Bijoy Shankar Mishra vs The State Of Jharkhand
2021 Latest Caselaw 4644 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr.M.P. No. 1266 of 2020

   Bijoy Shankar Mishra, aged about 62 years, son of late Jeevachh Mishra,
   resident of LIG Flat No. 6/8 , Road No. 2, P.O. Adityapur, P.S. RIT, Adityapur,
   District- Saraikela-Kharsawan
                                                                     ......

Petitioner Versus

1.The State of Jharkhand

2. Sourav Ghosh Choudhary, son of Late Suhas Gosh Choudhary, resident of 43, C H Area, Bistupur, P.O. and P.S. Bistupur, Town Jamshedpur, District-East Singhbhum, ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner        : Mr. J.P. Jha, Sr. Advocate
                          : Mr. Sunil Kumar Sinha, Advocate
For the State             : Mr. Satish Kr. Keshri, A.P.P.
For the O.P. No. 2        : Ms. Prachi Pradipti, Advocate
                            Mr. Rajan Kumar Tiwary, Advocate

6/Dated: 07/12/2021

1. Heard Mr. J.P. Jha, , learned senior counsel assisted by Mr. Sunil

Kumar Sinha, learned counsel for the petitioner, Mr. Satish Kr. Keshri, learned

counsel for the State and Ms. Prachi Pradipti, learned counsel for the O.P. No.2.

2. Petitioner has preferred this petition for quashing of order dated

18.02.2020 passed by learned Judicial Magistrate, Jamshedpur in connection

with Complaint Case No. 481 of 2016 whereby complaint case has been

dismissed and the O.P. No. 2 was discharged from the allegation levelled

against him.

3. The Complaint Case No. C/1 481/2016 has been instituted under

section 138 of the Negotiable Instrument Act stating therein that the

petitioner-complainant and O.P. No. 2-accused were good friends since long.

The petitioner gave 45,20,000/- to the O.P. No. 2 as friendly loan between 4th

August 2014 to 7th November 2015 by different cheques in different dates.

After receipt of the aforesaid amount, the O.P. No. 2 handed over 7 post dated

cheques of Rs. 45,20,000/- (details of Cheques are given in para 4 of the

petition). When the complainant/petitioner deposited the said post dated

cheques in Bank of India, AIE Branch, Adityapur, the same was dishonoured

with endorsement "insufficient fund" vide cheque return memo dated

12.09.2015. Thereafter the petitioner informed the said fact to the O.P. No. 2

upon which the O.P. No. 2 requested the petitioner to deposit the said

cheques in the last week of December, 2015. On his assurance, the petitioner

deposited the said cheques in the bank of India AIE Branch, Adityapur but the

same was again dishonoured vide return memo dated 30.12.2015. Thereafter,

the petitioner/complainant sent a legal notice on 06.01.2016 to the O.P. No. 2

but neither the A/D nor the registered cover returned and after lapse of 45

days, the present complaint case has been filed under section 138 N.I. Act

against the O.P. No. 2-accused.

