Ravindra Thakur vs Sandeep Kumar
2023 Latest Caselaw 2004 HP

                      IN THE HIGH COURT OF HIMACHAL PRADESH,
                                    SHIMLA

                                                Cr.MMO No. 1262/2022




                                                                          .
                                                Decided on: 09.03.2023





    Ravindra Thakur                                                ...Petitioner

                                           Versus





    Sandeep Kumar                                  ...Respondent
    ............................................................................................
    Coram
    Hon'ble Ms. Just ice Jyotsna Rewal Dua, Judge.
    Whether approved for reporting?1                   Yes.

    For the petitioner :


     For the respondent :
                         r               to  Mr. Neel Kamal Sharma, Advocate
                                             with Ms. Shailza Kumari, Advocate.

                                              None.

    Jyotsna Rewal Dua, J.

Petitioner is the complainant in proceedings under

Section 138 of the Negotiable Instruments Act. The complaint was

initially presented by him before the Court of competent jurisdiction at

Rohru District Shimla. In view of subsequent amendment of the Act,

the complaint was transferred to the Court at Sarkaghat District

Mandi. Vide order dated 1.12.2022, the Sarkaghat Court has held that

it does not have jurisdiction to try the complaint and further directed

the petitioner/complainant to file appropriate application before

appropriate Court for transfer of the complaint. In this scenario, the

petitioner has invoked jurisdiction under Section 482 read with

Section 407 of Code of Criminal Procedure seeking transfer of his

Whether reporters of the local papers may be allowed to see the judgment?

complaint from Court of learned Judicial Magistrate First Class Court

No.2 Sarkaghat District Mandi to the Court of learned Chief Judicial

.

Magistrate Hamirpur.

2. As per office report, respondent stands duly served,

however, no one has appeared on his behalf.

A perusal of the impugned order dated 1.12.2022

reflects that the respondent had not attended the proceedings before

the learned Court below on 01.12.2022. Considering the nature of

the order passed by the learned Court below on 01.12.2022 and in

that background, the relief prayed for by the complainant/petitioner in

the instant petition, no further steps are necessary for effecting

compulsive service upon the respondent.

3. Facts

3(i) A complaint under Section 138 of the Negotiable

Instruments Act (the Act hereinafter) was presented by the petitioner

on 24.03.2015 in the Court of learned Additional Chief Judicial

Magistrar Rohru, District Shimla. The complaint was presented in the

said Court on the averred ground that the respondent-accused was

permanent resident of village Dhara Post Office Pachunchh, Tehsil

Rohru, District Shimla, and the cheque was issued by him in favour of

complainant at Rohru, District Shimla. The presentation of complaint

before the Court of learned Additional Chief Judicial Magistrar Rohru,

was in view of the judgment passed by the Hon'ble Apex Court in

(2014) 9 SCC 129 (Dashrath Rupsingh Rathod Vs. State of

Maharashtra & Another) wherein the territorial jurisdiction for filing of

.

the complaint was restricted to the location, where the cheque was

dishonoured i.e. cheque was returned unpaid by the bank on which it

was drawn.

3(ii) The Negotiable Instruments (Amendment) Act 2015,

came into force w.e.f. 15.06.2015. By this amendment, verdict in

Dashrath Rupsingh Rathod's case was legislatively overturned.

[Refer (2021) 6 SCC 258 (P. Mohanraj & Ors. Vs Shah Brothers

Ispat Private Limited)].

3(iii) Section 142 of the Act was amended by insertion of

following sub-section 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 (2016) 2 SCC 75 (Bridgestone India Private

Limited Vs. Inderpal Singh), the Hon'ble Apex Court endorsed that

.

under the provisions of Section 142(2) of the Act, 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.

3(iv) In view of amendment of the Act, the complaint

preferred by the petitioner was transferred by the Court of learned

Additional Chief Judicial Magistrate Rohru, District Shimla, vide order

dated 07.01.2016 to the Court of learned Judicial Magistrate First

Class No.2. Sarkaghat, District Mandi. The complaint was

transferred on the ground that complainant's house was situated

within the territorial jurisdiction of Court of Sarkaghat and he

maintains his bank account under the territorial jurisdiction of the

Sarkaghat Court.

3(v) Learned Judicial Magistrate First Class, Court No.2

Sarkaghat, considered the complaint and observed that the

complainant had presented the cheque in question for payment in

Punjab National Bank at Jahu, District Hamirpur. Accordingly, vide

order dated 01.12.2022, learned Judicial Magistrate First Class,

Court No.2 Sarkaghat, held that it did not have territorial jurisdiction

to try the complaint. Complainant was accordingly, directed to file

appropriate application before appropriate Court for transfer of the

complaint.

.

4. In the above legal & factual matrix, petitioner is before

this Court seeking transfer of his complaint to the Court of learned

Chief Judicial Magistrate, Hamirpur, District Hamirpur.

5. Observations

5(i) Paragraph-6 of the complaint mentions that the cheque

issued by the respondent-accused was presented by the petitioner-

complainant for encashment with his banker at Punjab National Bank

Branch Jahu, District Hamirpur. Therefore, in view of Section 142(2)

(a) of the Act and in light of pronouncement of Hon'ble Apex Court in

(2016) 2 SCC 75 (Bridgestone India Private Limited Vs. Inderpal

Singh), learned JMFC Court No.2 Sarkaghat was justified in holding

that it did not have the territorial jurisdiction to proceed in the matter.

It is an admitted position that the cheque was presented by the

petitioner at Punjab National Bank Branch Jahu, District Hamirpur.

After amendment of the Act, the jurisdiction to try the complaint

vested with the court of competent jurisdiction in District Hamirpur.

