Jharkhand High Court

Sandeep Kumar Jaiswal vs The State Of Jharkhand on 3 May, 2023

                                         1                        Cr.M.P. No.417 of 2023




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No. 417 of 2023


         Sandeep Kumar Jaiswal, aged about 43 years, son of Rajendra Prasad,
         proprietor of M/s Star Seven Computers, resident of Ist Floor, Krishna
         Market, Tiwari Gali, Bank More, Near Shanti Bhawan, P.O. and P.S. Bank
         More, Dist. Dhanbad
                                                 ....              Petitioner


                                       Versus

         1. The State of Jharkhand
         2. ICICI Bank Limited having its registered office at ICICI Tower, Near
            Chakli Circle, Old Bandra Road, Barodara, Gujarat and having its
            Corporate office at ICICI Bank Tower, Bandra Kurla Complex, Bandra
            (East) Mumbai and having its RAPG office at 3rd Floor, Amrawati
            Complex, Lalpur, Ranchi, P.O. and P.S. Lalpur, Dist. Ranchi through
            its authorized officer Mr. Abhash Adihikari, son of Ramesh Chandra
            Adihikari, House No. 43, New A.G. Colony, Kadru, Doranda, P.O. &
            P.S. Doranda, Dist. Ranchi
                                                ....                 Opp. Parties

                                       PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                       .....

For the Petitioner : Mr. Jitendra Kumar Pasari, Advocate For the State : Mrs. Priya Shrestha, Spl. P.P.

For O.P. No.2 : Mr. Mukesh Kr. Sinha, Advocate .....

By the Court:-

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 482 Cr.P.C. with a prayer

for quashing the entire criminal proceeding including the order

dated 09.12.2022 whereby and where under, cognizance has been

taken against the petitioner for having committed the offence

punishable under Section 138 of Negotiable Instrument Act in

connection with Complaint Case No. 9095 of 2022, pending in the

court of Judicial Magistrate 1st Class, Ranchi.

3. The brief facts of the case is that the petitioner took the loan from

the opposite party no.2-Bank and issued a cheque of

Rs.49,00,000/- drawn on the opposite party no.2-Bank for

liquidation of the loan amount. The said cheque was presented by

the opposite party no.2-Bank through its branch at Ranchi but the

cheque was dishonoured. Thereafter, the bank issued notice dated

06.08.2022 which was sent by post on 09.08.2022 and delivered to

the accused-petitioner on 17.08.2022. The petitioner promised to

pay the said Rs.49,00,000/- but did not pay the same. Hence, the

complaint was filed and the learned Magistrate vide order dated

09.12.2022 has taken cognizance of the said offences.

4. Mr. Jitendra Kumar Pasari, learned counsel for the petitioner

submits that the complainant has suppressed the material facts

and did not disclose as to from which branch of ICICI Bank

Limited, the petitioner has taken the loan amount. It is next

submitted by the learned counsel for the petitioner that the

petitioner was granted overdraft facility by ICICI Bank, Shastri

Nagar Branch, Bank More, Dhanbad. It is then submitted by the

learned counsel for the petitioner that the business of the

petitioner was affected because of a fire incident and the Covid-19

Pandemic. It is then submitted by the learned counsel for the

petitioner that the petitioner had no intention not to pay the

amount of the cheque. It is further submitted by the learned

counsel for the petitioner that authorized officer of ICICI Bank has

issued notice under Section 13 (2) of Securitization and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (SARFAESI Act) against the petitioner on

13.06.2022 with a direction to pay the due loan amount within a

period of 60 days. It is then submitted by the learned counsel for

the petitioner that the cheque was handed over by the petitioner

on the pressure made by the said branch for the payment of the

loan knowing pretty well that the petitioner was suffering from

problem. It is further submitted by the learned counsel for the

petitioner that SARFAESI Appeal No. 133 of 2022 is pending

before the Debt Recovery Tribunal, Ranchi. It is next submitted by

the learned counsel for the petitioner that the courts at Ranchi had

no jurisdiction to entertain the complaint as no part of the cause of

action has arose at Ranchi. In support of his contention, learned

counsel for the petitioner relied upon the judgment of Hon'ble

Supreme Court of India in the case of Yogesh Upadhyay & Anr.

vs. Atlanta Limited reported in 2023 SCC OnLine SC 170. Hence,

it is submitted that the entire criminal proceeding including the

order dated 09.12.2022 be quashed.

