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2017 Supreme(Del) 164

IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
GOYAL MG GASES PVT LIMITED – Petitioner
Versus
IND SYNERGY LIMITED & OTHERS – Respondents
TRP. (CRL.) Nos. 37-66 of 2016
Decided On : 19-01-2017

Advocates Appeared:
For the Petitioners: Mr. Pramod Kumar Dubey, Mr. Rohit Priya Ranjan, Ms. Megha and Mr. Anurag Andley.
For the Respondents: Mr. Vikas Pahwa with Mr. Siddharth Agarwal, Mr. S. Santanam Swaminadhan, Mr. Rahul Sharma, Ms. Nishtha Khurana, Mr. Sanjay Shukla and Ms. Kinnori Ghosh.

Headnote:

Section 138 of the Negotiable Instruments Act - Jurisdiction - 138 - 142 - 142A - 407 Cr.P.C. - 482 Cr.P.C. - Article 227 - Summary of Acts and Sections: The court discussed the applicability of Section 138 of the Negotiable Instruments Act, along with Sections 142 and 142A, and the jurisdictional issues related to the amendment to the Act. The court also considered the impact of the judgment in Dashrath Rupsingh Rathod vs. State of Maharashtra & Another, (2014) 9 SCC 129 and the subsequent amendment to the Act. The court's decision was influenced by the retrospective nature of the amendment and the interpretation of the term 'pending cases' in relation to the complaints under Section 138 of the NI Act.

Fact of the Case:

The petitioner/complainant filed 30 complaints under Section 138 of the Negotiable Instruments Act after cheques issued by the respondents were dishonoured. The complaints were directed to be returned by the learned Magistrate for being filed before the Court having territorial jurisdiction. The petitioner challenged the order, and the operation of the order was stayed by the High Court and later by the Supreme Court. The complaints remained pending with the learned Magistrate.

Finding of the Court:

The court found that the complaints remained pending despite the order for return, as the operation of the order was stayed by the High Court and the Supreme Court. The court also held that the amendment to the Act was retrospective, and there was no need for the complaints to be re-filed. The court set aside the impugned order and transferred the complaints to the Court of the competent MM having jurisdiction over PS – New Delhi District.

Issues: The issues revolved around the jurisdiction of the complaints under Section 138 of the NI Act, the impact of the judgment in Dashrath Rupsingh Rathod vs. State of Maharashtra & Another, and the retrospective nature of the amendment to the Act. The court also addressed the question of whether the complaints needed to be re-filed and the issue of limitation.

Ratio Decidendi: The court's decision was based on the fact that the complaints remained pending despite the order for return, as the operation of the order was stayed by the High Court and the Supreme Court. The court also emphasized the retrospective nature of the amendment to the Act and the interpretation of the term 'pending cases' in relation to the complaints under Section 138 of the NI Act.

Final Decision: The court set aside the impugned order and transferred the complaints to the Court of the competent MM having jurisdiction over PS – New Delhi District. The petitioner was also awarded costs in each of the petitions.

JUDGMENT :

VIPIN SANGHI, J.

1. These 30 petitions have been preferred by the petitioner/complainant under Section 407 Cr.P.C. read with Section 482 Cr.P.C. and Article 227 of the Constitution of India to, firstly, seek quashing of the common order dated 02.06.2016 passed by the learned MM (N.I. Act)-01, South-East, Saket, in the 30 complaints filed by the petitioner/complainant against the respondents under Section 138 of the Negotiable Instruments Act.

2. By the common impugned order dated 02.06.2016, the applications filed by the petitioner/complainant for transfer of the said 30 complaints have been dismissed on the premise that the said complaints stood returned by the learned M.M. on 30.08.2014 with direction to re-file the same in the Court having territorial jurisdiction in pursuance of the judgment of the Supreme Court dated 01.08.2014 in Dashrath Rupsingh Rathod vs. State of Maharashtra & Another, (2014) 9 SCC 129 and thus, the Court of the learned Magistrate had become functus officio. The learned Magistrate held that Negotiable Instruments (Amendment) Act, 2015 is applicable only in respect of pending cases, and the said 30 complaint cases of the complainant were no longer pending after passing of the order dated 30.08.2014.

3. These 30 petitions arise in the same factual background, and the grievance of the petitioner in these 30 petitions is also in respect of common impugned order dated 02.06.2016. Learned counsels have addressed common arguments in all these cases. In fact, respondent No. 1 has filed its reply in TRP. (Crl.) No. 37/2016 and learned senior counsel for the respondents has submitted that the said reply may be read in all the other cases as well. Consequently, I proceed to dispose of these 30 petitions by this common judgment. The factual background in which these petitions have come to be filed may now be taken note of.

4. It is the case of the petitioner that in relation to commercial transactions between the parties, the respondents issued numerous cheques to the complainant. The complaints came to be filed since the cheques had been dishonoured upon presentation and the amounts covered by the said cheques were not paid despite issuance of the statutory notices under Section 138 of the NI Act. 37 such complaints were preferred – including the 30 complaints in which the common impugned order has been passed by the learned MM dated 02.06.2016. In all these 37 cases, the learned Magistrate took cognizance and summoned the respondent/ accused vide order dated 07.03.2014.

5. While the complaints were pending, the Supreme Court rendered its decision in Dashrath Rupsingh Rathod (supra), wherein the Supreme Court ruled on the aspect of territorial jurisdiction of the Court which could entertain the complaints under Section 138 of the NI Act. The Supreme Court held that the offence under Section 138 of the NI Act stands committed on the dishonour of the cheque and, accordingly, the Judicial Magistrate of the place where the dishonour occurs is ordinarily the place where the complaint may be filed, entertained and tried. The Supreme Court held that the place of the issuance, or delivery of the statutory notice, or where the complainant chooses to present the cheque for encashment by his bank, are not relevant for the purposes of territorial jurisdiction of the Court where the complaint could be filed. The Supreme Court held that the territorial jurisdiction in respect of the offence under Section 138 of the NI Act is restricted to the Court within whose local jurisdiction the offence has been committed, which is the place where the dishonour by the bank – on which it is drawn, is situated.

6. The Supreme Court then proceeded to pass directions in relation to the pending complaints under Section 138 of the NI Act throughout the country. The direction in this regard is contained in paragraph 22 of the said decision, which reads as follows:

“22. We are quite alive to the magnitude of the impact that the present decis





















































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