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TMI Blog2016 (4) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... banker. To restrain negotiability, addition of words 'Not Negotiable' or “Account Payee Only' is necessary. A crossed bearer cheque can be negotiated by delivery and crossed order cheque by endorsement and delivery. Crossing affords security and protection to the holder of the cheque. Thus, in view, the learned Metropolitan at Ahmedabad has the jurisdiction to try the case instituted by the complainant for the dishonour of the cheque. - CRIMINAL MISC.APPLICATION NO. 13062 of 2011 - - - Dated:- 30-3-2016 - MR. J.B.PARDIWALA, J. FOR THE APPLICANT : MR BIPIN I MEHTA, ADVOCATE, MR VICKY B MEHTA, ADVOCATE FOR THE RESPONDENT : MR GAURAV S MATHUR, ADVOCATE, PUBLIC PROSECUTOR CAV JUDGMENT By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants original accused persons seek to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No.8758 of 2009 filed in the Court of the learned Metropolitan Magistrate (Negotiable Instruments Act), Court No.7, Ahmedabad. They have also prayed to quash the order dated 3rd April 2010 passed below application Exh.3, by which the learned Magistrate r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate appearing for the applicants, vehemently submitted that when the entire transaction took place at Uttar Pradesh, the complaint could not have been filed by the complainant in Ahmedabad on the premise that it has its registered office at Ahmedabad. He submitted that no cause of action could be said to have arisen within the territorial limits of the learned Metropolitan Magistrate, Ahmedabad. In such circumstances, he prays that the order passed by the learned Magistrate below application Exh.3 be quashed and the complaint be returned to the complainant to be filed before the appropriate Court in the State of Uttar Pradesh. On the other hand, this application has been vehemently opposed by Mr.Gaurav Mathur, the learned counsel appearing for the respondent no.2 original complainant. Mr.Mathur invited my attention to the affidavit-in-reply filed on behalf of the complainant, inter alia, stating that : 3. The contents of paragraph nos.1 and 2 are formal in nature and do not warrant any comments. 4. With reference to the contents of paragraph nos. 3.1 to 3.6, I submit that the place at which the Petitioners are carrying on business is not relevant for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ld. Metropolitan Magistrate, Court No. 7 at Ahmedabad. 6. I, however, deny that the Answering Respondent is required to prove that the said cheque was issued in discharge of a legal liability, as alleged or at all. I submit that once a cheque is issued, it is presumed to be issued in discharge of a debt. The onus to prove to the contrary is on the issuer of the cheque. In any case, the Complainants have not denied the fact that they have purchased goods from the Answering Respondent and issued the subject cheque for payment of the price of goods. 7. With reference to the contents of Grounds (A) to (H), I deny that the impugned FIR is an abuse of the process or an attempt to harass the Petitioners, as alleged or at all. It is not open to the Petitioners, having not paid the price of goods, to allege harassment. I deny that the impugned complaint is unsustainable or that the Ld. Magistrate did not have jurisdiction to try the case, as alleged or at all. I deny that the Petitioners' place of residence or business or place of handing over the cheque is relevant for deciding the territorial jurisdiction for a complaint under Section 138 of the Act. The Petitioners hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to above, according to Mr.Mathur, since the intimation of the dishonour of the cheque was received by the complainant from the ICICI Bank Limited situated in Ahmedabad, the complaint is maintainable in the Court of the learned Metropolitan Magistrate, Ahmedabad. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Court of the learned Metropolitan Magistrate, Ahmedabad, has the territorial jurisdiction to try the offence of dishonour of cheque, punishable under Section 138 of the Act. This matter is of the year 2011. The same will have to be now considered keeping in mind the Negotiable Instruments (Amendment) Act, 2015. The President of India promulgated an Ordinance called, the Negotiable Instruments (Amendment) Ordinance, 2015 , on 15th June 2015, effecting certain amendments in the Negotiable Instruments Act, 1881. The jurisdiction to file complaints of dishonour of cheques has now been changed by virtue of the said Ordinance, superseding the judgment of the Supreme Court in the case of Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 purposes 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. By the said Ordinance, Section 142A was inserted in the Principal Act. Section 142A reads as follows: 142A.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or directions of any Court, 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) Ordinance, 2015 shall be transferred to the Court having jurisdiction under sub-section (2) of Section 142 as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in due course against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, the court shall transfer the case of the court having jurisdiction as per the new scheme of jurisdiction proposed under sub-section (2 ) of section 142; and (v) amending Explanation I under section 6 of the said Act which relates to the meaning of expression a cheque in the electronic form , as the said meaning is found to be deficient because it presumes drawing of a physical cheque, which is not the objective in preparing a cheque in the electronic form and therefore, inserting a new Explanation III in the said section giving reference of the expressions contained in the Information Technology Act, 2000. The (Amendment) Act, 2015, provides as under : 5. (1) The Negotiable Instruments (Amendment) Ordinance, 2015, is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of the principal Act, as amended by this Act. In