4. Mr. J.P. Jha, learned senior counsel appearing on behalf of the

petitioner assailed the impugned order on the ground that cognizance was

taken on 22.03.2016 and O.P. No. 2 appeared in the concerned court on

21.06.2016 and obtained bail. He submits that trial has proceeded accordingly

and parties have exchanged their affidavits. Thereafter impugned order has

been passed which is bad in law. He further submits that on 17.08.2017,

learned Principal District & Sessions Judge re-allocated the file to the

concerned court and once file was re-allocated to the learned Magistrate it was

incumbent upon him to take permission from the Principal District & Sessions

Judge before passing such order. He further submits that the matter was sent

to the mediation center thereafter the parties have settled their dispute which

has been recorded in order dated 22.09.2017. He further submits that

concerned court is having the jurisdiction and on the point of jurisdiction no

prejudice has been caused to the accused and suo motu order has been

passed which is not in accordance with law. Lastly, he argued that in passing

the said order section 462 sub-section 2 of Section 465 of Cr.P.C. has not been

taken care of by the concerned court. To buttress his argument, learned senior

counsel for the petitioner relied on judgment in the case of " State of

Karnataka Vs. Kuppuswamy Gownder" reported in AIR 1987 1354

wherein para 15 the Hon'ble Supreme Court has held as under:-

"It is therefore clear that even if the trial before the III Additional City Civil and Sessions Judge would have been a Division other than the Bangalore Metropolitan Area for which III Additional City Civil and Sessions Judge is also notified to be a Sessions Judge still the trial could not have been quashed in view of S. 46. This goes a long way to show that even if a trial takes place in a wrong place where the Court has no territorial jurisdiction to try the case still unless failure of justice is pleaded and proved, the trial cannot be quashed. In this view of the matter therefore reading S. 462 along with S. 465 clearly goes to show that the scheme of the Criminal P.C. is that where there is no inherent lack of jurisdiction merely either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure an order or sentence awarded by a competent Court could not be set aside unless a prejudice is pleaded and proved which will mean failure of justice. But in absence of such a plea merely on such technical ground the order or sentence passed by a competent Court could not be quashed."

5. Relying on the aforesaid judgement, learned senior counsel for the

petitioner submits that in the light of this judgment trial required to be

completed at Jamshedpur itself. He referred para 22 of the Suo Motu Writ

Petition (Crl.) No. 2 of 2020 wherein the Hon'ble Supreme Court has held as

under:-

"Another submission made by the learned Amici Curiae relates to the power of the Magistrate under Section 322 of the Code, to revisit the order of issue of process if he has no jurisdiction to try the case. We are in agreement with the learned Amici Curiae that in case the Trial Court is informed that it lacks jurisdiction to issue process for complaints under Section 138 of the Act, the proceedings shall be stayed and the case shall be submitted to the Chief Judicial Magistrate or such other Magistrate having jurisdiction."

6. On these grounds, learned senior counsel for the petitioner submits

that dismissal of the complaint petition by the trial court is not sustainable and

this petition is fit to be allowed.

7. Per contra, Ms. Prachi Pradipti, learned counsel for the O.P. No. 2

submits that the case was instituted under the Negotiable Instruments Act.

She draws the attention of the Court to sub-section 2 of Section 142 of the

Negotiable Instruments Act, 1881. Referring to this Section, she submits that

it is crystal clear that branch of the Bank where payee or the holder in due

course, shall maintain the account, that place will be jurisdiction. This Act has

been amended on 15.06.2015 and the complaint case was filed in the year,

2016. She submits that at the time of filing of case in the year, 2016 that

amendment has already taken place. According to her, the Court at Jamshedpur

has no jurisdiction. To buttress her argument, she relied on judgment in the

case of " M/s Bridgestone India Pvt. Ltd. Vs. Inderpal Singh"

reported in 2015 (4) Crimes (SC) 583 wherein para 13, the Hon'ble

Supreme Court has held as under:-

"Since cheque No.1950, in the sum of Rs.26,958/-, drawn on the Union Bank of India, Chandigarh, dated 02.05.2006, was presented for encashment at the IDBI Bank, Indore, which intimated its dishonor to the appellant on 04.08.2006, we are of the view that the Judicial Magistrate, First Class, Indore, would have the territorial jurisdiction to take cognizance of the proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881, after the promulgation of the Negotiable Instruments (Amendment) Second Ordinance, 2015. The words "...as if that sub-section had been in force at all material times..." used with reference to Section 142(2), in Section 142A(1) gives retrospectively to the provision.

8. Learned counsel for the O.P. No. 2 advanced her argument by

submitting that it is well-settled law that where there is special law, general

provision does not apply. She further submits that the case was lodged for

dishonour of cheques which comes under the provision of Negotiable

Instruments Act. She submits that special provision also provide for proceeding

under the special provision. To buttress her argument, she relied on judgment n

the case of " Sharat Babu Digumarti Vs. Govt. of NCT of Delhi" reported

in 2016 0 Supreme (SC) 977 wherein par 32 the Hon'ble Supreme Court

has held as under:-

"32.The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention.

