CRL.M.C./5081/2018 of SUNIL MANTRI Vs MAHARASHTRA SAVINGS & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%Date of decision: 19[th]September, 2023

+CRL.M.C. 5081/2018 & CRL.M.A. 33563/2018 (stay)

SUNIL MANTRI..... Petitioner

Through:Mr.P.N. Ravinddran, Senior Advocatewith Mr.M.K.Ghosh, Ms.Tina Gargand Mr.Amrit B.Mohanty, Advocates.with Mr.M.K.Ghosh, Ms.Tina Gargand Mr.Amrit B.Mohanty, Advocates.

versus

MAHARASHTRA SAVINGS & ANR..... Respondents

Through:Mr.Pankaj Kumar Singh,Mr.Gurmeher S. Sistani and Mr.BehDaniel Mathew, Advocates for R-1.Mr.Rishi Manchanda StandingMr.Gurmeher S. Sistani and Mr.BehDaniel Mathew, Advocates for R-1.Mr.Rishi Manchanda Standing

Counsel along with Siddharth MullickAdvocate for the official liquidatorR-2.Advocate for the official liquidatorR-2.

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

AMIT BANSAL, J. (Oral)CRL.M.C. 5081/2018

1.The present petition has been filed impugning the order dated 31[st]July, 2018, passed by the learned Additional Sessions Judge (ASJ), SaketDistrict Courts in Criminal Revision No. 204191/2016.

2.Vide the aforesaid impugned order, the revision petition filed onbehalf of the respondent no.1/complainant was allowed and the order dated22[nd]January, 2016, passed by the learned Metropolitan Magistrate (MM),

Signature Not Verified

CRL.M.C. 5081/2018

Saket District Courts was set aside.

3.Brief facts leading to the present petition are as under: -

a.The accused company, of which the petitioner herein was director,issued cheque dated 1[st]September, 2013, of Rs.13,88,00,000/- drawn onDena Bank, Mumbai to the respondent no.1. The respondent no.1 presentedthe said cheque for payment at Syndicate Bank, New Delhi, however, thesame was returned by the bank stating that the payment for the cheque hasbeen stopped by the company.

b.Following this, the respondent no.1 filed complaint before thelearned MM in which the petitioner was arrayed as an accused under Section138 of the Negotiable Instruments Act, 1881 (NI Act) on 11[th]October, 2013.

c.On 1[st]August, 2014, the Supreme Court pronounced its judgment inDashrath Rupsingh Rathod v. State of Maharashtra & Anr., (2014) 9 SCC129, and held that the courts within whose jurisdiction the cheque had beendishonoured by the bank on which it is drawn, would be the competentcourts of jurisdiction for entertaining complaints under Section 138 of the NIAct. The Supreme Court further directed that all pending complaints filed ina court not having jurisdiction would be returned back to the complainantand refiled within 30 days of their return before the court of appropriatejurisdiction.

d.In view of the aforesaid judgment in Dashrath Rupsingh Rathod(supra), the learned MM, vide order dated 21[st]August, 2014, returned thecomplaint filed by the respondent no.1 and directed that the same be filedbefore the court of competent jurisdiction within 30 days.

e.On 15[th]June, 2015, an ordinance, being the Negotiable Instruments

Signature Not Verified

(Amendment) Ordinance, 2015 (Ordinance) was promulgated wherein,Section 142(2) and Section 142A were inserted in the NI Act. In terms of thenewly inserted Section 142(2), the jurisdiction under Section 138 of the NIAct was vested in the court where the cheque was delivered for collectionthrough the account of the payee. As per the newly inserted Section 142A,all cases filed under Section 138 of the NI Act were to be transferred to thecourt of appropriate jurisdiction under Section 142(2) of the NI Act.

f.In view of the aforesaid amendment, the respondent no.1 filed anapplication for restoration of the complaint on 20[th]October, 2015, whichwas dismissed by the learned MM vide order dated 22[nd]January, 2016, asthe same was not filed within 30 days.

g.The respondent no.1 filed revision petition against the aforesaidorder of the learned MM, which was allowed by the learned ASJ vide theimpugned order dated 31[st]July, 2018.

4.Counsel for the petitioner submits that in terms of the judgment of theSupreme Court in Dashrath Roopsingh Rathod (supra) and as per thedirection of the learned MM dated 21[st]August, 2014, since the respondentno.1 had failed to re-file its complaint within 30 days before the court ofappropriate jurisdiction at Mumbai, there was no complaint pending in anycourt in terms of Section 142A introduced by the aforesaid Ordinance on15[th]June, 2015.

5.Counsel for the petitioner further submits that no valid reasons weregiven on behalf of the respondent no.1 to file the restoration application aftera delay of more than one year and therefore, there is no infirmity in the orderthat was passed by the learned MM dismissing the application of the

Signature Not Verified

respondent no.1.

6.Per contra, the counsel appearing for the respondent no.1 submits thatthe present petition is fully covered in its favour by the judgments passed bythe Coordinate Benches of this Court in (i) Pankaj Garg v. State (Govt. ofNCT of Delhi) and Ors., 2015 SCC OnLine Del 12810, and (ii) LiugongIndia Pvt. Ltd. v. State (Govt. of NCT of Delhi) and Ors., 2018 SCCOnLine Del 8322.

7.I have heard the parties and perused the material on record.

