IMPORTANT POINT
The retrospective nature of the provisions of Section 142A of the NI Act and the acceptance of delay in filing restoration applications.

JUDGMENT

Amit Bansal, J. (Oral)

CRL.M.C. 5081/2018 @RNO=296905.docx

1. The present petition has been filed impugning the order dated 31st July, 2018, passed by the learned Additional Sessions Judge (ASJ), Saket District Courts in Criminal Revision No. 204191/2016.

2. Vide the aforesaid impugned order, the revision petition filed on behalf of the respondent no.1/complainant was allowed and the order dated 22nd January, 2016, passed by the learned Metropolitan Magistrate (MM), Saket District Courts was set aside.

3. Brief facts leading to the present petition are as under: -

a. The accused company, of which the petitioner herein was a director, issued a cheque dated 1st September, 2013, of Rs.13,88,00,000/- drawn on Dena Bank, Mumbai to the respondent no.1. The respondent no.1 presented the said cheque for payment at Syndicate Bank, New Delhi, however, the same was returned by the bank stating that the payment for the cheque has been stopped by the company.

b. Following this, the respondent no.1 filed a complaint before the learned MM in which the petitioner was arrayed as an accused under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) on 11th October, 2013.

c. On 1st August, 2014, the Supreme Court pronounced its judgment in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr., (2014) 9 SCC 129, and held that the courts within whose jurisdiction the cheque had been dishonoured by the bank on which it is drawn, would be the competent courts of jurisdiction for entertaining complaints under Section 138 of the NI Act. The Supreme Court further directed that all pending complaints filed in a court not having jurisdiction would be returned back to the complainant and refiled within 30 days of their return before the court of appropriate jurisdiction.

d. In view of the aforesaid judgment in Dashrath Rupsingh Rathod (supra), the learned MM, vide order dated 21st August, 2014, returned the complaint filed by the respondent no.1 and directed that the same be filed before the court of competent jurisdiction within 30 days.

e. On 15th June, 2015, an ordinance, being the Negotiable Instruments (Amendment) Ordinance, 2015 (Ordinance) was promulgated wherein, Section 142(2) and Section 142A were inserted in the NI Act. In terms of the newly inserted Section 142(2), the jurisdiction under Section 138 of the NI Act was vested in the court where the cheque was delivered for collection through the account of the payee. As per the newly inserted Section 142A, all cases filed under Section 138 of the NI Act were to be transferred to the court of appropriate jurisdiction under Section 142(2) of the NI Act.

f. In view of the aforesaid amendment, the respondent no.1 filed an application for restoration of the complaint on 20th October, 2015, which was dismissed by the learned MM vide order dated 22nd January, 2016, as the same was not filed within 30 days.

g. The respondent no.1 filed a revision petition against the aforesaid order of the learned MM, which was allowed by the learned ASJ vide the impugned order dated 31st July, 2018.

4. Counsel for the petitioner submits that in terms of the judgment of the Supreme Court in Dashrath Roopsingh Rathod (supra) and as per the direction of the learned MM dated 21st August, 2014, since the respondent no.1 had failed to re-file its complaint within 30 days before the court of appropriate jurisdiction at Mumbai, there was no complaint pending in any court in terms of Section 142A introduced by the aforesaid Ordinance on 15th June, 2015.

5. Counsel for the petitioner further submits that no valid reasons were given on behalf of the respondent no.1 to file the restoration application after a delay of more than one year and therefore, there is no infirmity in the order that was passed by the learned MM dismissing the application of the respondent no.1.

6. Per contra, the counsel appearing for the respondent no.1 submits that the present petition is fully covered in its favour by the judgments passed by the Coo