Birendra Shukla vs State of U.P.

Mahendra Dayal, J.—The applicants have approached this Court by way of filing these applications under Section 482 Cr.P.C. for quashing of the summoning order dated 25.11.2014, passed by Special Chief Judicial Magistrate, Lucknow as well as the entire proceedings of Complaint Case, under Section 138 of Negotiable Instruments Act, relating to Police Station Ghazipur, District Lucknow.

The facts in brief are that the opposite party No. 2 who is a resident of New Delhi, filed Complaint under Section 138 of the Negotiable Instruments Act against the applicants in the court of Chief Metropolitan Magistrate Saket Court, New Delhi, as the disputed cheques were deposited for collection at Nehru Place, New Delhi within the jurisdiction of Police Station Kalkaji New Delhi, which is within the territorial jurisdiction of Chief Metropolitan Magistrate, Saket Court, New Delhi. The case was assigned to Metropolitan Magistrate and vide order dated 18.1.2014 the applicants were summoned. After filing of the complaint by the opposite party no.2, the Honb''le Supreme Court in a case decided on 4.9.2014, held that a reading of Section 138 of the Negotiable Instruments Act and Section 177 Cr.P.C. makes it clear that the complaint can be filed within the jurisdiction of that court in whose jurisdiction the cheque was returned because the return of cheque alone constitutes the commission of offence. It was further held by the Hon''ble Supreme Court that the trial of the offence must be restricted to that place where the Drawee Bank is located.

In accordance with the law laid down by the Hon''ble Supreme Court referred to above, the learned Metropolitan Magistrate directed the return of complaint along with the original documents for want of territorial jurisdiction with the direction that the complaint can be presented before the court having jurisdiction. Since the Punjab National Bank was located at Indira Nagar, Police Station Ghzipur, District Lucknow, the opposite party No. 2 accordingly took back his complaints and refiled the same in the court of Special Chief Judicial Magistrate(Customs), Lucknow. After complaints were filed at Lucknow. The Negotiable Instruments (Amendment) Ordinance 2015 dated 15.6.2015 was promulgated to amend Negotiable Instruments Act by which the jurisdiction was defined. Section 142 of the Act was amended and in sub-section (2) it was provided that the offence under Section 138 N.I. Act 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 if the cheque is presented for payment by payee or holder in due course otherwise through an account, the branch of the Drawee Bank where the drawer maintained the account is situated.

I have heard learned counsel for the parties and perused the record.

It has been contended by the learned counsel for the applicants that the impugned summoning order has been passed in a casual manner without recording any satisfaction as to whether any offence is made out against the applicants or not? The learned counsel has referred to the order dated 11.9.2014, whereby the learned court has passed the order for registering of the complaint and issuing process to the applicants. The submission on behalf of the applicants is that such type of order cannot be said to be a speaking and reasoned order. It clearly reveals that the learned Magistrate has not applied his judicial mind before passing the order. It has also been submitted that from the averment made in the complaint, no offence under Section 138 of the Negotiable Instruments Act is made out against the applicants.

Shri Saurabh Mishra, learned counsel for the opposite party No. 2 has on the other hand submitted that the Chief Metropolitan Magistrate, Saket Court, New Delhi has already taken cognizance and no new complaint was filed by the opposite party No. 2 at Lucknow, therefore, no fresh order taking cognizance was required to be passed. The opposite party No. 2 took back the complaint filed at Saket Court, New Delhi and refiled the same at Lucknow but now after the amendment in 2015, the legal position has changed and the complaints can be heard and disposed of only by the Saket Court, New Delhi because the cheque was presented at New Delhi and the same was also dishonoured at New Delhi.

In these circumstances, the opposite party No. 2 has no other option except to again take back the complaint and file the same at Saket Court, New Delhi or the court at Lucknow may pass an order for transfer of the cases to Saket Courts, New Delhi. It has also been submitted on behalf of opposite party No. 2 that since the applicants have approached this Court for quashing of the summoning order and there is an interim order passed by this Court, therefore, the learned court below is not passing any order for transfer of the case or return of the cases.

After hearing the learned counsel for the parties and perusal of the record as well as amended Negotiable Instruments Act, I find that now the case under Section 138 of the Negotiable Instruments Act can be filed only in that court within whose local jurisdiction, the cheque is delivered for collection and the same is not honoured by the Bank for some reason. It is admitted to the parties that the opposite party No. 2 presented the cheque in the Citi Bank, N.A. situated at Nehru Place, New Delhi within the jurisdiction of Police Station Kalkaji, New Delhi, and as such the complaint can be entertained only by the court at Saket, District Court, New Delhi.

In view of the above, the present applications are disposed of with the direction that the learned Magistrate before whom the aforesaid complaints are pending, shall pass appropriate order in accordance with law either on the application of the opposite party No. 2 or suo-moto. The learned counsel for the opposite party No. 2, at this stage submits that he has already moved an application to this effect and in view of this it is provided that suitable order shall be passed by the court on the application of the opposite party No. 2 at the earliest preferably within a period of one month from the date of production of certified copy of this order.