Hon’ble Sudhanshu Dhulia, J. (Oral)

1. Mr. S.P.S. Panwar, Senior Advocate, assisted by Mr. B.D. Pande, Advocate, present for the applicant.

2. Mr. R.P. Nautiyal, Senior Advocate, assisted by Mr. Mohit Maulekhi, Advocate, present for the respondent.

3. The present applicant before this Court had filed a complaint before the concerned Magistrate, under Section 138 of the Negotiable Instruments Act.

4. Admittedly, the facts of this case are that the cheques were drawn by the respondent from a bank which is situated in the territory at Nainital in Uttarakhand. Meanwhile, during the pendency of the complaint before the learned Metropolitan Magistrate, at Mumbai, the Hon’ble Apex Court delivered its judgment on 01.08.2014, relating to the Section 138 of the Negotiable Instruments Act, (Dashrath Rupsingh Rathod v. State of Maharashtra reported in (2014) 9 SCC)*. In the above case, inter alia, it has been held that only that court will have jurisdiction in the matter which has within its territorial jurisdiction the branch of the bank on which the cheque is drawn. Paragraph 22 of the said judgment reads as under:-

“22. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence i.e. applicability to complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged respondent-accused who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a court devoid of jurisdiction, this recourse in entirely does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where it is presently pending. All other complaints (obviously including those where the respondent-accused has not been properly served) shall be returned to the complainant for filing in the proper court, in consonance with our exposition of the law. If such complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time-barred.”

5. The learned Metropolitan Magistrate, Mumbai vide its order dated 17.11.2014, ordered that the complaint be returned to the complainant for filing before an appropriate court. At that relevant time, the appropriate court was the Chief Judicial Magistrate, Nainital. Subsequently, complaint was filed before the court of Chief Judicial Magistrate, Nainital on 06.01.2015. Although it was accompanied by a delay condonation application and the delay was explained by the applicant but the learned Magistrate did not condone the delay and has refused to condone it holding that the provisions of 142(2)(b) of the Negotiable Instruments Act, whereby the powers are given to the Magistrate for condonation of delay will not be applicable as in its judgment the Hon’ble Apex Court (Dashrath Rupsingh Rathod v. State of Maharashtra reported in (2014) 9 SCC) has onl