Sections 138 and 143 of Negotiable instruments Act

Sections 138 and 143 of Negotiable instruments Act

 

The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—

(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.

Example :

Mr.‘A’ has no bank account. However, by directly approaching the accused’s banker [one who issued the cheque] he can encash the cheque by producing the relevant identification  proof. In that event alone, accused bank area would be relevant for jurisdiction.

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.".

Example:

‘A’ issued a cheque for Rs 10,00,000/- to ‘B’. B has an Indian overseas bank account at Madurai. However, ‘B’ has gone to kanyakumari, for a business trip and presented the cheque for collection in Kanyakumari branch of Indian overseas Bank. Since the IOB banks have core banking system, the kanyakumari branch of IOB has accepted the cheque and issued cheque Dishonour Memo. Under the given sinario, whether the complainant has to file the cheque bounce case in the kanykumari or in Madurai ?

This amend was challenged before the Hon’ble High court of Madras in the case of Refex Energy Ltd. v. Union of India, 2019 SCC OnLine Mad 9941, decided on 18-12-2019 wherein the Hon’ble High court held that “Legislature can take away the basis of the judgment of a judicial pronouncement by either Validating Act or passing amendments to the parent Act.”

The Negotiable Instrument (Amendment) Act, 2018 the following

amendments were made:

 Insertion of Section 143A:

Power to direct interim compensation;

 Insertion of Section 148:

Power of Appellate Court to order payment pending

appeal against conviction.

S. 143. POWER OF COURT TO TRY CASES SUMMARILY.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year

may have to be passed or that it is, for any other reason,

undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.

S.326 of CrPC.. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.

(1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:

Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re- summon any such witness, and after such further examination, cross examination and re- examination, if any, as he may permit, the witness shall be discharged.

(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub- section (1).