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2017 (1) TMI 1341 - HC - Indian LawsComplaints pending when the amendment to the Act was carried out - Complaint under Section 138 of the Negotiable Instruments Act - non-suit the appellant/ complainant from maintaining its complaint before the learned Judicial Magistrate First Class - Held that - In the present cases, the 30 complaints 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 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. The learned Magistrate failed to appreciate that there was no question of re-filing the 30 cases with which we are 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. 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. No 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. 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. 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 refiled 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. 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.
Issues Involved:
1. Quashing of the common order dated 02.06.2016 by the learned MM. 2. Territorial jurisdiction of the Court to entertain complaints under Section 138 of the Negotiable Instruments Act. 3. Applicability of the Negotiable Instruments (Amendment) Act, 2015. 4. Status of the complaints during the stay of the order dated 30.08.2014. 5. Alleged forum shopping by the petitioner. 6. Determination of whether the complaints were "pending" during the amendment. Issue-Wise Detailed Analysis: 1. Quashing of the Common Order Dated 02.06.2016: The petitioner sought to quash the common order dated 02.06.2016, which dismissed their applications for transferring 30 complaints. The learned Magistrate held that the complaints were no longer pending after the order dated 30.08.2014 and that the Magistrate had become functus officio. The Court found the common impugned order to be patently laconic and inclined to allow the transfer of the complaints. 2. Territorial Jurisdiction of the Court: The Supreme Court's decision in Dashrath Rupsingh Rathod ruled that the offence under Section 138 of the NI Act is committed at the place where the cheque is dishonored. Consequently, the complaints were directed to be filed in the Court having territorial jurisdiction at Raigarh, Chhattisgarh. However, the Negotiable Instruments (Amendment) Act, 2015, amended the jurisdiction to include the place where the payee's bank is located, thus affecting the territorial jurisdiction. 3. Applicability of the Negotiable Instruments (Amendment) Act, 2015: The amendment was introduced to neutralize the effect of the Dashrath Rupsingh Rathod judgment retrospectively. The Court noted that the amendment was applicable to pending cases, and the complaints in question were deemed to be pending due to the stay orders from the High Court and the Supreme Court. 4. Status of the Complaints During the Stay of the Order Dated 30.08.2014: The stay orders from the High Court and the Supreme Court meant that the petitioner was not obliged to collect and re-file the complaints. The complaints remained pending as they were prior to the order dated 30.08.2014. The Court cited Mulraj v. Murti Raghonathji Maharaj, stating that any proceedings taken after the knowledge of the stay order would be a nullity. 5. Alleged Forum Shopping by the Petitioner: The learned Magistrate accused the petitioner of forum shopping. However, the Court found this observation unwarranted as the petitioner had diligently pursued their remedies through the proper legal channels, including approaching the High Court and the Supreme Court. 6. Determination of Whether the Complaints Were "Pending": The Court held that the complaints were pending as the stay orders prevented the execution of the order dated 30.08.2014. The amendment to the Negotiable Instruments Act was intended to undo the effect of the Dashrath Rupsingh Rathod judgment, and the complaints were considered pending in light of the amendment. Conclusion: The impugned common order dated 02.06.2016 was set aside. The complaints were transferred to the Court of the learned CMM for assignment to the competent MM at Patiala House Courts, New Delhi. The petitioner was awarded costs of ?5,000/- for each petition. The Court communicated the order to the relevant CMMs for compliance.
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