M/S Ikra International vs State Of U.P. And Another

Heard Sri S.K. Dubey, learned counsel for the applicant, Sri T.K Mishra, learned counsel for O.P. No.2 and the learned A.G.A.

This application under Section 482 Cr.P.C has been filed for quashing the proceedings of Complaint Case No.2446/2008 (M.L & Sons Creation Dhaurahara vs. M/s Ikra International), under Section 138 of the N.I. Act, P.S. Bhadohhi, Sant Ravidas Nagar, pending in the court of Chief Judicial Magistrate, Sant Ravidas Nagar, Bhadohi.

Learned counsel for the parties do not dispute that in view of the amendment effected by Act No.26 of 2015 w.e.f 15.6.2015, incorporating Sections 142 (2) & 142-A in the NI Act, the complaint filed by O.P. No.2 is liable to be tried by a court within whose jurisdiction the cheque is delivered for collection through an account of the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situate and as the cheque in question was delivered for collection through an account of O.P. No.2 at I.D.B.I, Sigara, Varanasi, it is the competent court at Varanasi alone, which would have the exclusive jurisdiction to try the complaint as also authenticated by the decision of the Apex Court in Bridgestone India Private Limited vs. Inderpal Singh, (2016) 2 SCC 75.

Sections and 142(2) & 142-A as inserted by Act No. 26 of 2015 in the N.I. Act are extracted hereunder: 142(2)- "(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."

142-A- (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 subsection (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 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.

(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.

A conjoint reading of the aforesaid statutory provisions indicates that all cases pending before any court, whether filed before it or transferred to it on or before 15.6.2015, shall be transferred to the court having jurisdiction as per Section 142(2) as inserted by Act No.26 of 2015 which is also authenticated by a decision of the Apex Court in Bridgestone (supra).

The cheque was delivered by the payee / O.P. No.2 through his bank at Sigara, Varanasi. Thus, the competent court at Varanasi alone would have the exclusive jurisdiction to try the above case.

Learned counsel for the applicant could not demonstrate any illegality / impropriety in the order of summoning dated 22.10.2008.

The application is partly allowed. The order of summoning dated 22.10.2008 is upheld.

The records of Complaint Case No.2446/2008 (M.L & Sons Creation Dhaurahara vs. M/s Ikra International), under Section 138 of the N.I. Act, P.S. Bhadohhi, Sant Ravidas Nagar, pending in the court of Chief Judicial Magistrate, Sant Ravidas Nagar, Bhadohi are directed to be transferred to the court of Chief Judicial Magistrate, Varanasi or the competent court, as the case may be.

Registry and the office of the court below to proceed forthwith with the follow up action.

Parties undertake to ensure their presence before the transferee court at Varanasi on 21.8.2017.