Allahabad High Court
Indraveer Singh And Another vs State Of U.P. And Another on 27 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Neutral Citation No. - 2024:AHC:95747
Court No. - 92
Case :-APPLICATION U/S 482 No. - 8779 of 2024
Applicant :- Indraveer Singh And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Gautam,Mohd. Shamim,Nafees Ahmad
Counsel for Opposite Party :- Ajay Sengar,G.A.
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Mohd. Shamim, learned counsel for the applicants, Sri Ajay Sengar, learned counsel for opposite party no.2 and Sri Uday Bhan, learned AGA for the State.
2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Complaint No. 40 of 2024 (Old Complaint no.5095/2019 and Complaint No.427 of 2021) (Smt. Iksharajey Versus Indraveer Singh and Another), under Section-138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station-Kotwali Orai, District-Jalaun, pending in the Court of learned Judicial Magistrate, Jalaun, as well as impugned order dated 01.02.2024.
3. The contention of learned counsel for the applicants is that the cheque in question was presented in the account of opposite party no.2 in State Bank of India, Jalaun, but the complaint was filed at Orai. Thereafter, the applicants moved an application before the learned Sessions Judge, who by order dated 03.01.2024, transferred the case from Orai to Jalaun on the ground that the Court at Jalaun had jurisdiction as per Section-142(2) of the Act, 1881. After transferring this case to Jalaun, the applicants moved an application before the Court concerned, requesting that cognizance be taken by the Court at Orai, which was not competent to take cognizance. Therefore, a fresh proceeding of cognizance may be initiated, but the Judicial Magistrate, Jalaun, rejected that application.
4. Learned counsel for the applicant relied upon the judgment of Apex Court passed in the case of Yogesh Upadhyay and another Vs. Atlanta Limited, 2023 SCC Online SC 170, in which it is observed that when the cognizance was taken by the Court, which has no jurisdiction, then the amendment made in Section 142 of N.I. Act in pursuance of the judgment of Apex Court in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra, [(2014) 9 SCC 129], the complainant should be transferred to the Court with jurisdiction as per the amended provision.
5. Learned counsel for opposite party no.2 has submitted that even if the cognizance was taken by the Court having no jurisdiction is a bona fide mistake, then transferring the same to the Court having jurisdiction will not make the cognizance illegal and the transferee Court which will proceed further from the stage of enquiry or trial. Learned counsel also submits that as per sub-clause (2) of Section 142 of N.I. Act, an offence under Section 138 N.I. Act can be inquired into and tried only by a Court within whose local jurisdiction the cheque was presented for collection and bounced.
6. Learned counsel for opposite party no.2 has also relied upon the judgment of Madras High Court passed in Criminal Appeal No.398 of 2011, V. Velu, S/o. Vedappan Vs. Chennakrishnan, S/o. Venkataraman, in which Apex Court observed that if the cognizance was taken in good faith by the Court not having jurisdiction, the cognizance order could not be set aside because such irregularity will not vitiate the proceedings.
7. After hearing the rival submissions of learned counsel for the parties and on the perusal of the record, it appears that the impugned complaint was earlier filed before the Court of Chief Judicial Magistrate, Jalaun at Orai, who, after perusal of the complaint as well as a statement under Section 200 Cr.P.C. and also the documents on record, summoned the applicants. After that, on the applicant's application, that complaint was transferred to the Judicial Magistrate, Orai, District Jalaun, by the District Judge, Jalaun at Orai, by order dated 03.01.2024. After transferring the impugned complaint before the Court of Judicial Magistrate, Orai, District Jalaun, applicant no.1 filed an application on 01.02.2024 praying that the earlier summoning order passed by Chief Judicial Magistrate, Jalaun at Orai was without jurisdiction. Therefore, the complaint should be heard again on merit, and a fresh summoning order may be passed, but that application was rejected by an order dated 01.02.2024.
8. Sub-sections (2) of Section 142 and 142-A of N.I. Act was introduced w.e.f. 15.06.2015. As per Section 142 sub-section (2), an offence under Section 138 N.I. Act can be inquired and tried by the Court within whose local jurisdiction the Branch of Bank where the holder in due course was maintaining the account, in which cheque was presented for collection. Section 142-A N.I. Act provides that all cases under Section 138 N.I. Act shall be deemed to be transferred to the Court having jurisdiction under Section 142 (2) N.I. Act. Section 142 sub-section (2) as well as Section 142-A of N.I. Act are being quoted as under :-
"142. Cognizance of offences.--
(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 purposes 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.
Section 142A. Validation for transfer of pending cases.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, 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 been transferred under this Act, as if that sub-section had been in force at all material times.
(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the Court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that Court under sub-section (1) and such complaint is pending in that Court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same Court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that Court.
(3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the Court, such Court shall transfer the case 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), before which the first case was filed and is pending, as if that sub-section had been in force at all material times."
9. Hon'ble Apex Court in paragraph no.22 of Dashrath Rupsingh Rathod (supra), observed that in the complaint under Section 138 N.I. Act, where the accused has been summoned and appeared by a Court that has no jurisdiction over that complaint, will be transferred to the Court having jurisdiction. The competent Court will proceed, and all other complaints, including that complaint where the accused has not been properly served, shall be returned to that complaint for filing in proper Court. Paragraph no.22 is being quoted as under:-
"22. 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 respondent-accused 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 pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other complaints (obviously including those where the respondent-accused has not been properly served) shall be returned to the complainant for filing in the proper Court, in consonance with our exposition of the law. If such complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time-barred."