We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.

9. Relying on the aforesaid judgment, learned counsel for the O.P. No.

2 submits that the Special Act is there. Lastly, she submits that it is well-

settled provision that by way of mutual consent of the parties jurisdiction of

the Court cannot be settled. To buttress her argument, she relied on judgment

in the case of "Nitinbhai Sacvatilal Shah & Anr. Vs. Manubhai Manjibhai

Panchal" reported in 2012 1 Bankmann 467 wherein para 18 the Hon'ble

Supreme Court has held as under:-

"This is not a case of irregularity but want of competency. Apart from Section 326 (1) and 326 (2) which are not applicable to the present case in view of Section 326 (3), the Code does not conceive of such a trial. Therefore, Section 465 of the Code has no application. It cannot be called in aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one."

10. On these grounds, learned counsel for the O.P. No. 2 submits that there

is no illegality in the impugned order and the trial court has rightly passed the

impugned order.

11. Mr. Satish Kr. Keshri, learned counsel for the State submits that

complaint was filed at wrong place as the amendment has taken place on

15.06.2015 and in that view of the matter there is no illegality in the impugned

order.

12. In view of the aforesaid facts and considering the submission of the

learned counsel for the parties, the Court has gone through the material

available on record. It is admitted fact that the case was filed in the year, 2016

and amendment in section 142 N.I. Act has been made on 15.06.2015. Sub-

section 2 of Section 142 of N.I. Act is quoted here-in-below:-

"142(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 of 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."

13. From perusal of sub-section (2) of Section 142 N.I. Act, it is crystal

clear that branch of the bank where the payee or holder in due course as the

case may be, case is required to be filed. It is admitted fact that the

cheque in question was submitted in the bank in Adityapur within the district

of Seraikella-Kharswan and this fact has been admitted in para 6 of the

complaint petition. This is crystal clear that case was required to be filed in the

Court of Seraikella-Kharswan district. It is not a case that the complaint was

filed before the amendment. The case was filed after the said amendment

has already taken place. It appears that nowhere from any angle it can be said

that Jamshedpur is having jurisdiction at the time when complaint was filed.

It is admitted fact that Principal District & Sessions Judge has only allocated the

case to the concerned court which is having power for trial under the N.I. Act.

Once a case was assigned to a particular Judge it is within domain of the that

Judge to decide the case in accordance with law by passing any order even

after assignment there is no requirement to take permission of the head of the

institution. This argument of the learned senior counsel for the petitioner is

negated by this Court. Once it comes under the knowledge of the Court, the

Court has not having jurisdiction even the same has not been challenged by the

accused, the Court was well within the jurisdiction to come to the conclusion

that the Court is not having jurisdiction to proceed in the matter. This

argument of the learned senior counsel for the petitioner that jurisdiction was

not challenged by the accused at the earliest, is not accepted by this Court.

14. A plain reading of the provision of Section 465 Cr.P.C. clearly

suggests that Magistrate is not empowered by law, would be void and void

proceedings cannot be validated under section 465 Cr.P.C. as the case is

irregularity that may would have been regularize under the said Act by the

Court. This is not a case of irregularity. The Court is not having competency to

decide the case by way of Section 462 and 465 Cr.P.C. but proceeding cannot

be regularized. Argument of the learned senior counsel for the petitioner with

regard to Section 462 and 465 Cr.P.C. is negated by this Court. The concerned

Court has found that it has got no jurisdiction and on the ground of

jurisdiction case was dismissed.

15. In view of the aforesaid facts, no relief can be extended to the

petitioner and accordingly, this criminal miscellaneous petition is dismissed.

However, it is open to the petitioner to approach the competent Court of Law

having its jurisdiction. In the light of amendment in the N.I. Act, petitioner is at

liberty to explain delay before the concerned court.

(Sanjay Kumar Dwivedi, J.) Satyarthi/