CHHATTISGARH HIGH COURT
Goutam Bhaduri, J.
M/s. A.K.R. Transport —Petitioner
versus
M/s. Kamakshi Shipping —Respondent
CRMP No.620 of 2015 and CRMP No.650 of 2015
Decided on 21.8.2015

Headnote:Negotiable Instruments Act, 1881—Section 138, 142-A(1)(2) inserted by Negotiable Instrument (Amendment) Ordinance, 2015—Dishonour of cheque—Jurisdiction of court for trial of offence u/s 138 of the Act—Effect of ordinance dated 15.6.2015—Petitioner filed complaint case for offence u/s 138 of the Act, on 20.8.2014—Court of JMFC, Pamgarh passed on order returning the said complaint with a finding that the cheques which were drawn were dishonoured at Visakhapatnam, consequently, the court of JMFC, Pamgarh will not have jurisdiction—Supreme Court in Dashrath Ruping Rathod v. State of Maharashtra had passed the order on 1.8.2014, regarding the territorial jurisdiction of the court in such cases—It was held that the complaint would lie where the cheque was dishonour—Whether the trial court was justified in returning the complaint—(Yes)—Whether the petitioner can claim restoration of the complaint on basis of amended section of 142-A(1)(2) inserted by Negotiable Instrument (Amendment) Ordinance 2015—(No)

       Held: I have heard Shri Ashutosh Ghade, Amicus Curiae, at length to adjudicate legal controversy of this lis. Admittedly, the complaint under Section 138 of N.I. Act was filed on 20.08.2014. Hon’ble the Supreme Court in Dashrath Rupingh Rathod Vs. State of Maharashtra (supra) passed the order on 01.08.2014. Therefore, on the date of filing of complaint by the Magistrate, the order of Supreme Court was in operation which had the binding effect as the N.I. Act was amended in the month of June, 2015. Since the Supreme Court has declared the law by its judgment dated 01.08.2014 which had a binding effect on all Courts under Article 141 of the Constitution of India, the return of complaint for a cheque drawn on ICICI Bank, branch at Visakhapatnam (A.P), the Court at Pamgarh, Chhattisgarh did not have the jurisdiction, as such the learned court of JMFC was justified in doing so.

       As a consequence, concluding the fact, primarily it would be evident that on the date of filing of complaint on 20.08.2014 and the date of return of the complaint on 18.09.2014, the order of the Supreme Court was in force which mandates that the complaint would lie only where the cheque was dishonoured. In the instant case, the cheques having been dishonoured at Visakhapatnam as on that date, the complaint would lie only at Visakhapatnam and any complaint filed before any other Court would have no jurisdiction at all.

       So on the date of amendment of ordinance, by application of facts, the complaint under Section 138 filed before the JMFC was not pending having been returned on 18.09.2014. Now the question arises for consideration that whether the petitioner can claim restoration of the complaint on the strength of amended Section of 142-A(1)(2) inserted by Negotiable Instrument (Amendment) Ordinance 2015?

       The answer would be certainly in negative. The reasons would be—

        (i) the complaint was returned by JMFC Pamgarh in the light of decision of Supreme Court in Dashrath Rupsingh Rathod which at the relevant time was holding the field and has authority of law under Article 141 of Constitution of India and therefore the said judgment has a binding effect on all the Courts uptill the Ordinance, 2015 came into being.

        (ii) Further reading of newly inserted section 142(2) shows that the same effect does not extend to the complaints already returned as it contains the words “The offence under section 138 shall be enquired into and tried only by court within whose local jurisdiction”. So, if the complaint has already been returned and was not filed before the appropriate forum as per applicable law in force at the prevailing time no complaint would be presumed to be pending at that time. Therefore, there was no question of enquiring into and trying the offence in absence of a complaint.

       The last question falls for consideration as to whether the amendment carried out in N.I. Act, 1881 on 15.06.2015 would have a retrospective operation or would be prospective in nature. AND whether if such amendment has a retrospective effect whether the complaint filed by the petitioner could have been saved ? In order to find out the answer, the respective amendment was read in between the lines. Reading of amendment would show that it is an amendment of procedural law and not substantive law. The Supreme Court way back in a case law reported in AIR 1970 SC 1636 – Nani Gopal Mitra Vs. State of Bihar, while interpreting the amendment in procedural law, held thus at para 5:

        “5. ........... It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle, viz., that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (See In re a Debtor, 1936 Ch 237 and in re Vernazza, 1960 AC 965). The same principle is embodied in S.6 of the General Clauses Act which is to the following effect:

        xx xx xx xx

        Thereafter at Para 6 it has been held thus “The effect of the application of this principle is that pending cases, although instituted under the old Act but still pending, are governed by the new procedure under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case, the trial of the appellant was taken up by the Special Judge, Santhal Parganas, when Section 5(3) of the Act was still operative. The conviction of the appellant was pronounced on March 31, 1962 by the Special Judge, Santhal Parganas, long before the amending Act was promulgated. It is not hence possible to accept the argument of the appellant that the conviction pronounced by the Special Judge, Santhal Parganas, has become illegal or in any way defective in law because of the amendment to procedural law made on December 18, 1964. In our opinion, the High Court was right in invoking the presumption under S.5(3) of the Act even though it was repealed on December 18, 1964 by the amending Act. We accordingly reject the argument of the appellant on this aspect of the case.”

       Now turning to the argument advanced by the learned Senior Advocate to restore the complaint, the said argument cannot be allowed to sustain. This Court in exercise of its inherent power u/s 482 Cr. P.C., cannot pass any order to continue the proceedings since on the date of promulgation of ordnance no complaint was pending before the Court of JMFC. If it is done, it would amount to legislation. The petitioner(s), therefore, if so advised may file a fresh complaint before Court having jurisdiction. However, it has to satisfy the reasons for the delay in filing the complaint, which may be adjudicated on its merits by the competent Court. (Paras 7, 9, 11, 12 & 16)

       Result: Petition disposed of.