Reserved On: 22.02.2023 vs M/S Asian Granito India Ltd. & Anr
2023 Latest Caselaw 383 j&K

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 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU

                                         CRR No. 28/2016
                                         IA NO. 01/2016
                                        Reserved on: 22.02.2023
                                        Announced on: 27.02.2023
Gagan Sharma
                                               ...Petitioner (s)

      Through: Ms. Isha Razdan, Advocate vice
               Ms. Shivani Jalali,Advocate
                   Vs.

M/S Asian Granito India Ltd. & Anr.

                                               ...Respondent(s)

      Through: Mr.Aman Dabgotra, Advocate

CORAM: HON'BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE

                     JUDGMENT

1. The present Criminal Revision Petition has been filed against the

order dated 03.05.2016 (for short „impugned order‟) passed in

complaint titled M/s Asian Granito India Ltd. Vs. Gagan Sharma by

Learned Judicial Magistrate (2nd Munsiff ) Jammu, ( hereinafter

called „Jammu Court‟) whereby the case has been returned back to

the complainant ( respondent no. 2 herein) with liberty to him to

present the same within 30 days to the concerned court.

2. The brief facts giving rise to the present revision petition are that the

respondent no. 2 had filed a complaint purportedly under Section

138 r/w Section 141 of the Negotiable Instruments Act 1881 against

the petitioner before the Court of Learned Chief Judicial Magistrate

Ahmedabad (Rural) on 19.02.2012 which was transferred to the

Court of Ld. 4th Additional Senior Civil Judge Ahmedabad Rural,

Mirzapur Ahmedabad (hereinafter called for short Áhmedabad Page |2

Court‟) alleging therein that a cheque was issued by the petitioner

which has been dishonoured. It is further averred that respondent has

mentioned in the aforesaid complaint that petitioner/accused had

purchased tiles from the respondent and issued a cheque in lieu

thereof and there was nothing due against the petitioner, as such , the

complaint is nothing but an abuse of process of law.

3. It is submitted that during the pendency of the above complaint and

even before the petitioner could be served through summons the

landmark judgment of the Hon‟ble Apex Court in a case titled as

Dashrath Rupsingh Rathod Vs. State of Maharashtra'' (Cri.

Appeal No. 2287 of 2009) was pronounced dealing with the

territorial jurisdiction of the cases relating to dishonour of cheques.

Consequently, upon the said Judgment, the Trial Court at

Ahmedabad passed an order dated 13.04.2015 wherein the

Ahmedabad Court held that cheque has been drawn upon a bank

located outside the territorial jurisdiction of that Court. Therefore, in

view of the decision of Hon‟ble Apex Court in the above said case

the complaint was returned to the complainant to be presented in the

competent criminal court located in Jammu & Kashmir. Thereafter

an application was filed by the respondent no. 2 for the presentation

of the above titled complaint before the Court of Ld. CJM, Jammu

and complaint was transferred to the Court of learned Judicial

Magistrate (2nd Addl; Munsiff) Jammu. Consequently the application

was allowed and the court took the cognizance of the matter and

proceedings were initiated and petitioner after being served notice

appeared before the learned trial court and furnished the bail bonds

to the satisfaction of trial court.

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4. During the pendency of the said complaint, the Jammu, in view of

the Negotiable Instruments (Amendment) Ordinance, 2015 passed

the impugned order dated 03.05.2016, whereby complaint was

returned back to respondent no. 2 with liberty to present the same

within 30 days to the Concerned Court.

5. Amendments have been incorporated in the Negotiable Instruments

Act by virtue of which Negotiable Instruments (Amendment)

Ordinance 2015 ( hereinafter referred to as „First Amendment‟) read

with Negotiable Instruments ( Amendment). Ordinance 2015

(hereinafter referred to as „Second Ordinance‟) were incorporated in

Sub-section (2) of Section 142 of the Principal Act (Negotiable

Instruments Act, 1881). The learned Magistrate at Jammu, passed

the order impugned dated 03.05.2016 observing that in view of the

latest amendment the complaint is not maintainable before his Court,

as such, complaint in original along with the accompanying

documents was directed to be returned back to the complainant

against proper receipt, with liberty to the applicant to present the

same within 30 days from the date of the order passed by the Court

to the competent Court.

6. The ground of challenge thrown to order impugned in the present

revision petition is that there is no such provision incorporated in

Second Ordinance of Negotiable Instruments (Amendment), Second

Ordinance, 2015, therefore the order impugned transferring the

complaint/application is without jurisdiction.