5(ii) The petitioner has moved this petition under Section

482 read with Section 407 of the Code of Criminal Procedure for

transferring his complaint No.138 NIA/20-III/2016 titled Ravindra

Thakur Vs. Sandeep Kumar from the Court of learned JMFC, Court

No.2 Sarkaghat District Mandi to the Court of learned CJM Hamirpur

District Hamirpur. Hon'ble Apex Court while deciding Transfer

Petition (Criminal) Nos.526-527/2022 (Yogesh Upadhyay & Anr.

.

Atlanta Limited) vide judgment dated 21.02.2023, considered the

non-obstante clause in Section 142(1) of the Act viz-a-viz Section

406 Cr.P.C. pertaining to powers of the Hon'ble Supreme Court to

transfer the cases and appeals. It was held that the non-obstante

clause in Section 142 of the Act has to be read and understood in

the context and for the purpose, it is used and it does not lend itself

to the interpretation that Section 406 Cr.P.C. would stand excluded

viz-a-viz offences under Section 138 of the Act. That the power of the

Court to transfer pending criminal proceedings under Section 406

Cr.P.C. does not stand abrogated thereby in respect of offences

under Section 138 of the Act. It was held that notwithstanding the

non-obstante clause in Section 142(1) of the Act, the power of the

Court to transfer criminal cases under Section 406 Cr.P.C. remains

intact in relation to offences under Section 138 of the Act, if it is

found expedient for the ends of justice. Relevant paragraph of the

judgment reads as under:-

"13. Therefore, institution of the first two complaint cases before the Courts at Nagpur is in keeping with the legal position obtaining now. However, the contention that the non obstante clause in Section 142(1) of the Act of 1881 would override Section 406 Cr.P.C. and that it would not be permissible for this Court to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. It may be noted that the non obstante

clause was there in the original Section 142 itself and was not introduced by way of the amendments in the year 2015, along with Section 142(2). The said clause merely has reference to the

.

manner in which cognizance is to be taken in offences

under Section 138 of the Act of 1881, as a departure has to be made from the usual procedure inasmuch as prosecution for the said offence stands postponed despite commission of the offence

being complete upon dishonour of the cheque and it must necessarily be in terms of the procedure prescribed. The clause, therefore, has to be read and understood in the context and for the purpose it is used and it does not lend itself to the interpretation

that Section 406 Cr.P.C. would stand excluded vis-à-vis offences under Section 138 of the Act of 1881. The power of this Court to transfer pending criminal proceedings under Section 406 Cr.P.C.

does not stand abrogated thereby in respect of offences

under Section 138 of the Act of 1881. It may be noted that this Court exercised power under Section 406 Cr.P.C. in relation to offences under Section 138 of the Act of 1881 even during the time the original Section 142 held the field. In A.E. Premanand Vs.

Escorts Finance Ltd. & Others [(2004) 13 SCC 527], this Court took note of the fact that the offences therein, under Section

138 of the Act of 1881, had arisen out of one single transaction and found it appropriate and in the interest of justice that all such

cases should be tried in one Court. We, therefore, hold that, notwithstanding the non obstante clause in Section 142(1) of the Act of 1881, the power of this Court to transfer criminal cases

under Section 406 Cr.P.C. remains intact in relation to offences under Section 138 of the Act of 1881, if it is found expedient for the ends of justice."

In the instant case, petitioner-complainant has invoked

the jurisdiction under Section 482 read with Section 407 of the Code

of Criminal Procedure. In terms of Section 407 Cr.P.C., this Court

can exercise the jurisdiction for transferring the cases. In view of

amendment of Section 142 of the Act after the institution of the

complaint by the petitioner, it would be necessary and expedient to

.

meet the ends of justice by ordering transfer of the complaint from

the Court of learned JMFC, Court No.2 Sarkaghat District Mandi to

the Court of learned CJM Hamirpur District Hamirpur. The order in

question passed on 01.12.2022 by the learned JMFC Court No.2

Sarkaghat itself shows that the complaint was transferred from the

Court of learned ACJM, Rohru, in view of the aforementioned

amendment of Act but instead of being transferred to the Court of

competent jurisdiction in district Hamirpur, it was somehow

transferred to the Court of learned JMFC Court No.2 Sarkaghat,

which lacks the territorial jurisdiction to try the complaint.

For the aforesaid reasons, present petition is allowed.

Complaint No.138 NIA/20-III/2016 titled Ravindra Thakur Vs.

Sandeep Kumar filed by the petitioner is ordered to be transferred

from the Court of learned Judicial Magistrate First Class, Court No.2

Sarkaghat to the Court of learned Chief Judicial Magistrate, District

Hamirpur. The original record of the complaint pending before the

Court of JMFC Court No.2 Sarkaghat, District Mandi is ordered to be

transferred to the Court of learned CJM Hamirpur. This exercise be

completed within four weeks from today. The Court of learned

Judicial Magistrate First Class (Court No.2) Sarkaghat District Mandi

to intimate the respondent/accused about passing of this order and

transfer of the complaint. Upon transfer of the complaint to the Court

of learned Chief Judicial Magistrate, District Hamirpur, fresh notice

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to the parties be issued, in accordance with law, for their appearance

in the complaint. The Registry is directed to send a copy of this order

to the Court of learned Judicial Magistrate First Class Court No.2

Sakaghat, District Mandi & Court of learned Chief Judicial Magistrate

Hamirpur, District Hamirpur, for compliance and further necessary

action.

The petition stands disposed of in the above terms, so

also the pending application(s), if any.

Jyotsna Rewal Dua Judge 09th March 2023

(Rohit)