear before the JMFC at Hospet on 01.04.2019. - The lower court is instructed to return the complaint before the specified date. - The JMFC at Hospet is directed to dispose of the matter within three months from 01.04.2019. - The parties are to appear without expecting any notice from the court of Hospet and assist in the timely disposal of the case.
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