M/S PREETHI ENGINEERING ENTERPRISES AND ANR. v. M/S APPOLO CRANES PVT LTD

1. A petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) read with Article 227 of the Constitution of India has been preferred on behalf of the petitioners for setting aside order dated 15.07.2024 passed by learned ASJ-09, West District, Tis Hazari Courts, New Delhi in Criminal Revision No. 31/2023 and summoning order dated 09.12.2015 passed by learned MM (NI Act) West 03, Tis Hazari Courts, New Delhi with reference to proceedings under Section 138 Negotiable Instruments Act, 1881 (NI Act).

2. In brief, proceedings under Section 138 NI Act were initiated on behalf of the respondent on account of dishonour of cheques, returned vide Return Memo dated 09.01.2012. During pendency of the complaint before the learned Trial Court, in view of judgment passed by Hon’ble Apex Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr., (2014) 9 SCC 129 dated 01.08.2014, the complaint was directed to be returned to the respondent (complainant in proceedings under Section 138 NI Act) on 18.11.2014. In Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. (supra), it was held that the place, situs or venue of judicial inquiry and trial of offence must logically be restricted to where the drawee bank is located. The complaint was thereafter collected by the respondent on 06.11.2015 and re-filed on 04.12.2015, which was taken up on assignment on 09.12.2015 and the petitioner herein was summoned as an accused.

3. Aggrieved by the aforesaid summoning order dated 09.12.2015, a Revision Petition was preferred on behalf of the accused (petitioner herein) challenging the same. Amongst other grounds inter alia, the grievance of the petitioner is that since complainant did not receive back the complaint from the learned Trial Court and re-file the same within 30 days of 18.11.2014 as stipulated in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. (supra), the summoning order is bad in law.

4. Revision Petition preferred on behalf of the petitioner along with connected case (Sujatan K.S. v. M/s Appolo Cranes Pvt. Ltd., CR No.32/2023) was dismissed vide common order dated 15.07.2024.

5. Learned counsel for the petitioner relying upon order dated 28.11.2023 passed by Hon’ble Apex Court in Sunil Mantri v. Maharashtra Savings & Anr., SLP (Crl) 15076/2023, submits that proceedings before the learned Trial Court be stayed since a similar issue is pending consideration in the aforesaid case. Reliance is also placed upon a judgment passed by the High Court of Chhatisgarh, Bilaspur in M/s A.K.R. Transport v. M/s Kamakshi Shipping, CRMP No.620 of 2015.

6. The reasons recorded by the learned Revisional Court vide impugned order dated 15.07.2024 in paras 11 to 14 may be beneficially referred:

accepting the refiled complaint on the ground that it was refiled beyond the period of the 30 days. It is also required to be noted that in case the view taken by the High Court is accepted in that case without deciding the complaint on merits the accused would be acquitted and the complainant would be without any remedy as the complaint filed by him will not be considered and or decided either by the Patiala House Court or by the Saket Court. The complaint filed by the complainant was required to be adjudicated upon and/or considered by at least one of the Courts. In the present case, therefore, when the complaint was refiled with the Saket Court within a period of 30 days from the date of receipt of the physical copy of the order passed by the Patiala House Court, the same ought to have been accepted by the Saket Court and the Saket Court ought to have decided and dispose of it in accordance with law. In view of the above, present appeal is allowed. The impugned order passed by the High Court in Crl. Petition No.223/2016 as well as the order passed by the learned Metropoliton Magistrate (South East), District Saket which was the subject matter before the High Court are hereby quashed and set aside. The Metropoliton Magistrate (South East), District Saket is directed to accept the refiled complaint filed by the complainant on record and thereafter proceed further with the same and decide and dispose of the same in accordance with law and on its own merits after giving an opportunity to all concerned.

14. In view of the above authoritative judgment, in present case also complainant cannot be non-suited without a trial of the case on merits specially when respondent filed the complaint initially well within limitation period. Thus, Ld. Trial court did not commit any material irregularity or illegality while proceeding with the complaint in accordance with law. Accordingly, revision petitions stand dismissed.”

7. It may be noticed that in order dated 28.11.2023 passed in Sunil Mantri v. Maharashtra Savings & Anr. (supra), reference has not been made to judgment passed in Apparel Export Promotion Council v. M/s Collage Culture & Others (supra).

8. Apparently, in order to overcome the legal position on the point of territorial jurisdiction as enunciated in Dashrath Roopsingh Rathod v. State of Maharashtra & Anr. (supra), Negotiable Instruments (Amendment) Act, 2015 was passed which came into operation w.e.f. 15.06.2015. By aforesaid amendment, Section 142 NI Act came to be amended and Section 142A was also inserted. In view of non obstante clause in sub-section (1) of Section 142A, the provisions of Code of Criminal Procedure, 1973 would have to give way. Further, despite any judgment, decree, order or direction of any Court, all cases transferred to the Court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 shall be deemed to have been transferred under Negotiable Instruments Act, as if that sub-section had been in force at all material times. By virtue of Section 142(2), amended through the Negotiable Instruments (Amendment) Act, 2015, the jurisdiction for initiating the proceedings for offences under Section 138 NI Act when the cheque is delivered for collection where the payee or holder in due course maintains the account, would be maintainable. Also, sub-section (1) of Section 142A provides retrospectivity to the provision by laying down that sub-section shall be deemed to ‘have been in force at all material times’. In the facts and circumstances, this Court is of the considered opinion that no grounds are made out for interfering in the order passed in revision, since the case is fully covered even by the judgment passed in Apparel Export Promotion Council v. M/s Collage Culture & Others (supra). Petition is accordingly dismissed. Pending applications, if any, also stand disposed of.

ANOOP KUMAR MENDIRATTA, J. OCTOBER 18, 2024/R/sd