7. Heard learned counsel for the parties.

8. Learned counsel for the petitioner submits that the „First Ordinance‟ Page |4

Negotiable Instruments (Amendemt) Ordinance, 2015, was

promulgated by Hon‟ble President of India on 15th June, 2015 and

the Parliament re-assembled on 21st July, 2015 for the Monsoon

Session, therefore, the Ordinance ceased to operate on the expiry of

the period of six week with effect from 21st July, 2015. Therefore,

the First Ordinance lapsed on 31st August, 2015. Negotiable

instruments (Amendment) Second Ordinance, 2015 was

promulgated by Hon‟ble the President of India to further amend the

Negotiable Instruments Act, 1881. In the preamble of the Second

Ordinance, it was mentioned that Negotiable Instruments

(Amendment) First Ordinance, to replace the Negotiable Instruments

(Amendment) Second Ordinance, 2015 has been passed by the

House of People and is pending in the Council of the State. It is

further averred that the Second Ordinance was given effect from 15th

June, 2015, i.e. the date when first Ordinance was promulgated.

9. Learned counsel for the respondent argues that the present revision

petition is misconceived, in view of the insertion of Section 142-A in

the Negotiable Instruments Act. Further argues that sub-section (1)

thereof leaves no room for any doubt in so far as the place of trial of

offence under Section 138 of the Negotiable Instruments Act is

concerned. He further argued that in light of amendments made in

the Negotiable Instruments Act by virtue of the Negotiable

Instruments (Amendment) Ordinance, 2015 ( No.6 of 2015, First

Ordinance) read with the Negotiable Instruments (Amendment)

Second Ordinance, 2015 ( No.7 of 2015), the trial Court has rightly

passed the order impugned, returning the complaint to be presented

to the concerned Court.

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10. Hon‟ble Apex Court in case titled Bridgestone India Pvt. Ltd. V.

Inderpal Singh (2015 AIR SCW 6556), considered and dealt with

the validity of Sub Section (2) of Section 142-A of the Negotiable

Instruments (Amendment) Act, 2015 . Relevant para 11 and 12 of

the said judgment are reproduced as under:

"11. 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-obstante 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.

12. 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 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‟‟.

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11. As the learned counsel for the parties have vehemently argued on Section 142A of the Negotiable Instruments ( Amendment) Act, 2015, it would be advantageous to reproduce relevant portion thereof:

„„142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the court having jurisdiction under sub-section (2) of section 142 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) Ordinance, 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 before which the first case was filed and is pending, as if that sub-section had been in force at all material times.‟‟.

12. Admittedly, in the case on hand, the petitioner has not

challenged the vires of Amendment of Section 142A of the

Negotiable Instruments (Amendment) Act, 2015. Thus from the

conjoint reading of the newly inserted provisions in the Negotiable

Instruments Act and the law laid down by the Apex Court in case

titled Bridgestone India Private Limited ( supra), it is explicitly Page |7

clear that the newly inserted provisions of the Negotiable

Instruments Act, are applicable with retrospective effect, that is

from 15.6.2015 and the decision of the Hon‟ble Apex Court in case

Dashhrath Rupsing Rathod v. State of Maharashtra is statutorily

superseded.

13. As per Section 142A, amended by the Negotiable

Instruments (Amendment) Second Ordinance, 2015 vests

jurisdiction for initiation of proceedings under Section 138 of the

Negotiable Instruments Act, inter alia, in the territorial jurisdiction

of the Court where the cheque is presented for encashment by the

Payee to his Banker. In the promulgation of Negotiable Instruments

( Amendment) Second Ordinance, 2015, the expression "...is as if

that sub-section had been in force at material times..." has been

used with reference to Section 142 (2) . Be that as it may, Section

142-A (1) gives retrospective effect to the provisions.

14. I am of the considered view that there is no scope to interfere

with the order impugned dated 03.05.2016 passed by the Jammu

Court , whereby a complaint initially filed in the Ahmedabad Court

where the payee had presented cheque issued by the petitioner

herein, to his bankers at Ahmedabad and later in view of the

judgment of the Apex Court was returned to be presented before the

Jammu Court, in view of the retrospective effect of amendment of

Negotiable Instruments Act by incorporating section 142-A is now

maintainable at Ahmedabad only. The impugned order thus does not

warrant any interference by this court, invoking revisional

jurisdiction, which is upheld.

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15. For the foregoing reasons, this Criminal Revision Petition is

devoid of merit and is accordingly, dismissed alongwith pending

application(s). No costs. Copy of this judgment shall be sent down

for information and compliance.

(MA CHOWDHARY) JUDGE Jammu 27.02.2023 Mujtaba

Whether the order is reportable: Yes / No