that the learned Magistrate has wrongly refused to exercise the
jurisdiction vested in him by law as well as pursuant to order passed by
Apex Court. By referring the printed endorsement on cheques in
question, the learned Counsel submitted that though the cheques in
question are drawn from account of respondent No. 2 with Bank of
India, Branch at Angol Road, Belgaum, Karnataka, the cheques are
payable from all the branches of Bank of India within the Country. It
is, therefore, contended that as the cheques were presented for
realization and encashment to Bank of India, Branch at Borivali, and
same were dishonoured for want of sufficient fund in the account of
respondents No. 2, the said Branch of Bank of India can very well be
treated as Drawee Bank and the presentation of the complaint was fully
justified.
6. In my view, the contention raised by learned Counsel for
the applicant to decide the correctness of the order passed by learned
Metropolitan Magistrate requires no consideration for the sole reason
that, pending disposal of this application, the Government of India has
issued the Ordinance on dt. 15/6/2015. By the ordinance issued, the
Government of India has amended the provisions of NI Act, 1881 with
immediate effect. The relevant provisions of the Negotiable
Instruments (Amendment) Ordinance, 2015 read as under :
3. In the principal Act, section 142 shall be numbered as subsection
(1) thereof and after subsection (1) as so numbered, the
following subsection 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:—
‘‘142A. (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 or any judgment, decree, order or
directions of any court, all cases arising out of section 138 which
were pending in any court, whether filed before it, or transferred to
it, before the commencement of the Negotiable Instruments
(Amendment) Ordinance, 2015 shall be transferred to the court
having jurisdiction under subsection (2) of section 142 as if that
subsection had been in force at all material times.
(2) Notwithstanding anything contained in subsection (2) of
section 142 or subsection (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 subsection
(2) of section 142 or the case has been transferred to that
court under subsection (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.
In view of the above mentioned amendment to Section 142
of NI Act, the order impugned deserves to be quashed and complaint
needs to be restored to the file of Metropolitan Magistrate, 43rd Court,
Borivali, Mumbai.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 982 OF 2014
Shah Brothers Ispat Pvt. Ltd.,
VERSUS
State of Maharashtra
CORAM : V. L. ACHLIYA, J.
PRONOUNCED ON : 21/07/2015
Citation: 2016 ALLMR(CRI)2490
2. Being aggrieved by order dated 12/09/2014 passed by
learned Metropolitan Magistrate, 43rd Court, Borivali, Mumbai,
whereby learned Magistrate refused to entertain the complaint
presented pursuant to order dated 4/9/2014 passed by Metropolitan
Magistrate, 23rd Court, Esplanade, Mumbai, the applicant has preferred
this application u/s 482 of Cr.P.C., to set aside the said order with
further direction to learned Magistrate to entertain the complaint.
3. Heard the submissions advanced by learned Counsel
representing the applicant/original complainant and respondents No. 2
to 4 (original accused Nos. 2 to 4) as well as learned APP for the State
and further perused the record and proceedings.
4. Few facts leading to the filing of application are as under:
On account of dishonour of five cheques of total sum of
Rs.33,31,385/, issued by respondent No. 2 Company, the
complainant initiated proceeding u/s 138 r/w Section 141 of N.I. Act as
against respondent No. 2 to 4 in the Court of Metropolitan Magistrate,
23rd Court, Esplanade, Mumbai. While proceeding was pending before
the said Court, on 1/8/2014 the Hon'ble Supreme Court of India, in the
matter of Dashrath Rupsingh Rathod Versus State of Maharashtra &
Anr. in Criminal Appeal No. 2287 of 2009, held that the return of the
cheque by the Drawee Bank alone constitutes the commission of the
offence u/s 138 of NI Act and indicates the place where the offence is
committed. The Apex Court has further directed that all the pending
cases except the cases wherein the recording of evidence has
commenced, be returned to the complainant for filing in the proper
Court. Pursuant to said direction, learned Metropolitan Magistrate, 23rd
Court, Esplanade, Mumbai passed order on 4/9/2014 and directed the
complaint be returned to the complainant for its presentation before
the proper/competent Court in whose jurisdiction 'the drawee bank is
situated'. Accordingly, the complainant presented the complaint with
Metropolitan Magistrate, 43rd Court, Borivali, Mumbai as the cheques
were payable “at par in all the branches of Bank of India”. However,
learned Metropolitan Magistrate, 43rd Court, Borivali, Mumbai vide
order dated 12/9/2014 passed in the matter refused to entertain the
complaint presented by the complainant. Learned Magistrate observed
that as the cheques in question being drawn and payable from Bank of
India, Angol Road Branch, Belgaum and the presentation of the
cheques with Bank of India, Branch at Borivali was in regular course of
banking transaction, the Bank of India, Branch at Borivali cannot be
treated as a Drawee Bank and, therefore, it will be against the essence
of the order of the Hon'ble Supreme Court. Being aggrieved by the said
order, the applicant has approached this Court.
5. The order impugned is mainly assailed with contention
that the learned Magistrate has wrongly refused to exercise the
jurisdiction vested in him by law as well as pursuant to order passed by
Apex Court. By referring the printed endorsement on cheques in
question, the learned Counsel submitted that though the cheques in
question are drawn from account of respondent No. 2 with Bank of
India, Branch at Angol Road, Belgaum, Karnataka, the cheques are
payable from all the branches of Bank of India within the Country. It
is, therefore, contended that as the cheques were presented for
realization and encashment to Bank of India, Branch at Borivali, and
same were dishonoured for want of sufficient fund in the account of
respondents No. 2, the said Branch of Bank of India can very well be
treated as Drawee Bank and the presentation of the complaint was fully
justified.
6. In my view, the contention raised by learned Counsel for
the applicant to decide the correctness of the order passed by learned
Metropolitan Magistrate requires no consideration for the sole reason
that, pending disposal of this application, the Government of India has
issued the Ordinance on dt. 15/6/2015. By the ordinance issued, the
Government of India has amended the provisions of NI Act, 1881 with
immediate effect. The relevant provisions of the Negotiable
Instruments (Amendment) Ordinance, 2015 read as under :
3. In the principal Act, section 142 shall be numbered as subsection
(1) thereof and after subsection (1) as so numbered, the
following subsection 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:—
‘‘142A. (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 or any judgment, decree, order or
directions of any court, all cases arising out of section 138 which
were pending in any court, whether filed before it, or transferred to
it, before the commencement of the Negotiable Instruments
(Amendment) Ordinance, 2015 shall be transferred to the court
having jurisdiction under subsection (2) of section 142 as if that
subsection had been in force at all material times.
(2) Notwithstanding anything contained in subsection (2) of
section 142 or subsection (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 subsection
(2) of section 142 or the case has been transferred to that
court under subsection (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.
7. In view of the above mentioned amendment to Section 142
of NI Act, the order impugned deserves to be quashed and complaint
needs to be restored to the file of Metropolitan Magistrate, 43rd Court,
Borivali, Mumbai. Accordingly, application is allowed in terms of
prayer clause “(b)” of the application. The impugned order dated
12/9/2014 passed by Metropolitan Magistrate, 43rd Court, Borivali,
Mumbai in Misc. No. 4300085 of 2014 in C.C. No. 2301575/SS/2014,
is hereby set aside. The learned Magistrate is directed to entertain the
complaint filed by the complainant in accordance with law and if
necessary, pass such order as deem fit and proper in the light of the
amended provisions of Section 142 of NI Act.
8. Rule made absolute in above terms with no order as to
costs.
[ V. L. ACHLIYA, J. ]
No comments:
Post a Comment