TaxTMI 
TaxTMI 
2018 (4) TMI 620
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....ched the stage of Section 145(2) of The Negotiable Instruments Act, 1881 as the recording of evidence had not commenced, it was observed that the learned Trial Court lacks territorial jurisdiction over the present matter and thus the complaint was ordered to be returned to the complainant along with the affidavit by way of evidence and other original documents observing to the effect that the learned Trial Court did not have territorial jurisdiction over the matter, the petitioner seeks restoration of the same to its original stage and that the delay, if any, for filing the application for restoration / revival before the learned MM concerned be condoned. 2. The notice was issued to the respondents with respondent no. 1 arrayed on record being the State. The proceedings against the respondent no. 5 Mr. Ram Laljharia, Director of the respondent no. 1 company i.e. M/s. Yograj Infrastructure Ltd. have already been dismissed as withdrawn on 29.11.2017 in view of the submissions made on behalf of the petitioner. 3. The written submissions on behalf of the petitioner and on behalf of the respondents no. 2 to 5 had already been submitted before withdrawal of the case against the respond....
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....Court in Dashrath Rupsingh Rathod (Supra), it was observed by the learned Trial court that the impugned cheque was drawn upon and dishonoured by the Bank of India, Basant Lok, New Delhi located outside the jurisdiction of the South East District, Delhi and that the proceedings of that complaint had not till then reached the stage of Section 145(2) of The Negotiable Instruments Act, 1881 and that the recording of the evidence had not commenced and it was held that due to lack of territorial jurisdiction over the matter, the complaint was thus ordered to be returned to the complainant along with the affidavit by way of evidence and other original documents and the complainant was directed to file the certified photocopies of the complaint and aforesaid documents with the Ahlmad of the Court before receiving the originals thereof. Further it was directed vide order dated 14.05.2017 that the complainant was at liberty to file the complaint afresh before the Court of competent jurisdiction as per the directions of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod (Supra). 8. The petitioner has submitted further that the complainant i.e. the petitioner herein was thus to file the co....
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....t, 1881 as on the said date reads to the effect : - "142 Cognizance of offences. -Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) 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: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.]" 11. The Hon'ble Apex Court vide its judgment in Dashrath Rupsingh Rathod (Supra) vide paragraph 56 & 57 held : - "To sum up: (i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for disc....
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....be more than 38 lakhs by the Law Commission of India in its 213th Report. The result is that cases involving dishonour of cheque is in all major cities choking the criminal justice system at the Magistrate's level. Courts in the four metropolitan cities and other commercially important centres are particularly burdened as the filing of such cases is in very large numbers. More than five lakh such cases were pending in criminal courts in Delhi alone as of 1st June 2008. The position is no different in other cities where large number of complaints are filed under S.138 not necessarily because the offence is committed in such cities but because multinational and other companies and commercial entities and agencies choose these places for filing the complaints for no better reason than the fact that notices demanding payment of cheque amounts were issued from such cities or the cheques were deposited for collection in their banks in those cities. Reliance is often placed on Bhaskaran's case to justify institution of such cases far away from where the transaction forming basis of the dishonoured cheque had taken place. It is not uncommon to find complaints filed in different jurisdictio....
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....ection 142 of The Negotiable Instruments Act and the insertion of Section 142A to The Negotiable Instruments Act was made, which read as under : - "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. (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 o....
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....ew Delhi and thereafter filed the application seeking restoration /revival of the petition in view of the amendments to under Section 142 and to Section 142A of The Negotiable Instruments Act, 1881, which it was contended were not retrospectively applicable. Inter alia it was submitted on behalf of the respondents no. 2 to 4 that the delay in re-filing the complaint on 08.10.2015 had not been explained in as much as the complaint had not been filed afresh till 29.09.2015 and it was further submitted on behalf of the respondents that the complaint in any event had not been re-filed within a period of 30 days and thus there was no infirmity in the impugned order. 17. It has also been submitted on behalf of the respondents that there is no explanation put forth by the petitioner for the delay in submission of the application seeking revival of the petition. 18. Through the written submissions that have been submitted on behalf of the respondents inter alia it was submitted that the ordinance dated 15.06.2015 does not have retrospective effect and does not effect the position of law as detailed vide order dated 14.05.2015. 19. At the outset, it is essential to observe that the amend....
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....lowing 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:- A.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 14....
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....ny doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non-obstante clause in sub-section (1) of Section 142A. Likewise, any judgment, decree, order or direction issued by a Court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied, that the judgment rendered by this Court in Dashrath Rupsingh Rathod's case would also not nonsuit the appellant for the relief claimed. 12. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection....