Ambiguity in the latest ordinance regarding the transfer of 138 N.I Act cases

IN Dashrath Rupsingh Rathod Versus State of Maharashtra & Anr. SUPREME COURT HELD AS :-

We clarify that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situates where the Section 138 Complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn.

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 accused/respondent 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.

To overcome this issue  of Jurisdiction of Drawee Bank, an ORDINANCE has been promulgated on the 15th June 2015 “ THE NEGOTIABLE INSTRUMENTS( AMENDMENT) ORDINANCE 2015” with an insertion of new section 142A.

“142A. Validation for transfer of pending cases-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgement, decree, order or directions of any court, all cases arising out of section 138 which were pending in any Court, Whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments ( Amendment) Ordinance, 2015, shall be transferred to the Court having Jurisdiction under Sub-Section (2) of Section 142 as if that Sub-section 142 as if that sub-section had been in force at all material times”

(Amendment of section 142) Explanation- For the purpose of clause(a) where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account”

HERE:-

According to the judgement of the Supreme Court :-“All other Complaints (obviously including those where the accused/respondent 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.

According to the Ordinance:- -(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgement, decree, order or directions of any court, all cases arising out of section 138 which were pending in any Court, Whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments ( Amendment) Ordinance, 2015, shall be transferred to the Court having Jurisdiction under Sub-Section (2) of Section 142 as if that Sub-section 142 as if that sub-section had been in force at all material times”

So in the judgement it is very clear that  “the pending case have to be returned to the concerned complainant to represent it before the proper jurisdictional court”.

But in the Ordinance “shall be transferred to the Court having Jurisdiction under Sub-Section (2) of Section 142”.

Here the ambiguity is that:-

Shall be transferred:- according to Criminal Procedure code

Section 406:-Power of Supreme Court to transfer cases and appeals-(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
 

Section 407:-Power of High Court to transfer cases and appeals:-( 1) (c ) ( ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction

Section 408:- Power of Sessions Judge to transfer cases and appeals (1) Whenever it is made to appear to a Sessions Judge that an order under this Sub-Section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.

The 138 N.I. Act cases are treated as Criminal cases and pending before various courts across the country.  As per the new amendment the cases filed or refiled as per the SC judgement  have to be transferred to the jurisdiction of concerned court at  the place of  Payee Bank . The question is the procedure of  transfer of a criminal case from one court to another court. As per the above provisions of Criminal Procedure Code within the district the District Sessions court is empowered, within the state Concerned High Court and if it is interstate Supreme court only can pass an order to transfer the case from one court to another court. As per Criminal Procedure Code Judicial First class Magistrates are not empowered to transfer a case from its own court to another court. Most of the cheques are pending before the Judicial First class Magistrates Courts and lot of cases are interstate cases. So really there is an ambiguity regarding the transfer of  138 N.I Act  cases in the latest Ordinance.

Please look into it.

SANTHOSH UNNITHAN