Chattisgarh High Court
Smt. Krishna Bai vs Bharosaram Verma on 24 April, 2025
Digitally signed by
V PADMAVATHI
Date: 2025.05.16
13:43:10 +0530
2025:CGHC:18709
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 1384 of 2025
Smt. Krishna Bai W/o Shri Desh Kumar Barle Aged About 35 Years R/o Village
Umariya, Police Station Mandir Hasaud, Tahsil Arang, Distt Raipur (C.G.)
... Petitioner
versus
Bharosaram Verma S/o Shri Parmanand Verma Aged About 41 Years R/o Jelpara,
Bemcha Ward No. 15, Police Station, Tahsil And District Mahasamund (C.G.)
... Respondent
(Cause title is taken from the CIS)
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For Petitioner : Shri Pushpendra Kumar Patel, Advocate
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Hon'ble Shri Justice Ravindra Kumar Agrawal
Order on Board
24.04.2025
1. Present petition has been filed under Section 528 of the Bhartiya
Nagarik Suraksha Sanhita, 2023 (BNSS 2023) against the order dated
04.03.2025, passed by the learned Chief Judicial Magistrate, Raipur, CG
in Case file-22146 of 2025, whereby the Complaint case filed by the
petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for
short, 'NI Act') has been returned back for filing of the same within the
competent jurisdictional Court.
2. Brief facts of the case are that petitioner is the complainant in the
Complaint case filed under Section 138 of the NI Act. The respondent
had issued a cheque bearing No.19138 dated 11.01.2023 from his Bank
account running at IDBI Bank, Branch Mahasamund for discharge of his
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liability. Petitioner is the resident of village-Umari, Tahsil-Arang, District-
Raipur. When the petitioner deposited the said cheque in her Bank
account, situated at the Jila Sahkari Kendriya Bank Maryadit, Raipur,
Branch-Tumgaon, District-Mahasamund, it was dishonored on
21.01.2023 on the ground of insufficiency of fund. The legal demand
notice was issued to the respondent, and thereafter, a Complaint case
was filed by the petitioner on 24.03.2023 before the learned Chief
Judicial Magistrate (CJM), Mahasamund for commission of offence
under Section 138 of the NI Act. The learned CJM had returned the
Complaint case on 11.04.2023 to the petitioner for filing it before the
competent Court having jurisdiction to try the offence, in view of the
judgment passed by the Hon'ble Supreme Court in case of Himalaya
Self Farming Group Vs Goyal Feed Suppliers, Transfer Petition
(Criminal) No.273 of 2020, and also provisions contained in Section
142(2)(a) of the NI Act on 11.04.2023. The learned Court has observed
in its order dated 11.04.2023 that after dishonor of the cheque the same
was returned back to the District Cooperative Sahakari Kendriya Bank
Maryadit, Raipur, Tumgaon Branch, from where she received back the
same, and therefore, the Court within whose jurisdiction the Branch of the
Bank, where the payee maintains the account is situated, will have
jurisdiction to try the offence, if the cheque is delivered for collection
through an account.
3. Considering the order passed by the learned CJM Mahasamund,
the petitioner took her complaint back for filing in the Court having
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competent jurisdiction at Raipur. The petitioner had filed her complaint
before the learned JMFC Raipur on 24.04.2023. The case was registered
before the Court of learned JMFC Raipur on the same day as Criminal
case-22146 of 2025, and process was issued upon the
respondent/accused for his appearance on 18.11.2024.
4. On the said date, respondent/accused made his appearance, and
was released on bail. Thereafter, the case was fixed for argument on its
registration, and for compromise. Thereafter, the case was adjourned
from time to time for argument, of its registration, and ultimately on
01.03.2025, arguments were heard on its registration, and on
04.03.2025, order has been passed by the learned JMFC Raipur, holding
that the complainant is maintaining her Bank account at IDBI Bank
Tumgaon Branch, Mahasamund, and in view of Section 142(2)(b) of the
NI Act, the Court within whose local jurisdiction the drawer maintains the
account is situated, complaint is to be filed there only, and has returned
the complaint to the complainant for filing it before the Court having
competent jurisdiction.
5. Since the complaint case filed by the complainant/petitioner was
returned back by both the courts ie Mahasamund, as well as Raipur, she
filed the present petition for a direction about the jurisdiction of Courts to
file her complaint, and to proceed with the case.
6. Learned counsel for the petitioner would submit that the petitioner is
bona fidely prosecuting her complaint but for want of jurisdiction, her
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complaint case was returned back from both the Courts. Although from
language of section 142 of the NI Act, it appears that both the Courts
where the Drawer maintains his/her bank account, and where the drawee
Bank is situated, have jurisdiction to try the offence. But Both the Courts
have returned back the complaint of the petitioner for filing it before the
jurisdictional court. The orders passed by the learned JMFC Raipur is
perverse in view of Section 142(2) of the NI Act, and therefore, order
dated 04.03.2025 may be set aside, and directed the JMFC Raipur to
register the complaint case of the petitioner and try the offence.
