Continental Construction Co. vs Charanjit Kochhar

Mr. Tashi Rabstan, J. - Criminal Revision Petition on hand is directed against order dated 30.11.2015 passed by learned Special Judge,

Railway Magistrate (Sub-Judge), Jammu, in case titled M/s. Charanjit Kochhar & Anr. v. The Continental Construction Company &

Ors., in File No. 293/Compt., whereby the case has been transferred to the Court of Learned Additional Chief Metropolitan Magistrate, Saket

Courts, New Delhi.

The brief facts giving rise to the present revision petition are that the respondents had filed a complaint purportedly under Sections 138,141, and

142 of the Negotiable Instruments Act, 1881, against the petitioners before the Court of learned Additional Chief Metropolitan Magistrate, Saket

Courts, New Delhi, alleging therein that some cheques issued by Petitioner No. 1 has been dishonoured. It is also averred that respondents filed

two different complaints against petitioners, one titled as M/s. Charanjit Kochhar & Anr. v. The Continental Construction Company and

the other titled as Binkesh Kochhar v. The Continental Construction Company on similar allegations, and without pointing out as to/why

two different sets of cheques were issued by Petitioner No. 1 and to what was the legally enforceable debt payable by the petitioners. However, in

the complaints, the respondents have mentioned that they had some kind of business relations with M/s. Trikuta Builders through one Ajay Kapoor

S/o Sh. Gian Chand Kapoor R/o H. No. 210, Sector-C, Sainik Colony, Jammu. The respondents have no business with the petitioners and there

was nothing against the petitioners.

During the pendency of the complaint before the learned Additional Chief Metropolitan Magistrate, Saket Courts, New Delhi, the Hon'ble Apex

Court in case titled Dashrath Rupsingh Rathod v. State of Maharashtra 2014 (4) JKJ 14 [SC], (Cr. Appeal No. 2287 of 2009)

pronounced the judgment regarding the territorial jurisdiction of the cases pertaining to dishonour of cheques, therefore, the learned Additional

Chief Metropolitan Magistrate, Saket Courts, Nev.-Delhi, in light of the said judgment, returned the complaint to the Complainant-respondent

herein for presenting the same before the Court having appropriate jurisdiction. The Complainant-respondent herein, accordingly, presented a fresh

complaint before the learned Chief Judicial Magistrate, Jammu, which was transferred to the Court of learned Special Railway Magistrate (Sub-

Judge), Jammu. The learned Special Railway Magistrate (Sub-Judge), Jammu took the cognizance of the matter. Consequently, the proceedings

were initiated.

Amendments have been incorporated in the Negotiable Instruments Act by virtue of which Negotiable Instruments (Amendment) Ordinance

2015 (hereinafter referred to as 'First Amendment') read with Negotiable Instruments (Amendment) Second Ordinance-2015 (hereinafter referred

to as 'Second Ordinance'). In light of incorporation of Sub-section (2) of Section 142 in the Principal Act (Negotiable Instruments Act, 1881), the

learned Special Railway Magistrate (Sub-Judge), Jammu, has passed the order impugned dated 30.11.2015, observing that jurisdiction to hear the

instant case lies at New Delhi, as the cheque in the instant case, has been presented for encashment by the Payee to his Banker, the Jammu and

Kashmir Bank Limited, C-10, Greater Kailash-1, New Delhi. Aggrieved by the order impugned, the petitioner prefers the present Criminal

Revision.

Heard learned counsel for the parties and perused the record.

The ground of challenge thrown to order impugned in the present revision petition is that there is no such provision incorporated in Second

Ordinance of Negotiable Instruments (Amendment), Second Ordinance, 2015, therefore, the order impugned, transferring the

complaint/application, is without jurisdiction.

Learned counsel for the petitioner avers that the Negotiable Instruments (Amendment) Ordinance, 2015, 'First Ordinance', was promulgated by

Hon'ble the President of India on 15th June, 2015 and the Parliament re-assembled on 21st July, 2015 for the Monsoon Session, therefore, the

Ordinance ceased to operate on the expiry of the period of six weeks with effect from 21st July, 2015. Therefore, the First Ordinance lapsed on

31st August, 2015. Negotiable Instruments (Amendment) Second Ordinance, 2015 was promulgated by Hon'ble the President of India, to further

amend the Negotiable Instruments Act, 1881. In the Preamble of the Second Ordinance, it was mentioned that Negotiable Instruments

(Amendment) First Ordinance, to replace the Negotiable Instruments (Amendment) Second Ordinance, 2015, has been passed by the House of

People and is pending in the Council of the State. It is further averred that the Second Ordinance was given effect from 15th June, 2015, i.e. the

date when first Ordinance was promulgated.

