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One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=766989 https://www.taxtmi.com/caselaws?id=766989 Dishonour of Cheque - prayer to transfer Criminal Case pending in the court of Judicial Magistrate Ist Class, Chandigarh (UT) to the court of Metropolitan Magistrate, Coimbatore, Tamil Nadu, essentially on the ground that no cause of action could be said to have arose for the bank to lodge the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - lack of territorial jurisdiction of the court in which the complaint is filed - exercise of powers under Section 406 of the Cr.P.C. to transfer the said complaint to the court having territorial jurisdiction to try the offence - expression that for the ends of justice, this Court can transfer any criminal case or appeal to any place. in Section 406 Cr.P.C. embraces in itself the lack of territorial jurisdiction of the court to try the offence under Section 138 N.I. Act. HELD THAT: -This court in the case of Yogesh Upadhaya and Another v. Atlanta Limited [ 2023 (2) TMI 884 - SUPREME COURT] had the occasion to consider the plea for transfer filed under Section 406 Cr.P.C. in connection with six complaint cases filed under Section 138 and 142 of the N.I. Act respectively. While considering the plea for transfer, the court had the opportunity to consider Section 142(2) contained in the statute book along with Section 142-A. Further, reliance placed on Dashrath Rupsingh Rathod v. State of Maharashtra, [ 2014 (8) TMI 417 - SUPREME COURT ], wherein it was held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located, i.e., where the cheque is dishonoured upon presentation and not where the complainant s bank is situated. The Court after examining the Statement of Objects and Reasons in the N.I. Amendment Act, 2015, stated that the insertion of Sections 142(2) and 142-A in the N.I. Act was a direct consequence of the judgment in Dashrath Rupsingh Rathod [ 2014 (8) TMI 417 - SUPREME COURT ]. Section 142(2) now makes it 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 came into force. The Court noted that the non obstante clause was already present in the original Section 142(1) and was not introduced by way of the amendments in the year 2015, along with Section 142(2). The non obstante clause merely has reference to the manner in which cognizance is to be taken in an offence under Section 138. The same must not be construed to mean that the power of this Court to transfer pending criminal proceedings under Section 406 CrPC stands abrogated thereby in respect of an offence under Section 138 of the NI Act. A case is transferred by virtue of the powers under Section 406 if there is a reasonable apprehension on the part of a party to a case that justice will not be done. There, however, must be reliable material from which it can be inferred that there are impediments that are interfering or likely to interfere, either directly or indirectly, with the cause of justice. A proceeding which is void under Section 461 cannot be saved by Section 462 - HELD THAT:- The focus of clause (l) of Section 461 18 is on the offender and not on the offence . If clause (l) had used the words tries an offence rather than the words tries an offender , the consequence might have been different - the jurisdiction of a criminal Court is normally relatable to the offence and in some cases, to the offender, such as cases where the offender is a juvenile (section 27) or where the victim is a women [the proviso to clause (a) of section 26]. But Section 461(l) focuses on the offender and not on the offence. The saving clause contained in Section 462 of the Code of 1973 is in pari materia with Section 531 of the Code of 1898. The transfer of cases under Section 406 Cr.P.C. may be allowed when there is a reasonable apprehension backed by evidence that justice may not be done and mere convenience or inconvenience of the parties may not by itself be sufficient enough to pray for transfer. The court has to appropriately balance the grounds raised in the facts and circumstances of each case and exercise its discretion in a circumspect manner while ordering a transfer under Section 406. In Maneka Sanjay Gandhi, it was held that as a general rule, it is the complainant who has the right to choose the forum that has jurisdiction over the subject matter and the courts do not interfere with such a right unless circumstances that hamper the ends of justice are brought to the notice of the court by the other party. Section 142 of the N.I. Act in clear terms, provides the complainant with the right to lodge a complaint, before a court, within whose jurisdiction, the branch of the bank where the cheque is delivered for collection, is situated. Therefore, the argument of the accused that another court might also be empowered to take cognizance of the matter under Section 142, since the cause of action arose within that jurisdiction, cannot by itself be a ground for seeking transfer under Section 406 of the Cr.P.C. A conjoint reading of Section 142(2)(a) along with the explanation thereof, makes the position emphatically clear that, when a cheque is delivered or issued to a person with liberty to present the cheque for collection at any branch of the bank where the payee or holder in due course, as the case may be, maintains the account then, the cheque shall be deemed to have been delivered or issued to the branch of the bank, in which, the payee or holder in due course, as the case may be, maintains the account, and the court of the place where such cheque was presented for collection, will have the jurisdiction to entertain the complaint alleging the commission of offence punishable under Section 138 of the N.I. Act. In that view of the position of law, the word delivered used in Section 142(2)(a) of the N.I. Act has no significance. What is of significance is the expression for collection through an account . That is to say, delivery of the cheque takes place where the cheque was issued and presentation of the cheque will be through the account of the payee or holder in due course, and the said place is decisive to determine the question of jurisdiction. For the purpose of transfer of any case or proceedings under Section 406 of the Cr.P.C., the case must fall within the ambit of the expression expedient for the ends of justice . Mere inconvenience or hardship that the accused may have to face in travelling from Coimbatore to Chandigarh would not fall within the expression expedient for the ends of justice . The case must fall within any of the five situations as narrated in para 49 of this judgment. It is always open for the petitioner accused to pray for exemption from personal appearance or request the Court that he may be permitted to join the proceedings online. Conclusion - No case is made out for transfer of the proceedings in question under 406 CrPC. Petition dismissed. Case-Laws Indian Laws Thu, 06 Mar 2025 00:00:00 +0530