Smt. Dilshad Begam vs State Of U.P. & Another
2017 Latest Caselaw 1594 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 52
 

 
Case :- TRANSFER APPLICATION (CRIMINAL) No. 194 of 2016
 
Applicant :- Smt. Dilshad Begam
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Santosh Kumar Mishra, C. P.  Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The instant application under Section 407 Cr.P.C. has been filed with prayer to transfer the Complaint Case No. 969 of 2015 (Smt. Dilshad Begam Vs. Mohammad Zia Atahar), under Section 138 of Negotiable Instruments Act, pending in the court of Additional Chief Judicial Magistrate - I, Jaunpur, to any other court of competent jurisdiction at Banda.

Heard learned counsel for the applicant and learned A.G.A. Perused the record.

Despite due service of notice as long back as on 22.8.2016, and ample time and opportunity, the opposite party no. 2 neither appeared nor filed counter affidavit.

Learned counsel for the applicant has submitted that in view of the amendment in Negotiable Instrument Act in the year 2015, now the court situated at Jaunpur has no jurisdiction, hence the case be transferred to district Banda.

Per contra learned A.G.A. has opposed the application by contending that the court at Jaunpur has the jurisdiction to try the aforesaid complaint case.

Considered the rival submissions advanced by learned counsel for the parties.

Some relevant facts, in brief, as per the affidavit filed in support of this transfer application, are that the applicant Smt. Dilshad Begum, who is a resident of District Banda, had lent the opposite party no. 2, Rs. 13 lacs in the month of October, 2010. In the year 2012 the marriage of the daughter of the applicant was fixed, therefore, she demanded her money back from the opposite party no. 2 who returned the money to the applicant by means of 3 cheques. All the cheques were drawn on various banks situated at district Jaunpur. However, when the applicant submitted those cheques to be credited to her bank account at Bank of Baroda, Banda City Branch, Banda, all the cheques were returned by the bank endorsing "funds insufficient". Thereafter, the applicant gave legal notice through her counsel which was deliberately returned by opposite party no. 2.

Aggrieved by the conduct of the opposite party no. 2, the applicant filed Complaint Case No. 29/IX/2013 before the A.C.J.M., Banda, which was dismissed on 5.1.2015 on the ground of lack of jurisdiction relying on the law laid down by Hon'ble Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra; AIR 2014 SC 3519, the copy of the order dated 5.1.2015 has been annexed as annexure - 1 to the affidavit. Thereafter, the applicant filed another Complaint Case No. 969 of 2015 before the A.C.J.M., Jaunpur on 3.2.2015 and learned Magistrate vide its order dated 20.2.2016 summoned the opposite party. Copy of the aforesaid complaint case and the summoning order passed there upon by the learned Magistrate has been annexed with the affidavit as annexures - 2 and 2-A respectively. However, the opposite party no. 2 did not appear before the Magistrate despite the issuance of non bailable warrant against him.

Learned counsel for the applicant has drawn the attention of this Court to the certified copy of the order-sheet of the aforesaid complaint case, which has been annexed as annexure - 3 to the affidavit showing that the aforesaid complaint case is pending for appearance of opposite party no. 2 and non bailable warrant has been issued against him.

Learned counsel has submitted that the applicant being an old lady aged about 63 years, with liability of 3 unmarried daughters, is not in a position to travel upto 560 kms. from Banda to Jaunpur on each and every date. Moreover, the opposite party no. 2 instead of appearing before the court despite issuance of coercive measures against him is continuously threatening her of dire consequences, regarding which the applicant has made a complaint before the learned Magistrate, Jaunpur, copy whereof has been filed as annexure - 5 to the affidavit. The submission of learned counsel for the applicant is that apart from the statutory bar, as per the Amending Act of 2015, the circumstances mentioned above also demand the transfer of the aforesaid complaint case from District Jaunpur to District Banda.

In so far as the territorial jurisdiction for trial of a case under Section 138 N.I. Act is concerned, in Dashrath Rupsingh Rathod's case (supra), a three judges bench of Hon'ble Apex Court, overruling its earlier judgment passed in K. Bhaskaran Vs. Sankaran Vaidhyan Balan; (1999) 7 SCC 510, laid down the ratio as follows :

"(i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned 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 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 cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant.

(vi) Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured.

(vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where 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 184of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Section 184 and 220 thereof."

It appears that the Legislature took notice of the difficulties experienced by the people at large and therefore thought it fit to introduce the amendment by way of Amending Act, 2015. Now Section 142(2) of N.I. Act provides as under :

"Amendment of Section 142 - In the principal Act, section 142 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub-section shall be inserted, namely:--

"(2) 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 of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) 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."

Before the amendment, the complainants had to face double jeopardy in as much as firstly, they could not recover the legitimate money and secondly in order to file a complaint, they had to suffer the agony and pain of going to the jurisdictional court of drawer of the cheque.

By the Amending Act of 2015, the law laid down by the Hon'ble Apex Court in Dashrath Rupsingh Rathod's case (supra) has been nullified and after this amendment a complaint shall be filed by the payee or holder in due course of a cheque in the court of such district where the bank in which his/her account exists is situated and not at the place where the drawer's bank is situated.

In a recent landmark judgment of Bridgstone India Pvt. Ltd. Vs. Inderpal Singh; 2016 (2) SCC 75; the Hon'ble Apex Court has held as under :-

"the judgment rendered by this Court in Dasrath Rupsingh Rathod v. State of Maharashtra and Anr., would not stand in the way of the Appellant, in so far as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises. Since the cheque drawn on the Union Bank of India, Chandigarh, was present for encashment at the IDBI Bank, Indore, which intimated its dishonor to the Appellant on 04.08.2006, the Court is 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.

In view of the above legal position, this transfer application deserves to be allowed. Before parting with the judgment it is necessary to mention that though I am going to allow this application without hearing the opposite party no. 2 but in wake of the clear statutory bar regarding maintainability of complaint case at Jaunpur District, even his appearance and counter affidavit would not have made any difference. Moreover the conduct of the opposite party no. 2 shows that he has already been successful in causing inordinate delay in disposal of the complaint case by avoiding to appear before the Magistrate's Court, despite issuance of even non bailable warrant against him. Considering the miserable condition of the applicant and the conduct of opposite party no. 2, it does not appear expedient in the interest of justice to keep this matter further pending.

In view of the aforesaid facts and circumstances and the jurisdictional bar, the transfer application is allowed and the Complaint Case No. 969 of 2015 (Smt. Dilshad Begam Vs. Mohammad Zia Atahar), under Section 138 of Negotiable Instruments Act, pending in the court of Additional Chief Judicial Magistrate - I, Jaunpur, is transferred to the court of competent jurisdiction at District Banda.

Order Date :- 5.6.2017

S.B.