5. Learned Special P.P. and the learned counsel for the opposite

party no.2 on the other hand vehemently opposes the prayer to

quash the entire criminal proceeding including the order dated

09.12.2022. It is jointly submitted by the learned Spl. P.P. and the

learned counsel for the opposite party no.2 drawing attention of

this Court to paragraph no. 36 which is the cheque return memo

issued by the ICICI Bank, Ranchi Branch to its consumer that from

the same, it is crystal clear that the cheque was delivered for

collection through the account of the Complainant Bank with the

ICICI Bank, Ranchi branch where the payee of the cheque i.e. the

complainant-opposite party no.2 has been having an account. So,

it is submitted that the court at Ranchi had jurisdiction to

entertain the complaint. It is then submitted that as all the

ingredients required to constitute the offence punishable under

Section 138 of Negotiable Instrument Act, i.e. issue of the cheque,

dishonour of the cheque, failure of the drawer of the cheque to

pay the amount of the cheque even after notice has been

undisputed, hence, no illegality has been committed by the

learned Magistrate in taking cognizance for the offence

punishable under Section 138 of N.I. Act. It is further submitted

that the fire incident claim to have taken place in the premises of

the petitioner or the Covid 19 pandemic or for that matter the

poor financial condition of the petitioner, certainly cannot be a

ground for quashing the entire criminal proceeding. Hence, it is

submitted that this appeal being without any merit be dismissed.

6. Having heard the submissions made at the Bar and after

going through the materials in the record, it is pertinent to

mention here that prior to the amendment of the Section 142 of the

Negotiable Instrument Act by Section 3 of Act 26 of 2015 with

retrospective effect from 15.06.2015 in the case of Dashrath

Rupsing Rathod vs. State of Maharashtra and Anr. reported in

(2014) 9 SCC 129, a three Judge Bench of the Hon'ble Supreme

Court observed that the return of the cheque by the drawee bank

would alone constitute commission of the offence under Section

138 of the Negotiable Instrument Act, 1881 and would indicate the

place where the offence is committed but as has been held by the

Hon'ble Supreme Court of India in the case of Yogesh Upadhyay

& Anr. vs. Atlanta Limited (supra) after the amendment of

Section 142 (2) of the Negotiable Instrument Act, 1881 vide Section

3 of the Act 26 of 2015 which reads as under :-

142. Cognizance of offences.--

[(1)] xxxx xxxx xxxx xxxx [(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. (Emphasis supplied)

It is crystal clear that the legal position obtaining now is that the

court within whose local jurisdiction the cheque is delivered for

collection through an account, the branch of the bank where inter

alia the payee may be maintaining the account is situated, is the

jurisdiction to inquire into and try the case. Hence, the court at

Ranchi has jurisdiction to enquire into and try the offence under

Section 138 of Negotiable Instrument Act, 1881, is the cheque in

question was delivered for collection of through the bank account

of the complainant-opposite party no. 2 bank at Ranchi. In this

respect, it is relevant to refer to paragraph nos. 2 and 13 of the case

of Yogesh Upadhyay & Anr. vs. Atlanta Limited (supra) which

reads as under:-

"2. Xxxx The first two cheques that came to be dishonoured were presented by the respondent company through its bank at Nagpur, Maharashtra. The first two complaint cases were accordingly filed before the Courts at Nagpur, Maharashtra. The remaining four cheques were thereafter presented by the respondent company through its bank at New Delhi and in consequence, those complaint cases were filed before the Dwarka Courts, New Delhi.

13. Therefore, institution of the first two complaint cases before the Courts at Nagpur is in keeping with the legal position obtaining now. Xxxxxxxxxx." (Emphasis supplied)

7. Now coming to the facts of the case, as the cheque was delivered

for collection through a bank account of the complainant-opposite

party no. 2 bank, the branch of the bank where the payee

maintains the account is situated at Ranchi hence, this Court has

no hesitation in holding that the court at Ranchi has been vested

with the jurisdiction to inquire into and try the offence punishable

under Section 138 of Negotiable Instrument Act, 1881 in this case.

8. The occurrence of fire or Covid-19 Pandemic or the fact that

SARFAESI Appeal No. 133 of 2022 is pending is certainly is not a

ground to absolve the petitioner of the offence punishable under

Section 138 of Negotiable Instrument Act, for dishonour of the

cheque because of insufficiency of funds in the concerned bank