Janardan Nirman Pvt. Ltd vs M/s. Era Infra Engineering Ltd. & Anr.

In spite of service of notice none appears on behalf of the opposite parties.

The affidavit of service filed by the petitioner shall be retained with the records.

Challenge in this revisional application is the order dated 3rd November,

2014 of learned Additional Chief Judicial Magistrate, Bidhannagar in c case no.

2260 of 2014 (GR no. 369 of 2014) wherein and where under learned Magistrate

has issued summons against the petitioner and other accused persons after examining the representative of complainant under Section 138 of the Negotiable

Instrument Act.

Being aggrieved by and dis-satisfied with such order the petitioner has filed

this revisional application on the ground that the petition of complaint is barred

by the Law of Limitation in terms of the decision of the Hon''ble Supreme Court

reported in 2015(1) Crimes 73 (SC) Shibgiri Associates and Ors. Vs. Mate so

Mineral( India Pvt. Ltd.) and for non-compliance of the mandatory provision of

law as contemplated under Section 202 of the Code of Criminal Procedure.

The complainant company having its office at 153 Ground Floor, Lila

House Okhla Industrial Estate- III New Delhi- 110020 and it''s head office at C

56/41, Sector- 62, Noida Goutam Budha Bihar, Uttar Pradesh gave some

equipment to the petitioner against rental charges and the petitioners accordingly

issued two cheques of Rs.16,00000/-(Sixteen Lakhs) and Rs.5,00000/-(Five

Lakhs) each drawn on Punjab National Bank, Sector-III, Salt Lake Calcutta-

700106 towards discharge of their part liability. The said cheques were

presented for encashment with Axis Bank at Noida but the cheques were

dishonoured with the remarks "payment stopped by drawer". Legal notices were

duly served upon the petitioner and thereafter a petition of complaint was filed in

the Court of Additional Chief Judicial magistrate, District Courts at Noida, Uttar

Pradesh. Learned Additional Chief Judicial Magistrate, Goutam Budha Nagar

however directed for return of such petition of complaint in terms of the decision

of Hon''ble Supreme Court (Dasarot Rupra Singh Rathore Vs. State of Maharashtra) and directed the complainant to present the said petition of

complaint before appropriate Court having jurisdiction.

Thereafter, the petition of complaint was filed in the Court of Ld. Additional

Chief Judicial Magistrate at Bidhannagar and learned Magistrate after examining

the complaint under Section 200 of the Code of Criminal Procedure issued

process against all the accused persons for the offence under Section 138 of the

Negotiable Instrument Act.

Learned Senior Advocate Mr. Moitra appearing on behalf of the petitioners

contended that such petition of complaint was returned for presentation on 9th

September, 2014 but the same was filed before learned Additional Chief Judicial

Magistrate, Bidhannagar on 3rd November, 2014 and accordingly, the petition of

complaint is barred by Limitation in view of the decision of Shibgiri Associates

and Ors.(Supra).

Learned Advocate further contended that leaned Magistrate while issuing

summons against the accused persons did not comply with Section 202 of the

Code of Criminal Procedure and accordingly, the order of issuance of summons

being contrary to the provisions of Section 202 of the Code of Criminal Procedure

ought to be set aside in terms of the decision reported in (2014)14 SCC 638 (Vijay

Dhanuka & Ors Vs. Najima Mamtaj & Ors.).

Admittedly, it was decided by the Hon''ble Supreme Court in Shibgiri

Associates and Ors (Supra) and Dasarath Rupsingh Rathore Vs. State of

Maharashtra that the petition of complaint as contemplated in Section 138 of the

Negotiable Instrument Act has to be filed within the jurisdiction of the Court,

where the cheques were drawn. In other words, the cheques in the case under

reference were drawn on Punjab National Bank, Secotr-III, Salt Lake, Kolkata-

700106 and accordingly, the Courts having jurisdiction in respect of Punjab

National Bank, Salt Lake only has had jurisdiction to entertain the application

under Section 138 of the Negotiable Instrument Act. In terms of the aforesaid

decision, the petition of complaint was returned to the complainant for filing the

same in the Court of learned Additional Chief Judicial Magistrate, Bidhannagar.

Accordingly, the petition of complaint was filed in the Court of learned Additional

Chief Judicial Magistrate, Bidhannagar. Admittedly, the original petition of

complaint was filed well within the period of limitation but the petition of

complaint, which was returned by the learned Magistrate of Gurgaon was filed

after 2 months from the date of return of petition of complaint. Relying on the

decision reported in Shibgiri Associates and Ors (Supra) learned Advocate for the

petitioner contended that the since the petition of complaint was filed long after

30 days from the date of return of such petition of complaint, the petition of

complaint ought to be treated as time barred.

Section 142-A has been incorporated in the Negotiable Instrument Act,

1881 on 15.06.2015. The aforesaid Section of Negotiable Instrument Act has

been given retrospective effect stating inter-alia, as if that sub-Section had been in force at all material times. Secondly, it has been further provided that such

cases transferred to the Court having jurisdiction notwithstanding anything

contained in the Court of Criminal Procedure, 1973 or any judgment, decree,

order or direction of any Court shall be deemed to have been transferred under

the Negotiable Instrument Act . It is crystal clear from 142- A of Negotiable

Instrument Act that the petition of complaint was in fact transferred to the Court

learned Additional Chief Judicial magistrate, Bidhannagar in terms of the

aforesaid Section and there is absolutely no scope to read the point of limitation

in transferring such petition of complaint from the Court of learned Additional

Chief Judicial Magistrate, Gurgaon to the Court of Learned Addition Chief

Judicial Magistrate, Bidhannagar. In fact the impact of the decision is not

available to the petitioner in view of the incorporation of Section 142-A of the

Negotiable Instrument Act. It has been observed in the decision of in (2014)14

SCC 638 (Vijay Dhanuka & Ors Vs. Najima Mamtaj & Ors.) (Supra) that it is

mandatory on the part of the Magistrate to hold an inquiry in terms of Section

202 of the Code of Criminal Procedure in case of issuance of summons to the

persons residing outside the jurisdiction of the Court learned Magistrate only in

order to avoid unnecessary harassment. No mode of such inquiry has been

provided either in the Code of Criminal Procedure and no guidance has been

given in the decision mentioned herein above with regard to the mode and

manner of such inquiry. The Hon''ble Supreme Court specifically stated in the

aforesaid decision that learned Magistrate has examined the complainant on

solemn affirmation alongwith two witnesses and only thereafter he had directed

for issuance of process. In that view of that case, Hon''ble Supreme Court did not find any error in the order impugned holding inter-alia that due inquiry was

conducted by learned Magistrate. In the case under reference the petition of

complaint filed by the opposite party no. 1 is saved by Section 142-A of the

Negotiable Instrument Act. Moreover, learned Additional Chief Judicial

Magistrate, Bidhannagar has duly examined the representative of the

complainant at the time of issuance of summons. That goes to show that learned

Magistrate has duly complied the provision of Section 202 of the Code of

Criminal Procedure and being satisfied about the case of the complainant, issued

summons against the petitioner and other accused persons.

In the premises set forth above I find no merit in the revisional application

and accordingly the same is dismissed.

No order as to costs.

The criminal revisional application accordingly is disposed of in terms of

the aforesaid order.

Urgent photostat certified copy of this order, if applied for, be given to the

parties as expeditiously as possible