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TMI Blog2018 (9) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Metropolitan Magistrate (NI Act) in CC No.8667/2013, titled as National Agricultural Co-operative Marketing Federation of India Ltd. v. Roshan Lal Lalit Mohan , whereby the said case was transferred to Bhubaneswar, Orissa in view of Negotiable Instruments (Amendment) Ordinance, 2015 since the complainant/ Respondent No.2 National Agricultural Co-operative Marketing Federation of India Ltd. had its account at Indian Overseas Bank, Bhubaneswar, Orissa. 2. Briefly stated, complainant/ Respondent No. 2 was engaged in the marketing of agricultural produce and financial activities. Petitioner No.1, a proprietorship firm, had approached the complainant/ Respondent No. 2 for financial assistance. Petitioner entered into a Memorandum of Understanding with complainant/ Respondent No.2 vide agreement dated 5th July, 2004 for availing financial assistance for various items like dry fruits, oil and cake, kirana items, herbs, food grain, edible oil etc and had taken a total advance of ₹59.72 crores on different dates by cheques from the complainant. 3. Petitioner had purchased kirana items, dry fruits and spices for a total value of ₹41.71 crores and the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aneshwar, Orissa is directed to be transferred to the Court of Chief Metropolitan Magistrate, New Delhi. 8. Vide order dated 15th October, 2015, the learned Metropolitan Magistrate again transferred the matter back to Bhubaneswar, Orissa in view of Negotiable Instruments (Amendment) Ordinance, 2015, hence the present petition. 9. The petitioner had also filed an application for recalling of the order dated 15th October, 2015 which was dismissed by the learned Metropolitan Magistrate (NI Act)- Central -01/THC/Delhi vide order 13th January, 2016 with the following observation:- 6. Though attractive at first blush, the argument of the complainant falls apart on a closer scrutiny of the Amendment Ordinance of 2015, especially - Section 142A of the New Act, which reads as under :- 142A (1) 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 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 juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r courts would still be competent to direct such transfer in appropriate cases so long as such courts are satisfied that denial of such a transfer would result in violation of the right to access to justice to a litigant in a given fact situation. 42. Now if access to justice is a facet of the right to life guaranteed under Article 21 of the Constitution, a violation, actual or threatened, of that right would justify the invocation of this Court's powers under Article 32 of the Constitution. Exercise of the power vested in the Court under that Article could take the form of a direction for transfer of a case from one court to the other to meet situations where the statutory provisions do not provide for such transfers. Any such exercise would be legitimate, as it would prevent the violation of the fundamental right of the citizens guaranteed under Article 21 of the Constitution. 43. That apart from Article 32 even Article 142 of the Constitution can be invoked to direct transfer of a case from one court to the other, is also settled by a Constitution Bench decision of this Court in Union Carbide Corpn. v. Union of India[Union Carbide Corpn. v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers-limited in some appropriate way-is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of complete justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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