Supreme Court

Yogesh Upadhyay and Ors. vs. Atlanta Limited

MANU/SC/0150/2023

21.02.2023

Banking

Court has power to transfer NI cases to other State by invoking Section 406 of CrPC

By way of present transfer petitions filed under Section 406 of Code of Criminal Proceure, 1973 (Cr.P.C.), Yogesh Upadhyay and his proprietary concern, Shakti Buildcon, seek transfer of case to the South West District Courts, Dwarka, New Delhi, to be tried along with Complaint Case, all titled ‘Atlanta Limited Vs. Yogesh Upadhyay’. These six complaint cases were filed against the Petitioners by Atlanta Limited, the Respondent, under Sections 138 and 142 of the Negotiable Instruments Act, 1881

It is now well settled that, the offence under Section 138 of the Act of 1881 is complete upon dishonour of the cheque but prosecution in relation to such offence is postponed, by virtue of the provisos therein, till the failure of the drawer of the cheque to make the payment within 15 days of receiving the demand notice. However, jurisdiction to try this offence remained a troublesome issue for a long time.

The power of this Court to transfer pending criminal proceedings under Section 406 of Cr.P.C. does not stand abrogated thereby in respect of offences under Section 138 of the Act of 1881. This Court exercised power under Section 406 of Cr.P.C. in relation to offences under Section 138 of the Act of 1881 even during the time the original Section 142 held the field.

In A.E. Premanand Vs. Escorts Finance Ltd. & Others, present Court took note of the fact that the offences therein, under Section 138 of the Act of 1881, had arisen out of one single transaction and found it appropriate and in the interest of justice that all such cases should be tried in one Court. Notwithstanding the non obstante clause in Section 142(1) of the Act of 1881, the power of this Court to transfer criminal cases under Section 406 of Cr.P.C. remains intact in relation to offences under Section 138 of the Act of 1881, if it is found expedient for the ends of justice.

In the case on hand, as the six complaint cases pertain to the same transaction, it would be advisable to have a common adjudication to obviate the possibility of contradictory findings being rendered in connection therewith by different Courts. As four of the six cases have been filed by the respondent company before the Dwarka Courts at New Delhi and only 10 two such cases are pending before the Courts at Nagpur, Maharashtra, it would be convenient and in the interest of all concerned, including the parties and their witnesses, that the cases be transferred to the Dwarka Courts at New Delhi. The transfer petitions are accordingly allowed.

Tags : Proceedings Transfer Provision

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