Rajasthan High Court - Jodhpur

Dinesh Gattani vs State Of Rajasthan on 23 May, 2023

Bench: Manoj Kumar Garg

[2023/RJJD/013875] (1 of 10) [CRLMP-7406/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 7406/2022

Hitendra Puri @ Pintu Goswami S/o Devendra Puri, Aged About 38 Years, B/c Goswami, R/o Near Soregraon Ki Neem, Uparlapada, Chittorgarh (Raj.)

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Dinesh S/o Shri Madan Lal Chaturvedi, Aged About 66 Years, R/o Minesh Vihar Colony, Near Raj Patel School, District Chittorgarh (Raj.)

----Respondents

For Petitioner(s) : Mr. D.N. Yadav For Respondent(s) : Mr. M.S. Bhati, PP Mr. Kalu Ram Bhati Mr. R.S. Mankad

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

Order Reserved on : 04/05/2023 Date of pronouncement: 23/05/2023

Instant misc. petition under Section 482 Cr.P.C. has

been filed by the petitioner against the order dated

17.09.2022 passed by learned Additional Sessions Judge No.2,

Chittorgarh whereby, the learned Additional Sessions Judge

upheld the order dated 04.10.2021 passed by Special Judicial

Magistrate (NI Act Cases) by which learned Magistrate took

cognizance under Section 138 of N.I. Act against the petitioner

so also the administrative order dated 22.04.2022 passed by

District and Sessions Judge, Chittorgarh transferring the

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complaint case to the court of Additional Chief Judicial

Magistrate No.2, Chittorgarh.

Brief facts of the case are that the

complainant/respondent no.2 filed a criminal complaint on

04.01.2021 against the petitioner for offence under Section

138 of N.I. Act before the learned Special Judge (N.I. Act

Cases), Chittorgarh stating therein that since the petitioner

was in dire need of money, the complainant extended a loan

of Rs. 5,00,000/- and in lieu of repayment of loan, the

petitioner gave a cheque in the sum of Rs. 5,00,000/- dated

25.12.2020 drawn on State Bank of India Branch, Chittorgarh.

It was alleged that when the complainant presented the said

cheque for realization, the same was dishonoured with the

remark "insufficient funds". Thereafter, the complainant gave

a legal notice on 11.03.2021 and after stipulated period of 30

days, the complainant presented the complaint before the

learned Special Judge, (NI Act Cases), Chittorgarh.

The Special Judge (N.I. Act Cases), Chittorgarh took

cognizance on 04.10.2021 for offence under Section 138 N.I.

Act and directed issue of summons to the petitioner. During

pendency of the service of summons, the learned District

Judge vide order dated 22.04.2022 transferred the complaint

from court of Special Judge (N.I. Act Cases), Chittorgarh to

the court of Additional Chief Judicial Magistrate, Chittorgarh

who thereafter issued warrant of arrest against the petitioner.

The petitioner challenged the said order before the court

of District and Sessions Judge, Chittorgarh by way of revision

petition, which was transferred to the court of Additional

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District and Sessions Judge No.2, Chittorgarh. Learned

Additional District and Sessions Judge No.2, Chittorgarh vide

order dated 17.09.2022 dismissed the revision petition on the

ground that District and Sessions Judge got the powers under

Section 408 Cr.P.C. to transfer the complaint from the court of

Special Judge (NI Act Cases), Chittorgarh to the court of

Additional Chief Judicial Magsitrate, Chittorgarh.

Counsel for the petitioner argued that impugned order

dated 17.09.2022 passed by the learned Additional Sessions

Judge so also the action of the learned District Judge

transferring the complaint from the court of Special Judge (NI

Act Cases), Chittorgarh to the court of Additional Chief Judicial

Magsitrate No.2, Chittorgarh vide order dated 22.04.2022 are

against the mandatory provisions of Section 142 (2) and 142-

A of the N.I. Act as the transferee Court was not having the

jurisdiction or legal right to issue arrest warrant and try the

case. It is argued that the finding of the learned Additional

Sessions Judge is also erroneous that the District Judge has

got powers under Section 408 Cr.P.C. to transfer the

complaint from Special Judge (NI Act Cases), Chittorgarh to

the court of ACJM No.2, Chittorgarh. According to counsel for

the petitioner, as per Section 142A, by way of Cr.P.C

provisions or any judgment, decree, order or direction of any

court, complaint case cannot be transferred to any other Court

not having the jurisdiction to try the case. It is further argued

that the order dated 22.04.2022 is also a very cryptic order

without assigning any reason for transfer of case from Special

Judge (NI Act Cases), Chittorgarh to the court of ACJM No.2,

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Chittorgarh. Learned counsel relied upon decision of Hon'ble

Courts in the case of M/s. Bridgestone India Pvt. Ltd. v.

