Punjab-Haryana High Court
Kulwinder Singh vs State Of Punjab & Anr on 29 November, 2022
CRM-M-7505-2016 (O&M) and other connected cases -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
1. CRM-M-7505-2016 (O&M)
Kulwinder Singh ...Petitioner
Versus
State of Punjab and another ...Respondents
2. CRM-M-7541-2016 (O&M)
Kulwinder Singh ...Petitioner
Versus
State of Punjab and another ...Respondents
3. CRM-M-7549-2016 (O&M)
Kulwinder Singh ...Petitioner
Versus
State of Punjab and another ...Respondents
4. CRM-M-7540-2016 (O&M)
Kulwinder Singh ...Petitioner
Versus
State of Punjab and another ...Respondents
Date of decision : 29.11.2022
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present:- Mr. D. D. Singh, Advocate
for the petitioner/complainant in all the cases.
Mr. P. S. Pandher, AAG, Punjab.
None for respondent No. 2/accused.
ARVIND SINGH SANGWAN, J. (Oral)
This common order shall dispose of above mentioned four
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petitions as they are similar in nature.
Prayer in these petitions is for quashing of orders dated
04.12.2015, passed by the trial Court separately in four complaints*, vide
which the applications filed by the petitioner/complainant for revival of the
said complaints, under Section 138 of the Negotiable Instruments Act, 1881
(for short 'N. I. Act'), have been dismissed.
Brief facts of the case are that the petitioner/complainant has
filed aforesaid four complaints under Section 138 of the N. I. Act read with
Section 420 IPC against respondent No.2/accused on account of
dishonouring of some cheques drawn on ICICI Bank, Connaught Place
Branch, New Delhi.
It is further submitted that after the preliminary evidence was
recorded, the trial Court issue process against respondent No. 2/accused,
vide orders dated 28.07.2014, however, the accused did not put in
appearance before the Court.
Learned counsel for the petitioner further submits that in the
meantime, in the judgment rendered in Dashrath Rupsingh Rathod vs.
State of Maharashtra and another, 2014 (3) SCC (Criminal) 673, Hon'ble
Supreme Court held that the complaint filed under Section 138 of the N. I.
Act can be filed against the drawer of the cheque only before the Court,
within whose jurisdiction, the cheque was dishonoured by the drawer's
bank.
Learned counsel further submits that in terms of the aforesaid
judgment, the trial Court, vide orders dated 22.01.2015 (Annexure P-3)
returned the complaints to the petitioner/complainant for presentation before
the competent Court of jurisdiction, however, the original case files of the
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complaints were never handed over to the petitioner and in the meantime,
some amendments were made in Section 142 of the N. I. Act by adding
Sub-section 2 to Section 142 and as well as Section 142-A, which reads as
under:
"In the principal Act, section 142 shall be numbered as
subsection (1) thereof and after sub-section (1) as so
numbered, the following sub-section shall be inserted,
namely:-
"(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.".
4. In the principal Act, after section 142, the following
section shall be inserted, namely:-
"142A. (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.
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(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.
SEC.1] THE GAZETTE OF INDIA EXTRAORDINARY
5. (1) The Negotiable Instruments (Amendment) Second
Ordinance, 2015, is hereby repealed.
(2) Notwithstanding such repeal, anything done or any
action taken under the principal Act, as amended by the
said Ordinance, shall be deemed to have been done or
taken under the corresponding provisions
of the principal Act, as amended by this Act."
Learned counsel for the petitioner further submits that in the
light of the amendments made in the N. I. Act, the petitioner moved
application(s) before the trial Court for revival of the complaints as there
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was no adjudication on merits and the Court at Amritsar had the jurisdiction
to entertain and decide the complaints in view of the amended provisions of
the N. I. Act, however, the trial Court dismissed the said applications by
passing the following order:
"Heard. The present application has been moved by the
complainant for revival of the complaint which was
returned by the Id.Predecessor of this Court vide order
dated 22.01.2015 in view of the judgment of Hon'ble
Supreme Court Dashrath Rupsingh Kathod Vs. State of
Maharashtra & another decided on 1.8.2014. The
Id.Counsel for complainant has argued that though the
order was passed by Id.Predecessor of this Court but the
file was never taken by him for filing the same in the
competent Court in view of the order dated 22.1.2015.
However, it is well settled principle of law that the criminal
Court has no power to review of its own order which is
duly fortified by judgment of Hon'ble Supreme Court of
India in Adalat Prasad Vs. Roop Lal Jindal & others
decided on 25th August 2004. Now once the order has
already been passed by the Id. Predecessor of this Court,
this Court vests no power of deal with the present case and
the application filed by complainant for revival of the
complaint is hereby dismissed. Papers be consigned to
record room."
These petitions are pending since 2016. The service on
respondent No. 2/accused is complete, however, his counsel is not
appearing for the last two dates.
After hearing learned counsel for the petitioner and going
through the aforesaid amendments made in the N. I. Act, this Courts finds
that the impugned orders dated 04.12.2015, passed by the trial Court, are
not sustainable as in the light of said amendments and also in view of the
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judgment in Dashrath Rupsingh Rathod's case (supra), the Court of JMIC,
Amritsar, which has initially returned the complaints vide order dated
22.01.2015, has the jurisdiction to entertain and decide the complaints.
Accordingly, the present petitions are allowed and the
impugned orders dated 05.12.2015, passed by the trial Court in all the four
complaints, are set aside.
The complaints are remanded back to the trial Court/JMIC,
Amritsar to decide them on merits, in accordance with law.
The petitioner/complainant is directed to appear before the trial
Court on 19.12.2022.
Let a photocopy of this order be placed on the file of other
connected cases.
29.11.2022 (ARVIND SINGH SANGWAN)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
*
Criminal Complaint No. 7408 dated 28.07.2014,
1 filed under Section 138 of the N. I. Act read with
Section 420 IPC.
Criminal Complaint No. 202/2607 dated
2 28.07.2014, filed under Section 138 of the N. I.
Act read with Section 420 IPC.
Criminal Complaint No. 9159 dated 23.09.2014,
3 filed under Section 138 of the N. I. Act read with
Section 420 IPC.
Criminal Complaint No. 9138 dated 23.09.2014,
4 filed under Section 138 of the N. I. Act read with
Section 420 IPC.
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