10. After the judgment of Dashrath Rupsingh Rathod (supra), an amendment was made in Section 142 by adding Section 142 (2) and Section 142A was inserted by the amendment of the year 2015 in the Negotiable Instruments Act. As per the new Section 142 (2), the jurisdiction to inquire and try was given to that Court where the cheque was delivered for collection through an account.
11. The issue of jurisdiction under 142 N.I. Act was again considered in the case of Bridgestone India Private Limited vs. Inderpal Singh, (2016) 2 SCC 75. In this judgment, the Apex Court observed that an amendment was made in Section 142, sub-section (2), and Section 142-A of N.I. Act will have a retrospective effect, therefore, if the complaint is not filed in the Court, which has no jurisdiction as per Section 142(2) N.I. Act, that complaint would be transferred to the Court having jurisdiction. Paragraph nos. 13, 14 and 15 of Bridgestone India Private Limited (supra) are being quoted as under:-
"13. A perusal of the amended Section 142(2), extracted above, leaves no room for any doubt, specially in view of the Explanation thereunder, that with reference to an offence under Section 138 of the Negotiable Instruments Act, 1881, the place where a cheque is delivered for collection i.e. the branch of the bank of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction.
14. It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142-A was inserted into the Negotiable Instruments Act. A perusal of sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non obstante clause in sub-section (1) of Section 142-A. Likewise, any judgment, decree, order or direction issued by a court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied that the judgment rendered by this Court in Dashrath Rupsingh Rathod case [Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 : (2014) 3 SCC (Cri) 673] would also not non-suit the appellant for the relief claimed.
15. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia, in the territorial jurisdiction of the court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142-A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod case [Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 : (2014) 3 SCC (Cri) 673] , would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in the present case arises."
12. Hon'ble Apex court in the case of Yogesh Upadhyay and another (supra), after relying upon the judgement of Bridgestone India Private Limited (supra), has been observed that even the Supreme Court can exercise power under Section 406 Cr.P.C., to transfer the cases pending in the Court which has not had jurisdiction to the Court having territorial jurisdiction and also other complaints filed in different Courts to the Court where the first complaint was filed or transferred in the Court having territorial jurisdiction as per Section 142 sub-section (2) of N.I. Act.
13. So far as the contention of learned counsel for the applicants that if the cognizance was taken by a Court that does not have jurisdiction, then after transferring it to the Court having jurisdiction, the Court will have to hear the complaint afresh and has to pass fresh summoning order is concerned, to decide this issue Sections 460, 461 and 462 of Cr.P.C. are relevant, which are being quoted as under:-
"460. Irregularities which do not vitiate proceedings.--If any Magistrate not empowered by law to do any of the following things, namely:--
(a) to issue a search-warrant under Section 94;
(b) to order, under Section 155, the police to investigate an offence;
(c) to hold an inquest under Section 176;
(d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;
(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190;
(f) to make over a case under sub-section (2) of Section 192;
(g) to tender a pardon under Section 306;
(h) to recall a case and try it himself under Section 410; or
(i) to sell property under Section 458 or Section 459,
erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.
461. Irregularities which vitiate proceedings.--If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:--
(a) attaches and sells property under Section 83;
(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under Section 133 as to a local nuisance;
(i) prohibits, under Section 143, the repetition or continuance of a public nuisance;
(j) makes an order under Part C or Part D of Chapter X;
(k) takes cognizance of an offence under clause (c) of sub-section (1) of Section 190;
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under Section 325, on proceedings recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under Section 397, for proceedings; or
(q) revises an order passed under Section 446,
his proceedings shall be void.
462. Proceedings in wrong place.--No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice."
14. From a perusal of Section 460 Cr.P.C., it is clear that Section 460 (e) Cr.P.C. provides that if the cognizance of an offence is taken erroneously in good faith under Clause (a) of Section 190 (1) of Cr.P.C. by a Court not having jurisdiction, even then same will not vitiate the proceeding. Again, Section 462 Cr.P.C. also prescribes that no finding, sentence or order of Criminal Court will be set aside only on the ground that inquiry, trial or other proceedings have been arrived at in the wrong Court unless an error has the effect of causing failure of justice.
15. In the present case, on the basis of the complaint, statement and documents on record, cognizance was taken by the earlier Court not having jurisdiction, which was subsequently transferred to the Judicial Magistrate, Orai; this will not in any way occasion a failure of justice to the applicant because transferee court itself has to consider the same complaint and document and pass order on the basis of prima facie satisfaction. Section 461 (k) Cr.P.C. further provides that if the cognizance is taken by a Court which is not competent under Section 190(1)(c) Cr.P.C., only then the cognizance will vitiate the proceeding. However, in the present case, cognizance was taken under Section 190 (1) (a) Cr.P.C., not under Section 190(1)(c) Cr.P.C. Therefore, cognizance will not be vitiated under Section 461 (k) of Cr.P.C.
16. In the present case, the earlier Court of Chief Judicial Magistrate, Jalaun at Orai, after taking evidence on an affidavit under Section 145 N.I. Act summoned the accused persons. Subsequently, accused persons, including applicant no.1, appeared before the Court below. Therefore, in view of the above legal position, the transferee Court will continue to proceed from that stage instead of hearing the complaint afresh.
17. In view of the above, there is no illegality in the impugned order dated 01.02.2024. Therefore, the present application is dismissed.
Order Date :- 27.5.2024
Atul
