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TMI Blog2018 (4) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... ation seeking revival / restoration of the complaint, was taken up on 08.10.2015. It is apparent that in terms of the provisions of Section 142A(1), the amended provisions of Section 142(2) of the NI Act, 1881 thereof are deemed to have been in play and operation at all times and give retrospective applicability to Section 142(2) of the The Negotiable Instruments Act, 1881 The jurisdiction lay only with the branch of the bank where the payee or holder in due course maintained his / its account, and the Court there alone would have jurisdiction, qua the complaint for an offence punishable under Section 138 of The Negotiable Instruments Act, 1881 which can be inquired into or tried - in the instant case as the bank of payee i.e. the complainant is the HDFC Bank Ltd., situated at Kalkaji, New Delhi, the Court having jurisdiction to try the offences punishable under Section 138 of The Negotiable Instruments Act, 1881 is situated in the area of the South East District, Delhi. The Court of MM having jurisdiction to try cases under Section 138 of The Negotiable Instruments Act, 1881 of the South East, Saket has jurisdiction to proceed with the Complaint Case no. 157/1/12 - compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The averments put forth through the complaint in question instituted on 29.09.2012 by the petitioner herein were to the effect that the petitioner is a limited company, which was engaged in the business of manufacturing, sale of machines pertaining to construction and earthmoving under the brand name of LiuGong and which company also provides product support services qua the said machines; that the accused persons arrayed therein as the respondents no. 2 to 4 (and arrayed to the present petition initially as the respondents no. 2 to 5) are stated to have placed orders for supply of machines with the complainant company i.e. the petitioner for supply of the same at the desired destination as per requirement from time to time and towards payments of outstanding dues stated against the material supplied to them and cheque bearing no. 015292 dated 30.01.2012 and cheque bearing no. 015293 dated 20.02.2012, i.e. two cheques both amounting to ₹ 25,00,000/- each drawn on the Bank of Baroda, Basant Lok, New Delhi in favour of the complainant s company signed by the accused no. 2 i.e. the respondent no. 3 herein on behalf of the accused no. 1 i.e. the respondent no. 2 herein were issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 14.05.2015 of the learned MM concerned but the District Courts were closed on 09.06.2015 for the summer vacation and in the meanwhile the Government of India through the President of India, promulgated The Negotiable Instruments (Amendment) Act, 2015 dated 15.06.2015 wherein it was specified under clause 3(2) to the effect 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 wehre the payee or holder in due course, as the case may, maintains the account, is situated and it was thus submitted on behalf of the petitioner that in terms of Section 142A(1) of the The Negotiable Instruments Act, 1881 notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree order or directions of any Court, all cases arising out of the 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 were to be transferred to the Court having jurisdiction under Sub-Section (2) of Section 142 as if that sub-section had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. (ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138. (iii) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if (a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue. (b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and (c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice. (iv) The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. (v) The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction for cheques dishonoured in the same transaction and at the same place. This procedure is more often than not intended to use such oppressive litigation to achieve the collateral purpose of extracting money from the accused by denying him a fair opportunity to contest the claim by dragging him to a distant place. Bhaskaran s case could never have intended to give to the complainant/payee of the cheque such an advantage. Even so, experience has shown that the view taken in Bhaskaran s case permitting prosecution at any one of the five different places indicated therein has failed not only to meet the approval of other benches dealing with the question but also resulted in hardship, harassment and inconvenience to the accused persons. While anyone issuing a cheque is and ought to be made responsible if the same is dishonoured despite compliance with the provisions stipulated in the proviso, the Court ought to avoid an interpretation that can be used as an instrument of oppression by one of the parties. The unilateral acts of a complainant in presenting a cheque at a place of his choice or issuing a notice for payment of the dishonoured amount cannot in our view arm the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments(Amendment) Act, 2015, 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 sub-section had been in force at all material time 14. Thus in terms of the amendment to The Negotiable Instruments Act, 1881, jurisdiction in relation to an offence punishable under Section 138 of The Negotiable Instruments Act, 1881 lay only with the branch of the bank where the payee of the holder in due course maintained his / its account which in the instant case was the HDFC Bank Ltd., Kalkaji, New Delhi i.e. the bank of the petitioner herein i.e. the complainant of the CC no. 157/1/12 and thus the jurisdiction lay with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential to observe that the amendments made in The Negotiable Instruments Act, 1881 vide the ordinance dated 15.06.2015 are retrospectively applicable as in terms of The Negotiable Instruments (Amendment) Act, 2015 dated 15.06.2015 which was re-promulgated on 22.09.2015 and brought into The Negotiable Instruments Act, 1881 by The Negotiable Instruments (Amendment) Act, 2015 with retrospective application and Section 142A brought into play by the said amendment dated 15.06.2015 subsequently laid down that notwithstanding anything contained in the Code of Criminal Procedure, 1973 or judgment, decree, order or direction of any Court, all cases transferred to the Court having jurisdiction vide sub-section (2) of Section 142 of the amendment Act as amended vide The Negotiable Instruments (Amendment) Ordinance, 2015 would be deemed to have been transferred under the Act as if that sub-section had been in force all material times. Thus, it is apparent that in terms of the provisions of Section 142A(1), the amended provisions of Section 142(2) of the NI Act, 1881 thereof are deemed to have been in play and operation at all times and give retrospective applicability to Section 142(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Ordinance, as if that subsection had been in force at all material times. (2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1), and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod's case, 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 present case arises. 13. Since cheque No.1950, in the sum of ₹ 26,958/-, drawn on the Union Bank of India, Chandigarh, dated 02.05.2006, was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the appellant on 04.08.2006, we are of the view that the Judicial Magistrate, First Class, Indore, 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. The words ...as if that sub-section had been in force at all material times... used with referen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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