8.The Supreme Court in Bridgestone India Private Limited v. InderpalSingh, (2016) 2 SCC 75, has observed that the provisions of Section 142Aof the NI Act are retrospective in nature. Therefore, the judgment inDashrath Rupsingh Rathod (supra) would not come in the way of territorialjurisdiction vesting in courts where the cheque was deposited by the payee.

9.In Pankaj Garg (supra), the Coordinate Bench of this Court has alsoobserved that the aforesaid amendments introduced by the Ordinance areapplicable retrospectively and the stage of the case would remain the sameas was before the decision of the Supreme Court in Dashrath RupsinghRathod (supra).

10.The facts in Pankaj Garg (supra) are very similar to the facts in thepresent case in as much as the learned ASJ in Pankaj Garg (supra) hadallowed the revision filed on behalf of the complainant therein. In the saidcase also, the complainant had not taken any steps to take back thecomplaint and file it with the competent court having jurisdiction as per thejudgment in Dashrath Rupsingh Rathod (supra).

11.The relevant observations in Pankaj Garg (supra) are set out below: -

Signature Not Verified

“12.The amendment in question in applicable retrospectively.The stage of the cases shall remain same as was before the caseof Dashrath Rupsingh Rathod (supra). Therefore, keeping inview the above ordinance such complaint cases which werereturned to the complainant on account of lack of territorialjurisdiction for the reason of location of the bank of theaccused/petitioner outside the territorial jurisdiction of the Courtare bound to be tried by the said Court.”

12.The judgment of the Supreme Court in Bridgestone India PrivateLimited (supra) and the judgment of the Coordinate Bench in Pankaj Garg(supra) were followed by the judgment of another Coordinate Bench of thisCourt in Liugong India (supra), where it was held that the provisions ofSection 142(2) of the NI Act introduced by the aforesaid Ordinance areretrospective in nature and the delay in filing the application for restorationof the complaint was allowed.

13.The relevant observations in Liugong India (supra) are set out below:-“21.The verdict of this Court in the case titled as PankajGarg v. State (Govt. of NCT of Delhi) & Anr. dated 13.10.2015in Crl. M.C. 4239/2015 is to the similar effect and it is alsosignificant that in this case the condonation of delay by therevisional Court for taking up the matter by the Court which hasjurisdiction to continue with the proceedings in terms of theCourt which has jurisdiction to continue with the proceedings interms of the amended Section 142 of the Negotiable InstrumentsAct, 1881, was condoned. Reliance was also placed on behalf ofthe petitioner on the verdict of the Hon’ble Division Bench of theKerala High Court in case titled as Binoy K. Mathew v. GodleyDev Joh, MANU/KE/1573/2015: 2015(4) Civil Court Cases 016(Kerala (DB) whereby also it was directed that the complaintswere allowed to be presented in the respective Courts where theywere originally filed in view of the amendment.“21.The verdict of this Court in the case titled as PankajGarg v. State (Govt. of NCT of Delhi) & Anr. dated 13.10.2015in Crl. M.C. 4239/2015 is to the similar effect and it is alsosignificant that in this case the condonation of delay by therevisional Court for taking up the matter by the Court which hasjurisdiction to continue with the proceedings in terms of theCourt which has jurisdiction to continue with the proceedings interms of the amended Section 142 of the Negotiable InstrumentsAct, 1881, was condoned. Reliance was also placed on behalf ofthe petitioner on the verdict of the Hon’ble Division Bench of theKerala High Court in case titled as Binoy K. Mathew v. GodleyDev Joh, MANU/KE/1573/2015: 2015(4) Civil Court Cases 016(Kerala (DB) whereby also it was directed that the complaintswere allowed to be presented in the respective Courts where theywere originally filed in view of the amendment.

Signature Not Verified

Digitally Signed By:DINESHKUMARSigning Date:25.09.202312:49:25

22.The submissions made thus on behalf of the respondentsNo. 2 to 4 qua the aspect of non-retrospective applicability of theamended provision of The Negotiable Instruments Act, 1881cannot be accepted in view of the verdict of this Court in PankajGarg (Supra) and in view of the verdict of the Hon'ble ApexCourt in case titled as Bridgestone India Pvt. Ltd. (Supra). Thusin view of the retrospective applicability of the provisions ofSection 142(2) of The Negotiable Instruments Act, 1881 in viewof the Negotiable Instruments (Amendment) Act, 2015, the delayin filing the application for restoration/revival before the MMconcerned in the South East District, Delhi is condoned to avoidfailure of justice.”

14.The reliance placed by the petitioner on the judgment of the HighCourt of Chhattisgarh in M/s A.K.R. Transport v. M/s Kamakshi Shipping,2015 SCC OnLine Chh 177, is misplaced as the said judgment was deliveredprior to the judgment of the Supreme Court in Bridgestone India PrivateLimited (supra).

15.In the present case, the learned ASJ has correctly placed reliance onthe judgment in Pankaj Garg (supra) to hold that the complaint filed by therespondent no.1 herein had to be taken as pending before the Trial Court inlight of the retrospective operation of the aforesaid Ordinance. Further, theexplanation given by the respondent no.1 in not taking back the complaintand not filing the same before the courts in Mumbai was accepted and thedelay in filing the restoration application was correctly allowed.

16.In view of the discussion above, there is no infirmity in the impugnedorder passed by the learned ASJ.

17.The present petition is dismissed.

AMIT BANSAL, J.

SEPTEMBER 19, 2023/rt

Signature Not Verified