Delhi High Court
Indiasign P.Ltd vs Hindustan Broadcasting Co. P. ... on 23 July, 2018
$~27 to 32
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 23rd July, 2018
+ CRL.M.C. 1823/2016
INDIASIGN P.LTD. ..... Petitioner
Through: Ms. Nisha Narayanan, Advocate
versus
HINDUSTAN BROADCASTING CO. P. LTD.
& ANR. ..... Respondent
Through: None
+ CRL.M.C. 1831/2016
INDIASIGN PVT. LTD ..... Petitioner
Through: Ms. Nisha Narayanan, Advocate
versus
HINDUSTAN BROADCASTING CO. P. LTD.
AND ANR. ..... Respondents
Through: None
+ CRL.M.C. 1832/2016
INDIASIGN P. LTD. ..... Petitioner
Through: Ms. Nisha Narayanan, Advocate
versus
HINDUSTAN BROADCASTING CO. P. LTD.
& ANR ..... Respondents
Through: None
+ CRL.M.C. 1833/2016
Crl. M.C. No.1823/2016 & connected Page 1 of 7
INDIASIGN P.LTD.
..... Petitioner
Through: Ms. Nisha Narayanan, Advocate
versus
HINDUSTAN BROADCASTING CO. P.LTD
& ANR ..... Respondents
Through: None
+ CRL.M.C. 1834/2016
INDIASIGN P.LTD. ..... Petitioner
Through: Ms. Nisha Narayanan, Advocate
versus
HINDUSTAN BROADCASTING CO. P. LTD.
& ANR ..... Respondents
Through: None
+ CRL.M.C. 1835/2016
INDIASIGN P.LTD. ..... Petitioner
Through: Ms. Nisha Narayanan, Advocate
versus
HINDUSTAN BROADCASTING CO. P. LTD.
& ANR ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner company had presented six criminal complaints
in the court of the Metropolitan Magistrate, they having been
registered as Crl. Complaint nos.328/1/13, 337/1/13, 338/1/13,
382/1/13, 1080/1/14 & 1099/1/14 - each seeking prosecution of the
respondents for the offence under Section 138 of the Negotiable
Instruments Act, 1881 on the allegations that no payments had been
made by them pursuant to the notices of demand in the wake of
dishonor of certain cheques which had been issued by the respondents
in favour of the petitioner (complainant) towards discharge of their
liability. The Metropolitan Magistrate appears to have initially taken
cognizance on the said complaints and, after preliminary inquiry,
issued processes against the respondents.
2. The complaints, however, were directed by order dated
24.01.2015 to be returned to the complainant in view of the directions
of the Supreme Court in the decision reported as Dashrath Rupsingh
Rathod Vs. State of Maharashtra and Anr., (2014) 9 SCC 129, taking
note of the fact that the cheques in question had been drawn and
issued by the respondents against the account of the first respondent
with the Central Bank of India, Tonk Road, Lal Kothi, Jaipur,
Rajasthan, the prosecution for such offences on basis of such cheques
pertaining to the place where the drawee bank was situate, the court of
the Metropolitan Magistrate in New Delhi lacking the territorial
jurisdiction.
3. The Central Government promulgated Negotiable Instruments
Act (Amendment) Ordinance, 2015 which came into force on
15.06.2015 incorporating certain legislative changes in the Negotiable
Instruments Act, 1881. On the basis of the said ordinance, the
petitioner (complainant) moved an application for recall of the
aforementioned order dated 24.01.2015. As the said Ordinance lapsed
on 31.08.2015, the applications, however, became infructuous and
were disposed of accordingly by order dated 18.09.2015. Later, the
said Ordinance was re-promulgated as Ordinance no.7 of 2015. On
the strength of amendment to the law thus carried by the second
Ordinance, fresh applications were moved by the petitioner seeking
recall of the order dated 24.01.2015. The Metropolitan Magistrate, by
order dated 16.12.2015, however, declined to entertain the complaints
once again, inter alia, observing that the complaints had been returned
prior to the promulgation of the Ordinance and further that the court of
the Magistrate had become infructuous, there being no power to
review / recall of the order of transfer of the complaint cases.
4. Aggrieved by the aforementioned view taken by the Magistrate,
the petitioner (complainant) has approached this court in the context of
the six criminal complaint cases.
5. On notice, respondents appeared through counsel. Opportunity
for reply to be filed in these matters was granted. No reply, however,
has been submitted. When these matters are taken up for hearing,
there is no appearance on behalf of the respondents.
6. The learned counsel for the petitioner has been heard and the
record perused.
7. The second Ordinance referred to above has since been replaced
by the amendment of law by the legislature by enactment of the
Negotiable Instruments (Amendment) Act, 2015 whereby sub-section
(2) was inserted to Section 142, the existing clause contained therein
having been re-numbered as sub-Section (1), this besides insertion of
new Section 142A. For present purposes, the provisions contained in
Section 142(2) and Section 142A need to be noted. They may be
extracted as under :-
"Section 142
xxx
(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 his
account, the branch of the drawee bank where the
drawer maintains the account, is situated.
Explanation - For the purpose of clause (a), where
the 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 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 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, 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, before which the first case was filed and
is pending, as if that sub-section had been in force at all
material times."
8. The legislature has thus clarified that the court within whose
local jurisdiction the branch of the bank where the payee or the holder
in due course maintains the account in which the cheque in question is
delivered for collection would ordinarily be the court of competent
jurisdiction to take cognizance of and inquire into and try the offence
under Section 138 of the Negotiable Instruments Act, 1881. By this
reckoning, the court of the Metropolitan Magistrate at New Delhi
District would be the jurisdictional court to deal with the criminal
complaint cases in as much as the cheques in question here were
presented by the petitioner for collection through its bank having
branch in Connaught Place, New Delhi. The provision contained in
Section 142 A, as has been inserted by the amendment, itself clarifies
that the transfer of these criminal cases from Delhi to Jaipur in the
given facts and circumstances would not be proper, the amendment
having retrospective effect and negating the effect of the directions in
Dashrath Rupsingh Rathod (supra).
9. In above view, the petitions are allowed. The impugned orders
of the Metropolitan Magistrate transferring or declining to entertain
criminal complaint cases are set aside. In the result, the criminal
complaint cases would stand revived on the file of the concerned
Metropolitan Magistrate of New Delhi district, who is directed to
proceed further thereupon in accordance with law. The parties are
directed to appear before the Metropolitan Magistrate on 14.08.2018.
10. The petitions are disposed of in above terms.
R.K.GAUBA, J.
JULY 23, 2018
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