ULTRA TECH CEMENT LTDversusRAKESH KUMAR SINGH & ANR.

                                                         153


              ULTRA TECH CEMENT LTD                        A
                           v.
            RAKESH KUMAR SINGH &ANR.
            (Criminal Appeal No.717of2015)                 B
                    APRIL24, 2015
  [JAGDISH SINGH KHEHAR ANDS.A. BOBDE, JJ.]
        Negotiable Instruments Act, 1881 - s. 138 - C
Complaint under - Territorial jurisdiction for lodging - Post
the judgment in *Rupsingh Rathod case whereby it was held
that jurisdiction to try the complaint would be determined by
reference to the place where cheque is dishonoured- Held:
 *Rupsingh Rathod's case had clarified that pending D
proceedings where evidence at the post-summoning stage
had commenced before the date of the judgment, would not
be dislodged - In the present case, evidence had
commenced as envisaged by s.145(2) of the 1881 Act, the
complaint would be maintainable before the Court it was E
lodged - Territorial Jurisdiction.
      Allowing the appeal, the Court
       HELD: 1. In view of the factual position in the F
present matter, evidence had commenced, as envisaged
by Section 145(2) of the Negotiable Instruments Act,
1881, in terms of the clarification recorded in *Dashrath
Rupsingh Rathod's case viz., the proceedings initiated
prior to the rendering of the judgment in Dashrath G
*Rupsingh Rathod's case i.e. on 01.08.2014, will be
preserved at the place they were filed, only when "post
the summoning and appearance of the alleged accused,
the recording of evidence has commenced as envisaged H
154         SUPREME COURT REPORTS                   [2015] 5 S.C.R.


A in Section 145(2) of the Negotiable Instruments Act,
  1881". Therefore, in the present case, the Metropolitan
  Magistrate before whom the complaint was lodged, will
  be dee !ed to have jurisdiction to entertain the
  controversy arising out of the complaint filed by the
B appellant u/s.138 of the Negotiable Instruments Act, 1881.
  The said Court shall accordingly proceed with the matter,
  in consonance with law. [Paras 5,7) [156-E-F; 157-E-G]
        Dashrath Rupsing Rathod vs. State of Maharahstra and
C       Anr. (2014) 9 SCC 129- relied on.
                         Case Law Reference
      (2014) 9 sec 129             relied on.           Para4
D           CRIMINAL APPELLATE JURISDICTION : Criminal
      Appeal No. 717 of 2015
            From the Judgment and Order dated 03.06.2013 of the
      High Court at Calcutta in CRR No. 721 of 2012
E
             Siddhartha Dave, Abhay Anand Jena, Ranjit Raut, Bina
      Gupta for the Appellant.
           Avijit Bhatacharjee, Upma Shrivastava, Ratan Kumar
      Choudhari for the Respondents.
F
             The judgment of the Court was delivered by
             J. S. KHEHAR, J. 1. Heard learned counsel for the
      parties.
G            2. Leave granted.
             3. The question is whether the Metropolitan Magistrate,
      11th Court, Calcutta, where the appellant initiated proceedings
      under Section 138 of the Negotiable Instruments Act, 1881,
H
  ULTRA TECH CEMENT LTD v. RAKESH KUMAR SINGH                 155
   ,       [JAGDISH SINGH KHEHAR, J.]

had the jurisdiction to entertain the same.                    A

        4. Learned counsel for the rival parties have invited our
attention, to the judgment rendered by a three-Judge Bench of
this Court in Dashrath Rupsingh Rathod vs. State of
Maharashtra and another, (2014) 9SCC129, and have drawn B
our attention to the following observations recorded therein:

       "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            c
  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      D
  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 entirety does not commend itself to         E
  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
                                                               F
  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        G
  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           H
156        SUPREME COURT REPORTS                       [2015] 5 S.C.R.


A      by us from the court ordinarily possessing territorial
       jyrisdiction, as now clarified, to the court where it is
       Qresently pending.            All other complaints (obviously
       including those where the respondent-accused has not
       been properly served) shall be returned to the
B      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
       d13emed to have been filed within the time prescribed
       by law, unless the initial or prior filing was itself time-
c      barred."

                                               (emphasis is ours)
            5. On a perusal of the conclusions drawn in paragraph
D   22, extracted hereinabove, we feel that the proceedings
    initiated prior to the rendering of the judgment in Dashrath
    Rupsingh Rathod's case (supra) on 01.08.2014, will be
    preserved at the place they were filed, only when "post the
    summoning and appearance of the alleged accused, the
E   recording of evidence has commenced as envisaged in
    Section 145(2) of the Negotiable Instruments Act, 1881 ". In
    order to further explain its intent, the judgment clarifies, that
    merely leading of evidence at the pre-summoning stage, either
    by way of affidavit or by oral statement will not exclude
F   applicability of the judgment in Dashrath Rupsingh Rathod's
    case (supra). The above judgment, thereby seeks to confirm
    the position, that only when recording of evidence at the post-
    summoning stage had commenced, before 01.08.2014 (the
G   date on which the judgment in Dashrath Rupsingh Rathod's
    case was pronounced), such proceedings would not be
    dislodged, the declaration of law, on the subject of jurisdiction,
    in Dashrath Rupsingh Rathod's case (supra).
           6. Having given our thoughtful consideration to the
H
   ULTRA TECH CEMENT LTD v. RAKESH KUMAR SINGH                     157
            [JAGDISH SINGH KHEHAR J.]

dispute in hand, and having examined the orders placed on          A
the record of this case collectively asAnnexure P-5, we are of
the view that the appellant recorded its statement at the pre-
summoning stage by filing an affidavit on 16.02.2007.
Consequent upon the filing of the aforesaid affidavit, the
summons were issued to the accused-respondent No.1 for              B
21.04.2007. On 21.07.2008, the accused was examined under
Section 251 of the Code of Criminal Procedure, and the
substance of the allegations were read over to him, whereupon,
the accused having pleaded not guilty, the matter was adjourned     C
for recording evidence on 31.12.2008. On 22.04.2009, the
appellant filed an affidavit to be treated as the statement-in-
chief of PW-1, whereupon, PW-1 was to be cross-examined.
The Metropolitan Magistrate, 11th Court, Calcutta, then posted
the matter for 22.07.2009 for the cross-examination of PW-1.        D
The date for the cross-examination of PW-1 was first adjourned
to 15.12.2009 and thereafter successively to 25.05.2010,
21.09.2010, 25.07.2011 and finally to 09.12.2011.
        7. In view of the factual position noticed hereinabove, E
we are satisfied that evidence had commenced in the present
matter, as envisaged by Section 145(2) of the Negotiable
Instruments Act, 1881, in terms of the clarification recorded in
paragraph 22, in Dashrath Rupsingh Rathod's case (supra).
That being the factual position, we are of the view, that the F
instant appeal is liable to be allowed. The same is accordingly
allowed. The Metropolitan Magistrate, 11 1h Court, Calcutta will
be deemed to have jurisdiction to entertain the controversy
arising out of the complaint filed by the appellant under Section
138 of the Negotiable Instruments Act, 1881. The said Court G
shall accordingly proceed with the matter, in consonance with
law.
Kalpana K. T ripathy                             Appeal allowed.
                                                                    H