HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.9370 OF 2022
ORDER:
1. Petitioner is aggrieved by the order of the IX Additional Metropolitan Magistrate at Medchal in returning the complaint filed under section 138 NI Act giving reason of lack of jurisdiction vide SR No.6284 of 2021 dated 23.07.2022.
2. The complainant filed a private complaint before the IX Additional Metropolitan Magistrate for the offence under Section 138 of the Negotiable Instruments Act alleging that the respondent/accused borrowed an amount of Rs.3.00 lakhs and issued a cheque for Rs.1.00 lakh, which was drawn on SBI, Buchireddypalem, Nellore District. The said cheque was presented in the account of the complainant in SBI, Dhulapally branch, Kompally, Hyderabad and it was dishonoured on the same day due to 'insufficient funds'. Legal notice was issued and for the reason of not paying the said amount covered by the cheque, complaint was filed before the V Additional Judicial Magistrate of First Class, Nellore on 22.09.2021.
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3. 0n 04.12.2021, the said Court at Nellore returned the complaint stating that they have no territorial jurisdiction since neither the drawee bank nor the drawer bank were within the jurisdiction of the Court at Nellore District. Thereafter, the complaint was filed before the XXII Metropolitan Magistrate ( presently IX Additional Metropolitan Magistrate) at Medchal on 27.12.2021 as the collection Bank at Dhulapally is situated within the jurisdiction of that Court.
4. The said compliant was returned on 09.03.2022 and the same was resubmitted on 08.04.2022 relying on the decision of the Hon'ble Supreme Court in the case of Bridge Stone India Private Limited v. Inderpal Singh reported in (2016) 2 Supreme Court Cases 75. After resubmitting the said complaint, the same was returned on 09.03.2022 on the point of jurisdiction. Thereafter, complainant filed petition before the Principal District Judge at L.B.Nagar aggrieved by the action of the IX Additional Metropolitan Magistrate and the Court directed that the IX Additional Metropolitan Magistrate has to pass necessary orders on the resubmission made by the 3 complainant. Thereafter, the IX Additional Metropolitan Magistrate passed orders dated 23.07.2022 returning the complaint, which is the order impugned.
5. Learned counsel appearing for the petitioner would submit that under Section 142(2)(a) of the Negotiable Instruments Act, offence under Section 138 of the Act shall be enquired into and tried by the Court within whose jurisdiction the cheque is delivered for collection through an account of the branch of the Bank where the payee of the holder in due course as the case may be maintains the account, is situated. Explanation to Section 142(2)(a) is that where a cheque is delivered for collection at 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.
6. For the said reasons when the cheque was returned from Dhoolapally branch, the IX Additional Metropolitan Magistrate 4 at Medchal has the jurisdiction. Accordingly prayed to allow the petition.
7. IX Additional Metropolitan Magistrate has extracted para 13 of the judgment in Bridge Stone India Private Limited's case (supra) and found that the bank of the payee or the holder in due course where the drawee maintains the account would be the determination for jurisdiction. However the relevant para in Bridge Stone India Private Limited (supra) would be para 16, which is extracted hereunder:
"16.Since Cheque No.1950, in the sum of Rs.26,958, drawn on Union Bank of India, Chandigarh, dated 2-5-2006, was presented for encashment at IDBI, Indore, which intimated its dishonour to the appellant on 4-8-2006, 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 reference to Section 142(2), in Section 142-A(1) gives retrospectivity to the provision."
8. In the present case, the cheque was presented at SBI, Dhulapally branch and accordingly, the IX Metropolitan Magistrate within whose jurisdiction the payee Bank/ where cheque was presented is situated would have jurisdiction to take cognizance of the proceedings.
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9. Accordingly, the Criminal Petition is allowed setting aside the impugned order passed by the IX Additional Metropolitan Magistrate at Medchal dated 23.07.2022 and the said Court is directed to take cognizance and try the offence. Consequently, miscellaneous petitions, if any, shall stand closed.
_________________ K.SURENDER, J Date:10.03.2023 kvs 6 THE HON'BLE SRI JUSTICE K.SURENDER Crl.P.No.9370 of 2022 Dated: 10.03.2023 kvs