Vinod Kumar vs State Of U.P. And Another
2023 Latest Caselaw 2147 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- APPLICATION U/S 482 No. - 713 of 2023
 

 
Applicant :- Vinod Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Kuldeep Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Sri Kuldeep Kumar, learned counsel for the applicant and Sri Ghanshyam Kumar, learned AGA for the State, perused the record.

The instant criminal application under Section 482 Cr.P.c. is being filed while exploiting the plenary powers of this Court under Section 482 Cr.P.C. challenging the order of Civil Judge (JD)/Judicial Magistrate, FTC, Court No.3, Bulandshahar dated 16.12.2022 in criminal complaint case no. 1151 of 2018 (Vinod Kumar Vs. Sunita Singh), under Sections 138 N.I.Act, P.S. Kotwali Nagar, District Bulandshahar by which the learned Civil Judge (JD)/Judicial Magistrate, FTC, Court No.3, Bulandshahar have allowed the application 65B(1) instituted by accused Sunita Singh, whereby it as prayed by the accused that the complaint case may be rejected for want of jurisdiction, keeping in view the provisions of Section 142(2) read with Section 142(A) of the N.I.Act as amended from time to time.

I have perused the order dated 16.12.2022 by which learned court concerned have allowed the application no. 65B(1) moved by the accused/opposite party no.2 Sunita Singh.

Before coming to the merit of the case, it is desirable to give a bare skeleton facts, which has given rise to the present application:-

(i) Way back in the year 2013, a complaint was moved by Vinod Kumar, the applicant against Sunita Singh of Bulandshahar under Section 138 N.I.Act with the allegation that accused respondent no.2 is running business in the name and style of M/s DSM Infracon Pvt. Ltd.. The accused opposite party no.2 requested the complainant to invest the money in his business and accused/opposite party no.2 assures to the complainant Vinod Kumar to give the profit to the complainant as per his share. The accused/opposite party no.2 and complainant Vinod Kumar invested huge amount for the development of the business of sale and purchase of property with the aforesaid company and agreed by the terms that profit and loss would equally be divided between them in the said business. After earning huge profit, the accused/opposite party no.2 were issued cheque, bearing Cheque No. 138259 dated 06.03.2013 of Rs. Two Crores drawn on Punjab National Bank, Civil Lines, Bulandshahar in favour complainant Vinod Kumar at his residence Mayur Vihar in lieu of the share of the complainant's profit in the said business.

(ii) The complainant/application deposited the aforesaid cheques with his bankers in Indian Overseas Bank, Gol Market, New Delhi for encashment, but received an information that all the cheques have been returned back unpaid and dishonoured vide memo dated 14.05.2013 with the remark "Account Blocked". After dishonouring d the cheques, the complainant demanded his cheques amount but accused/opposite party no.2 refused to pay the said amount to the complainant/applicant and therefore the accused/opposite party no.2 has committed an offence under Section 138 N.I. Act and Under Section 420 and 406 IPC.

(iii) After receiving the cheques and the memo of the bank, a legal notice was given on 24.05.2013 through registered post to the accused/opposite party no.2 on 31.05.2013 on the aforesaid address of the accused/opposite party no.2 and the said notice was duly served upon accused/opposite party no.2 but he did not pay the cheques amount and therefore after completing the necessary and mandatory formalities, a proceeding under Section 138 N.I.Act was initiated by Vinod Kumar against Sunita Singh in the year 2013 before the court of Chief Metropolitan Magistrate, Patiyala House, New Delhi.

(iv) Thereafter in the light of the judgment of Hon'ble Apex Court in the case of Dashrath Rup Singh Rathod Vs. State of Maharashtra and another reported in (2014) 9 SCC 129, the applicant was asked to file fresh proceeding before the competent court at Bulandshahar and was duly entertained by the court concerned.

Meanwhile, in the light of the aforesaid judgmenet of Hon'ble Apex Court, Ministry of Law and Justice, Govt. of India, Legislative Division on 15.06.2015 have inserted Section 142(2) in the aforesaid Act as Act No. 26 of 2015 w.r.e.f. 15.06.2015, which is quoted herein below:-

"142(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.

Explanation:- For the purpose of clause (a), where a cheque is delivered for collection at any 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."

In addition to this Section 142(A) of the Act was also added on the same day i.e. 15.06.2015, which read thus:-

"142A. Validation for transfer of pending case.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgement, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015), shall be deemed to have transferred under this Act, as if that sub-section had been in force at all material times."

In the light of the aforesaid amendment, the accused/opposite party no.2 has moved an application dated 22.11.2022 in the pending complaint no. 990 of 2020 (Vinod Kumar Vs. Sunita Singh) bearing application no. 65B(1) which was eventually allowed by the Civil Judge (JD)/Judicial Magistrate, FTC, Court No.3, Bulandshahar with a direction that complainant may file a fresh petition before the court of competent jurisdiction.

Learned counsel for the applicant submits that the order sheet indicates that entire proceeding at the verge of completion and now this trick has been played by the accused/opposite party no.2 just to delay the process and harass the applicant who Rs. 5 Crores is stuck with accused/opposite party no.2. Learned counsel for the applicant has shown the compromise deed way back on 10.02.2013 which is annexed as Annexure-1 to the application signed by contesting parties. It is further contended by the counsel that the accused/opposite party no.2 is not adhering the alleged compromise deed and he is trying to play trick and game with the applicant, so that he may be harassed to the optimum and he should oscillate from this court to another.

Admittedly, initially an application has moved before Chief Metropolitan Magistrate, Patiyala House, New Delhi in the year 2013, thereafter in the light of the judgement of Dashrath Rup Singh Rathod (supra) it was directed to file fresh petition before the court of competent jurisdiction at Bulandshahar from where the cheques were issued by the accused/opposite party no.2 and now again it was directed to file petition before the court of competent jurisdiction at New Delhi.

This could not be motive and intention of legislation to harass the applicant/drawer to its optimum in the light of provision of Section 142(A) of the said Act. There is specific averment that "all cases transferred to the court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015), shall be deemed to have transferred under this Act, as if that sub-section had been in force at all material times".

From this Section 142A(1) of the Act, it is clear that this case has to be transferred from Civil Judge (JD)/Judicial Magistrate, FTC, Court No.3, Bulandshahar to Chief Metropolitan Magistrate, Patiyala House, New Delhi and it should not be construed that the applicant is being asked to file fresh petition before the concerned court at New Delhi. It goes without saying that matter should be transferred to other court of competent jurisdiction and recipient court shall start/proceed from that stage of proceeding where it was left by the earlier court.

Under these circumstances, the order passed by Civil Judge (JD)/Judicial Magistrate, FTC, Court No.3, Bulandshahar dated 16.12.2022 is hereby quashed and the court concerned is directed to "transfer" the case to the court of competent jurisdiction i.e. Chief Metropolitan Magistrate, Patiyala House, New Delhi within 15 days from today.

The Chief Metropolitan Magistrate, Patiyala House, New Delhi is expected to conclude the hearing of the case from the stage, which is left by Civil Judge (JD)/Judicial Magistrate, FTC, Court No.3, Bulandshahar onwards and conclude the same within next four months.

With this observation, the present 482 application stands disposed of.

Order Date :- 20.1.2023

Abhishek Sri.