C482/1537/2014 of M/S SHRI RAM SOLVENT EXTRACTION PVT.LTD Vs SHIVAM KHADYA BHANDAR

Reserved

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALCriminal Misc. Application No. 1537 of 2014

M/s Shri Ram Solvent Extraction Pvt. Ltd. Kashipur Road, Jaspur, District Udham Singh Nagar

...... Applicant

Shivam Khadya Bhandar, Firozpur Pavaran & another

..... Respondents

Present:-

Mr. Mukesh Rawat, Advocate holding brief of Mr. Shailendra Singh Chauhan, Advocate for the petitioner. Mr. Sudhir Kumar, Advocate for the respondents.

JUDGMENT

Hon’ble Ravindra Maithani, J.

The challenge in this petition is made to the order dated 10.10.2014 passed in Criminal Case No. 1192 of 2014, M/s Shri Ram Solvent Extraction Pvt. Ltd. V. Shivam Khadya Bhandar and another, by the court of Special Judicial Magistrate, Kashipur, District Udham Singh Nagar (“the case”).

2. Heard learned counsel for the parties and perused the record.

3. The record reveals that the petitioner filed complaint under Section 138 of the Negotiable

Instruments Act, 1881 (for short, “the Act”) against the respondents, which is the basis of the case. The case was fixed for hearing on summoning, but on 10.10.2014 in view of the judgment in the case of Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, the court observed that since the cheque was drawn in the State Bank of India, Branch Faizabad, the court at Kashipur District Udham Singh Nagar may not have jurisdiction to try the case. This order is impugned.

4. Learned counsel for the petitioner would submit that subsequent to the judgment in the case of Dashrath Rupsingh Rathod (supra), amendments were made in the Act and Section 142-A has been added. It is argued that this Section has been given retrospective effect and now the Court, within whose local jurisdiction the cheque is delivered for collection, may also inquire and try an offence under Section 138 of the Act.

5. In support of his contention, the learned counsel for the petitioner has placed reliance in the principle laid down by the Hon’ble Supreme Court in the case of Bridgestone India Private Limited v. Inderpal Singh, (2016) 2 SCC 75. It is argued that the impugned

order deserves to be set aside and the court at Kashipur may be directed to proceed with the case.

6. Learned counsel appearing for the respondents very fairly conceded that the impugned order deserves to be set aside in view of the subsequent legal position and the court may be directed to try the case.

7. In fact, in the case of Dashrath Rupsing Rathod (supra), the Hon’ble Supreme Court, inter alia, directed that the jurisdiction of the court to try the case under Section 138 of the Act will be determined by reference to the place where the cheque is dishonoured. After the decision in the case of Dashrath Rupsingh Rathod (supra), certain amendments were incorporated in Section 142 (2) of the Act and Section 142-A has also been added. These Sections are as hereunder:-

“142. Cognizance of offences.— (1)…………

(2) The offence under section 138 shall be inquired into and tried only by 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 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.”

“142-A. Validation for transfer of pending cases.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) 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 complaint against the drawer of 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.”

8. Section 142-A has been given retrospective

effect, which is clear by the last words in sub-section (1) of Section 142-A, which are “shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times”.

9. This aspect has been discussed by the Hon’ble Supreme Court in the case of Bridgestone India Private Limited (supra). The Hon’ble Supreme Court observed that “The words “…as if that sub-section had been in force at all material times..” used with reference to Section 142, in Section 142-A(1) gives retrospectivity to the provision.”

10. In view of the settled legal position, as stated above, the instant petition deserves to be allowed.

11. The petition is allowed. The impugned order dated 10.10.2014 is set aside. The court below shall proceed to hear the case. The parties are directed to appear before the court of Special Judicial Magistrate, Kashipur, Udham Singh Nagar on 16.06.2022.

(Ravindra Maithani, J.)

09.05.2022