Section 138 of n.i. act

raj kumar h (Querist) 23 October 2014 This query is : Resolved
in regards to the latest supreme court ruling about the transfer of cases which are not in jurisdiction of the bank from where the cheque was issued, sir my query is that what will happen to those cases where a NBW is issued against the accused or a proclamation against the accused. will those cases also get transferred without the accused himself being present to cancel the warrant or the proclamation?

and also please tell me the standard procedure to transfer cases in which no warrant has been issued and trial not yet started?

Follow Query

Report Abuse

Satya nand aggarwal (Expert) 23 October 2014
such cases will not be transferred. see the judgement carefully Dashrath Rupsingh Rathod …..Appellant Versus State of Maharashtra & Anr. …..Respondents

Guest (Expert) 23 October 2014
Dear Author,This will not be applicable for existing cases.For other procedures Discuss with a Senior Advocates for Transfers

Anirudh (Expert) 23 October 2014
According to the latest decision of the SC in Dashrath Rupsingh Rathod Vs.
State of Maharashtra & Anr, it is the place of the drawer's bank where the cheque gets bounced and that is the place where the 'offence' gets committed, and therefore the Sec. 138 N.I. complaint has to be filed before the Magistrate under whose jurisdiction the place where the Bank of the Drawer of the cheque is situated.

Only those cases where, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will continue to be tried in the courts in which they are currently pending.

All other pending cases 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.

Therefore the SC has given a direction that 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.

The complainant, after receiving the complaint back from the Court, files/refiles within thirty days of the receipt from the Court, then it shall be deemed to have been filed within the time
prescribed by law, unless the initial or prior filing was itself time barred.

In your fact situation, only NBW /proclamation against the accused has been issued. This case will be returned to the complainant and he has to file it in the jurisdiction of the Magistrate where the drawer bank is situated.

Guest (Expert) 23 October 2014
Excellently and Well advised by above Expert.

Devajyoti Barman (Expert) 23 October 2014
Even in cases where the W/A is pending the case would be transferred. Only where the evidence has started such cases would not be transferred.

ajay sethi (Expert) 23 October 2014
agree with MR anirudh

Rajendra K Goyal (Expert) 23 October 2014
Agree with the experts.

T. Kalaiselvan, Advocate (Expert) 23 October 2014
Agreed with the experts opinion to the subject query that the cases where the trial/enquiry has not been commenced, shall be committed to the concerned jurisdictional court,thus a warrant pending before the trial has commenced will be liable to be transferred to concerned court.