Gurdas Singh vs. Gurpreet Singh Sandhu
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The petitioner, Gurdas Singh, filed a petition under Section 407 read with Section 482 of the Cr.P.C. seeking to transfer a case (NACT/546/2022) filed under Section 138 of the Negotiable Instruments Act, 1881, from the Court of JMIC, Fazilka, to SAS Nagar (Mohali). The petitioner claimed to be a resident of Kharar, SAS Nagar, and that his business and bank account were located there. He also stated that the respondent/complainant was a resident of SAS Nagar. The respondent, Gurpreet Singh Sandhu, opposed the transfer, asserting his permanent residency in Fazilka and maintaining a bank account there since before 2014. He argued that the cheque was presented to his Fazilka bank account, which returned it due to insufficient funds. The respondent relied on Section 142(2) of the Act, which dictates jurisdiction based on where the payee maintains their account. The petitioner had previously appeared in Fazilka Courts, and four other Section 138 cases had been transferred to a JMIC in Fazilka.
Held
The Court held that the complaint case under Section 138 of the Negotiable Instruments Act, 1881, must be tried by a court within whose local jurisdiction the branch of the bank where the payee maintains the account is situated, as per Section 142(2)(a) of the Act. In this case, the respondent, who is the payee, permanently resides in Fazilka and has maintained his bank account with IDBI Bank Ltd., Fazilka Branch, since prior to 2014. The cheque was presented to this Fazilka account and dishonored. The petitioner failed to provide any evidence to rebut the respondent's claim regarding his bank account in Fazilka. Consequently, only the Courts at Fazilka possess the territorial jurisdiction to try the present case. The Court found no merit in the petitioner's plea for transfer. Therefore, the petition was dismissed.
Key Issues
1. Whether the Court has the jurisdiction to transfer the complaint case NACT/546/2022 from the Court of JMIC, Fazilka, to a competent Court at SAS Nagar (Mohali), considering the provisions of Section 142(2) of the Negotiable Instruments Act, 1881. Petitioner's arguments: The petitioner contended that both parties are residents of SAS Nagar (Mohali), and the petitioner's business and bank account are also located there. Therefore, it would be appropriate to transfer the proceedings to SAS Nagar for convenience and jurisdiction. Respondent's arguments: The respondent argued that he is a permanent resident of Fazilka and maintains his bank account in Fazilka. The cheque in question was presented to this Fazilka bank account, which was dishonored. Relying on Section 142(2) of the Act, the respondent asserted that the complaint can only be filed where the payee maintains their account, thus establishing Fazilka's territorial jurisdiction. The respondent also noted that the petitioner had already appeared in Fazilka Courts and that other related cases had been transferred within Fazilka.
Sections Cited
Section 138, Section 142(2), Section 407, Section 482
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
authenticity of this order/judgment Chandigarh
CRM M-23069 of 2023
2023:PHHC:126667 -2- Area, Phase-8, SAS Nagar, Mohali, which is also apparent from the copy of the GST registration of his firm Annexure P-2. Learned counsel further contended that even the respondent/complainant is resident of District SAS Nagar (Mohali), which is also apparent from the case draft and legal notice. He further contended that the firm of the petitioner is maintaining a bank account at SAS Nagar (Mohali). Learned counsel further contended that since both the parties belong to SAS Nagar (Mohali), it would be appropriate to transfer the proceedings from the Court of Judicial Magistrate 1st Class, Fazilka to a competent Court at SAS Nagar (Mohali), Punjab.
Reply filed on behalf of the respondent is taken on record. Learned counsel appearing on behalf of the respondent has vehemently opposed the prayer made by the learned counsel for the petitioner on the ground that the respondent is permanent resident of village Tahli Wala Bodla, Tehsil and District Fazilka and he is practising as an Advocate at District Court, Fazilka as well as in this Court. Learned counsel further submitted that the respondent has been maintaining his bank account bearing No. 1607104000017408 in IDBI Bank Ltd. Branch at Fazilka (Branch IFSC Code: IBKL0001607) even prior to the year 2014. He further contended that cheque in question issued by the petitioner was presented by the respondent in his above mentioned account in IDBI Bank Ltd., Fazilka Branch, but the same was returned by the said bank with a memo “Funds Insufficient”. While referring to the provisions AMIT RANA 2023.10.07 12:39 I attest to the accuracy and authenticity of this order/judgment Chandigarh
CRM M-23069 of 2023
2023:PHHC:126667 -3- incorporated under Section 142(2) of the Act, learned counsel stated that the complaint under Section 138 of the Act can be filed where payee or drawer of the cheque in due course, as the case may be, maintains his account. Learned counsel further submitted that even the petitioner has already appeared in the Courts at Fazilka and on his transfer application filed before the Court of CJM, Fazilka, four complaint cases under Section 138 of the Act have been ordered to be transferred to the Court of Mr. Parveen Singh, JMIC, Fazilka.
I have heard the learned counsel for the parties and perused the record.
Section 142 of the Act provides for the cognizance of the offences and the Courts, which are competent to inquire into and try the offence under the Act and the same has been reproduced below for the facility of reference:- “142. Cognizance of offences:- [(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the AMIT RANA 2023.10.07 12:39 I attest to the accuracy and authenticity of this order/judgment Chandigarh
CRM M-23069 of 2023
2023:PHHC:126667 -4- complainant satisfies the Court that he had sufficient cause for not making a complaint within such period; (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. 1(2) The offence under section 138 shall be inquired into and tried only by a court within whose local juri iction,- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation. For the purposes 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.]
In the present case, the respondent is permanent resident of village Tahli Wala Bodla, Tehsil and District Fazilka and has been maintaining his bank account bearing No. 1607104000017408 in IDBI Bank Ltd. Branch at Fazilka (Branch IFSC Code: IBKL0001607) even prior to year 2014. Even, the petitioner could not show any evidence to rebut the same. Even, the respondent had presented the cheque in the same account in IDBI Bank Limited, AMIT RANA 2023.10.07 12:39 I attest to the accuracy and authenticity of this order/judgment Chandigarh
CRM M-23069 of 2023
2023:PHHC:126667 -5- Fazilka Branch, which was returned by the bank with a memo “funds insufficient”. Even otherwise, in view of the provisions contained in Section 142(2) of the Act, the offence under Section 138 of the Act can be inquired into and tried only by a Court, where the branch of the bank, in which, the payee or holder in due course, as the case may, maintains the account, is situated. In the present case, the respondent was maintaining an account in the IDBI Bank, Fazilka, for the last 09 years and only Courts at Fazilka had territorial juri iction to try the present case.
In view of the above discussion, the present petition is ordered to be dismissed.
2023 ( N.S.SHEKHAWAT) amit rana
JUDGE
Whether reasoned/speaking : Yes/No Whether reportable : Yes/No AMIT RANA 2023.10.07 12:39 I attest to the accuracy and authenticity of this order/judgment Chandigarh
Reproduced from the public record of the Punjab and Haryana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.