Inderpal singh 2016(1) Civil Court Cases 341 (S.C.), M/s.

Himalaya Self Farming Group And Anr. v. M/s. Goyal Feed

Suppliers 2020(4) Civil Court Cases 031 (S.C.), Ilakkia Raja v.

T. Umamaheswaran 2021(2) Civil Court Cases 371 (MADRAS)

in K. Hanumanthappa v. K.B. Nagaraj reported in (2017) 3

AIR Kar 723, the Hon'ble High Court observed that the

administrative orders and the remand order made in the

earlier proceedings cannot prevail over the statutory

provisions which requires the matter to be dealt with only by

the court having jurisdiction in terms of Section 142A(2) of the

Act. It is thus, prayed that the misc petition may be allowed

and the order taking cognizance against the petitioner may be

quashed and set aside.

Per contra, Counsel for the respondent vehemently

opposed the prayer of counsel for the petitioner and submitted

that the learned Sessions Judge vide order dated 22.04.2022

transferred the case from the court of Special Judicial

Magistrate, N.I. Act Cases, Chittorgarh to the court of

Additional Chief Judicial Magistrate, No.02 Chittorgarh. In this

connection, it is noteworthy that in Section 408 of the Code

Criminal Procedure, the provision of powers of the Sessions

Judge to transfer cases and appeals has been given. Section

408(1) provides that whenever it appears to the Sessions

Judge that it is expedient for the end of justice to make an

order under this sub- section, he may order that any particular

case be referred to a Criminal Court in his Division of Session

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be transferred to another Criminal Court. Thus, the learned

Sessions Judge while exercising powers under the said

provision, transferred the case to the Court of Additional Chief

Judicial Magistrate, No.2 Chittorgarh. Therefore, in the light of

the above legal provisions, the impugned order passed by the

learned Addl. Sessions Judge No.2 is not liable to be

interfered. Therefore, the Criminal Misc. Petition may be

dismissed.

I have heard learned counsel for the parties and carefully

gone through the material on record.

In the first instance, it is relevant to refer to Section 142

of the Negotiable Instrument Act, 1881, titled 'Cognizance of

Offence', provided that, notwithstanding anything contained in

the Code of Criminal Procedure, 1973, no Court shall take

cognizance of an offence punishable under Section 138 except

on a complaint in writing made by the payee or, as the case

may be, the holder in due course of the cheque; such

complaint is made within one month of the date on which the

cause of action arises under clause(c) of the proviso to section

138; and no Court inferior to that of a Metropolitan Magistrate

or a Judicial Magistrate of the First Class shall try an offence

punishable under Section 138.

Further section 142(2) was inserted in the Negotiable

Instrument Act, 1881 along with Section 142-A. Section

142(2) provides that;

[(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

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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.] 142A Validation for transfer of pending cases

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.

On the reading of the provision of the Act, it is clear that

the jurisdiction to try such an offence would vest only in the

Court within whose jurisdiction the branch of the Bank where

the cheque was delivered for collection, through the account of

the payee or holder in due course, is situated. The newly

inserted Section 142-A further clarifies this position by

validating the transfer of pending cases to the Courts

conferred with such jurisdiction after the amendment.

However, the contention that the non obstante clause in

Section 142(1) of the Negotiable Instrument Act, 1881 would

override Section 408 of the Code of Criminal Procedure and it

would not be permissible for Sessions Court to transfer the

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said case, in exercise of power thereunder, is not tenable. The

power of Sessions Court to transfer pending criminal

proceedings under section 408 of the Code of Criminal

Procedure does not stand abrogated thereby in respect of

offences under Section 138 of the Negotiable Instrument Act,

1881. Hon'ble Apex Court in the case Yogesh Upadhyay And

Anr. v. Atlanta Limited (Transfer Petitions (Criminal) Nos. 526-

527/2022 decided on 21.02.2023) has held that

notwithstanding the non obstante clause in Section 142(1) of

the N.I. Act, 1881, the power of Apex Court to transfer

criminal cases under Section 406 of Cr.P.C. remains intact in

relation to offences under Section 138 of the N.I. Act, 1881, if

it found expedient for the end of justice.

The observation made by the Hon'ble Apex Court in the

case Yogesh Upadhyay And Anr. v. Atlanta Limited (supra)

read 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

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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."

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Thus, in the light of aforesaid observation, the power of

Sessions Court to transfer criminal cases under Section 408

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.

So far as the judgments cited by counsel for the

petitioner are concerned, the same relates to territorial

jurisdiction for initiating proceedings under Section 138 of the

N.I.Act and same does not help the petitioner.

In the light of aforesaid discussion, the order dated

17.09.2022 passed by learned Additional Sessions Judge No.2,