7. Heard learned counsel for the petitioner, and perused the material
annexed with the petition.
8. The core issue involved in the petition is the jurisdiction to file the
complaint when a cheque is dishonored by the payee bank on any of the
ground under the NI Act.
9. Cognizance of the offence is provided in Section 142 of the NI Act,
and it is necessary to quote here the provisions of Section 142 of the NI
Act:
Section 142(2) in The Negotiable Instruments Act, 1881--
(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
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(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.
10. Section 142 of the NI Act specifically provides the jurisdiction,
where the complaint case is to be filed, and Section 142(2) (a) and (b)
provides that the offence under Section 138 of the NI Act shall be
enquired into, and tried by the Court within whose local jurisdiction the
cheque is delivered for collection through an account, the Branch of the
payee Bank, or holder in due course maintains the account is situated, or
the Branch of the drawee bank where the drawer maintaains the account
is situated.
11. In the present case, the petitioner deposited the cheque at Raipur
in her account which was sent to the bank account situated at the branch
Mahasamund for its clearance, where, the drawer maintains his account,
and thus, in view of the provisions of Section 142 (2)(a) and (b) of the NI
Act, the Raipur code is also having jurisdiction to try the offence under
Section 138 of the NI Act as the cheque was deposited by the drawee in
her account, where the payee is maintaining her Bank account.
12. In the matter of Bridgestone India Private Limited Vs Inderpal
Singh (2016) 2 SCC 75 Hon'ble Supreme Court has held thus:
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"9. During the course of hearing, learned counsel for the appellant cited
the decision rendered by a three-Judge Bench of this Court in Dashrath
Rupsingh Rathod vs. State of Maharashtra and another, (2014) 9 SCC
129, and pointedly invited our attention to the conclusions drawn by this
Court in paragraph 58, which is extracted hereunder:
"58. To sum up:
58.1 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.
58.2 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.
58.3 The cause of action to file a complaint accrues to a
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.
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58.4 The facts constituting cause of action do not constitute the
ingredients of the offence under Section 138 of the Act.
58.5 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.
58.6 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.
58.7 The general rule stipulated under Section 177 CrPC 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 184 of the
Code of Criminal Procedure or is covered by the provisions of
Section 182(1) read with Sections 184 and 220 thereof."
10. In view of the decision rendered by this Court in Dashrath Rupsingh
Rathod's case, it is apparent, that the impugned order dated 05.05.2011,
passed by the High Court of Madhya Pradesh, Bench at Indore, was
wholly justified.
11. In order to overcome the legal position declared by this Court in
Dashrath Rupsingh Rathod's case, learned counsel for the appellant has
drawn our attention to the Negotiable Instruments (Amendment) Second
Ordinance, 2015 (hereinafter referred to as `the Ordinance'). A perusal of
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Section 1(2) thereof reveals, that the Ordinance would be deemed to have
come into force with effect from 15.06.2015. It is therefore pointed out to
us, that the Negotiable Instruments (Amendment) Second Ordinance,
2015 is in force. Our attention was then invited to Section 3 thereof,
whereby, the original Section 142 of the Negotiable Instruments Act, 1881,
came to be amended, and also, Section 4 thereof, whereby, Section 142A
was inserted into the Negotiable Instruments Act.
12. Sections 3 and 4 of the Negotiable Instruments (Amendment) Second
Ordinance, 2015 are being extracted hereunder:
"3. 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--
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 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."
4. Insertion of new section--In the principal Act, after section
142, the following section shall be inserted, namely--
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142-A. Validation for transfer of pending cases-- (1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 or any judgment, decree, order or
directions 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, shall be deemed to have been transferred
under this Ordinance, 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 this Ordinance,
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, before which the first case was filed and
is pending, as if that sub-section had been in force at all
material times." (Emphasis is ours)
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
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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 142A 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-obstinate clause in sub-section
(1) of Section 142A. 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's case
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
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the bank where the payee or holder in due course maintains an account).
We are also satisfied, based on Section 142A(1) to the effect, that the
judgment rendered by this Court in Dashrath Rupsingh Rathod's case,
would not stand in the way of the appellant, insofar as the territorial
jurisdiction for initiating proceedings emerging from the dishonor of the
cheque in the present case arises."
13. From the aforesaid facts and circumstances of the case, as well as
the law laid down by the Hon'ble Supreme Court in the aforesaid case of
Bridgestone India (supra), it appears that return of the complaint filed by
the petitioner from the Court of learned JMFC Raipur is erroneous, and
the said Court is having jurisdiction to try the offence of Section 142(2)(a)
of the NI Act, and it cannot return the complaint to the petitioner for filing
it before the competent jurisdictional Court.
14. Thus, this Court holds that learned JMFC Raipur is having
jurisdiction to try the offence under Section 138 of the NI Act in the
present case with respect to the dishonor of the cheque in the present
case, and learned JMFC Raipur is directed to register the case, and to
proceed in accordance with law.
15. With this observation, petition is allowed.
Sd/-
(Ravindra Kumar Agrawal)
JUDGE
padma
