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TMI Blog2022 (4) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings therein has to be set aside. Petition allowed. - Crl. Petn. No. 24 of 2021 - - - Dated:- 5-4-2022 - Hon'ble Mr. Justice W. Diengdoh, Judge For the Petitioner/Appellant : Mr. K. C. Gautam, Adv. For the Respondent : Mr. N.M. Mansuri, Adv. JUDGMENT AND ORDER 1. The respondent has filed a complaint under section 138 of the Negotiable Instruments Act, 1881 before the Court of the Additional Deputy Commissioner (Judicial), Shillong for dishonour of a cheque dated 15.12.2017 to the tune of ₹ 11,30,000/- (Rupees eleven lakhs thirty thousand) only, allegedly issued by the petitioner herein to the respondent. The said cheque was drawn on the United Bank of India, Nongthymmai Branch. However, upon presentation of the same at the Meghalaya Cooperative Apex Bank, Shillong Branch by the payee, it was returned to the drawer due to insufficient fund. The said case was registered and numbered as C.R. Case No.1 (T) 2018. 2. On being endorsed, the learned Judicial Magistrate First Class, Shillong took cognizance of the complaint and vide order dated 05.03.2018, issued summons to the petitioner/accused. 3. The petitioner being aggrieved and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on over the area where the bank is situated, which bank the payee or holder maintains an account, can try an offence under Section 138 of the NI Act, 1881. 9. This provision was inserted by way of an amendment to the Negotiable Instruments Act vide the Amendment Act of 2015, which came into effect from 15.06.2015, primarily to ward off the difficulties created by the judgment of a three Judge Bench in the case of Dashrath Rupsingh Rathod v. State of Maharashtra Anr: AIR 2014, SC 3519, wherein the Hon'ble Supreme Court has held that the territorial jurisdiction for dishonor of cheques is restricted to the court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonored by the bank on which it is drawn. The fact that this judgment has been legislatively overruled by Section 142 (2) of the NI Act was noticed by the Hon'ble Supreme Court in the case of P. Mohanraj Ors v. Shah Brothers Ispat Pvt. Ltd: (2021) 6 SCC, 325 at paragraph 61 of the same, submits Mr. Gautam. 10. Finally, Mr. Gautam has submitted that in view of the fact that the said complaint was filed by the respondent/complainant before a court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court of the Additional Deputy Commissioner (Judicial), Shillong. It is however admitted that the complaint filed by the respondent is pending before one such court which has the jurisdiction to try the case, but lacks territorial jurisdiction on the ground that the complaint has been addressed to a wrong court for endorsement. 15. Mr. Mansuri has however submitted that the ratio of the authority rendered in the case of Dashrath Rupsingh Rathod (supra) particularly at paragraph 20 of the same would be applicable in the case of the respondent, inasmuch as, it has been held that the fate of cases pending in the court which lacks jurisdiction are divided into two categories, the first category being the cases were only summons has been issued and received by the accused person and in such cases, the complaint has to be returned to the complainant to be filed before the proper court and the second category is where evidence has started, such case shall continue in the same court and it shall be deemed to be transferred from the court ordinarily possessing territorial jurisdiction. In this context, the case of the respondent falls within the second category since evidence has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence, under the provision of Clause 3 of Section 25(3) of the Indian Contract Act, even after the expiry of the period of limitation, the claim could be revived. The respondent has cited about three judgments (noted above), on this point. 21. This Court however, would not be called upon to decide on this point since at the hearing, the learned counsel for the petitioner has decided not to press on the issue of the debt being time barred. 22. What remains to be decided is the controversy between the parties on the issue of jurisdiction of the court for proceedings initiated on a complaint under Section 138 of the Negotiable Instruments Act, 1881. The said Section provides as follows: - 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Dashrath Rupsingh Rathod at paragraph 20, the Hon'ble Supreme Court has held as under:- 20. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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