YOGESH UPADHYAY AND ANR VS. ATLANTA LIMITED
DATE OF ORDER:
Dinesh Maheshwari, Sanjay Kumar
According to the Supreme Court, it is permitted by Section 406 of the Criminal Procedure Code to transfer check cases from one state to another.
The bench of Justices Dinesh Maheshwari and Sanjay Kumar noted that, despite the non-obstante provision in Section 142(1) of the NI Act, this Court retains the authority to transfer criminal cases under Section 406 Cr.P.C. about offenses under Section 138 of the Act of 1881 if it is deemed necessary for the ends of justice.
Is Section 406 Crpc applicable to offenses under Section 138 of the Act of 1881?
The court pointed out that Section 142(2) of the Act's use of the phrase "shall be inquired into and tried only by a Court within whose local jurisdiction..." is relevant to the ruling in Dashrath Rupsingh Rathod v. State of Maharashtra and another [(2014) 9 SCC 129], which held that the court with jurisdiction over the drawee bank, not the complainant's bank, had territorial jurisdiction to try an offense under Section 138 of the Act
It should be emphasized that the non-obstante clause was there in the original Section 142 itself and was not added as a result of Section 142's revisions in 2015 (2). The aforementioned clause merely refers to how offenses under Section 138 of the Act of 1881 are to be recognized, as a deviation from the standard procedure is required because the prosecution for the aforementioned offense is postponed even though the commission of the offense was complete upon dishonor of the check.
As a result, the provision must be read and understood in the context and for the intended purpose, and it does not lend itself to the assumption that Section 406 Crpc would be excluded about offenses under Section 138 of the Act of 1881. In regards to offenses under Section 138 of the Act of 1881, this Court's ability to transfer ongoing criminal proceedings under Section 406 Cr.P.C. is not affected. Upon this observation, the bench granted the Transfer Petition.
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