Learned counsel for the respondents argues that the present revision petition is not maintainable in view of the insertion of Section 142-A in the

Negotiable Instruments Act. Further argues that sub-section (1) thereof leaves no room for any doubt insofar as the commission of offence under

Section 138 of the Negotiable Instruments Act. He also argues that in light of amendments made in the Negotiable Instruments Act by virtue of the

Negotiable Instruments (Amendment) Ordinance, 2015 (No. 6 of 2015, First Ordinance) read with the Negotiable Instruments (Amendment)

Second Ordinance, 2015 (No. 7 of 2015), the trial Court has rightly passed the order impugned, transferring the complaint to the Court at New

Delhi.

It is pertinent to point out here that the Division Bench of Hon'ble High Court of Chhattisgarh. Bilaspur (Writ Petition (C) No. 1351 of 2016,

titled Vikas Bafna v. Union of India & Ors.), while relying on a judgment passed by Hon'ble Apex Court in case titled Bridgestone India

Pvt. Ltd. v. Inderpal Singh (2015 AIR SCW 6556), considered and dealt with the validity of sub-section (2) of Section 142-A of the

Negotiable Instruments (Amendment) Act, 2015. Relevant para 23 of the said judgment is reproduced as under:

We may point out that in M/s. Bridgestone India Private Ltd. v. Inderpal Singh (2015 AIR SCW 6556) the Apex Court has taken note

of the amendments made and held as follows:

It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this court, as well as, the

provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of

the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted into the Negotiable Instrument Act. A

perusal of Sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instrument 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 142-A. 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

Instrument Act is concerned. In the above view' of the matter, we are satisfied, that the judgment rendered by this Court in Dash rath Rupsing

Rathod's case would also not non-suit the appellant for the relief claimed.

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 (through an account of the branch of the bank where the payee or holder in due course maintains the account).

We are also satisfied, based on Section 142-A (1) to the effect, that the judgment rendered by this Court in Dashrath Rupsing Rathod's case,

would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the

cheque in the present case arises.

As the learned counsel for parties have vehemently argued on Section 142-A of the Negotiable Instruments (Amendment) Act, 2015, it would

be advantageous to reproduce relevant portion thereof: -

142A. (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 or presented

for payment within the territorial jurisdiction of that court.

(3) If, on the date of 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 first case was filed and is pending, as if that sub-section had

been in force at all material times.

Admittedly, in the case in hand, the petitioner has not challenged the vires of Amendment of Section 142-A of the Negotiable Instruments

(Amendment) Act, 2015. Thus, from the conjoint reading of the newly inserted provisions in the Negotiable Instruments Act and the law laid down

by the Apex Court in case titled Bridgestone India Private Limited (supra), it is validly dear that the newly inserted provisions of the Negotiable

Instruments Act, are applicable with retrospective effect, that is from 15.06.2015 and the decision of the Hon'ble Apex Court in case Dashrath

Rupsing Rathod v. State of Maharashtra is statutorily superseded.

As per Section 142-A, amended by the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiation of

proceedings under Section I 18 of the Negotiable Instruments Act, inter alia, in the territorial jurisdiction of the Court where the cheque is

presented for encashment by the Payee to his Banker. In the promulgation of Negotiable Instruments (Amendment ) Second Ordinance, 2015, the

expression ""is as if that sub-section had been in force at material times"" has been used with reference to Section 142 (2). Be that as it may, Section

142-A (1) gives retrospective effect to the provisions.

I am, therefore, of the view that there is no scope to interfere with the order impugned dated 30.11.2015 passed by the learned Special

Railway Magistrate (Sub-Judge), Jammu.

For the foregoing reasons, this Revision Petition is, accordingly, dismissed and order dated 30.11.2015 passed by the learned Special Railway

Magistrate (Sub-Judge), Jammu is hereby upheld.