view of the amendment, a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Court even though the cheques might have been presented in different banks at different places. Thirdly, all criminal complaints for dishonour of cheques pending as on 15th June 2015 in different Courts in India would be transferred to the Court which has the jurisdiction to try such case in the manner mentioned above, i.e. such pending cases will stand transferred to the Court having jurisdiction over the place where the bank of the payee is located. If there are multiple complaints of dishonour pending between the same parties as on 15th June 2015, then all such complaints would be transferred to the Court having jurisdiction to try the first case. To put it briefly, the (Amendment) Act takes care of the interest of the payee of the cheque while, at the same time, also takes care to see that the drawer of the multiple cheques is not harassed by filing different complaints at different locations to harass him (if more than one cheque is bounced). The (Amendment) Act virtually supersedes the decision of the Supreme Court in the case of Dashrath Rupsingh Rathod (supra). It is not in dispute that the accused is a resident of Badalapur, State of Uttar Pradesh. The cheque i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent that the learned JMFC, Indore, did not have the jurisdiction to entertain the proceedings initiated by the appellant was declined on 2nd June 2009. The respondent being dissatisfied with the order passed by the learned JMFC, Indore, preferred a petition under Section 482 of the Code in the High Court of Madhya Pradesh before its Indore Bench. The High Court remitted the case to the learned JMFC, Indore, directing him to pass a fresh order after taking into consideration some additional documents relied upon and the judgments. The learned JMFC, Indore, once again passed an order, holding that he had the territorial jurisdiction to adjudicate the controversy raised by the appellant under Section 138 of the Act. The matter again reached to the High Court and the High Court took the view that the jurisdiction lay only before the Court wherein the original drawee bank was located, namely, at Chandigarh. The appellant, being dissatisfied with the order passed by the High Court of Madhya Pradesh, approached the Supreme Court. The Supreme Court, while allowing the appeal of the appellant and set-asiding the order passed by the High Court of Madhya Pradesh, observed thus : [9] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof. In view of the decision rendered by this Court in Dashrath Rupsingh Rathod's case, it is apparent, that the impugned order dated 05.05.2011, passed by the High Court of Madhya Pradesh, Bench at Indore, was wholly justified. 10. In order to overcome the legal position declared by this Court in Dashrath Rupsingh Rathod's case, learned counsel for the appellant has drawn our attention to the Negotiable Instruments (Amendment) Second Ordinance, 2015 (hereinafter referred to as 'the Ordinance'). A perusal of Section 1(2) thereof reveals, that the Ordinance would be deemed to have come into force with effect from 15.06.2015. It is therefore pointed out to us, that the Negotiable Instruments (Amendment) Second Ordinance, 2015 is in force. Our attention was then invited to Section 3 thereof, whereby, the original Section 142 of the Negotiable Instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of this Ordinance, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that subsection had been in force at all material times. 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. 11. It is, however, imperative for the present controvers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torial 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 142A(1) gives retrospectivity to the provision. 14. 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 05.05.2011, is set aside. The parties are directed to appear before the Judicial Magistrate, First Class, Indore, on 15.01.2016. 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. Thus, the decision of the Supreme Court makes it clear that the offence under Section 138 of the Act can 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. Indis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon a particular thing which ordinarily would not appear clearly from the provisions of the section. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or subtract from it. Thus an explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the original section that it is supposed to explain.......... The Explanation must be interpreted according to its own tenor; that it is meant to explain and not vice versa . Bindra in 'Interpretation of Statutes' (5th Edn.) at page 67 states thus : An explanation does not enlarge the scope of the original section that it is supposed to explain. It is axiomatic that an explanation only explains and does not expand or add to the scope of the original section.... The purpose of an explanation is, however, not to limit the scope of the main provision.... The construction of the explanation must depend upon its terms, and no theory of its purpose can be entertained unless it is to be inferred from the language used. An 'explanation' must be interpreted according to its own tenor. The pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same. A deeming fiction is a supposition of law that the thing is true without inquiring whether it be so or not, that it may have the effect of truth so far as it is consistent with justice. A deeming provision is made to include what is obvious or what is uncertain or to impose, for the purpose of statute, an ordinary construction of a word or phrase that would not otherwise prevail but, in each case, it would be a separate question as to that what object the Legislature has made on such a deeming fiction. The word deemed is used in various senses. Sometimes, it means generally regarded. At other time, it signifies 'taken p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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