Cheque cases can be transferred between states: Supreme Court

The accused had moved the Supreme Court seeking the transfer of two cheque cases from Maharashtra to Delhi, where similar cases were pending

In an important judgment the Supreme Court has said that cheque cases can be transferred from one state to another.

The judgment was delivered after hearing a case in which four of the six cases have been filed by a company before the Dwaraka Courts at New Delhi and two such cases are pending before courts in Nagpur, Maharashtra. The petitioners-accused moved the Supreme Court seeking transfer of the two cases from the Nagpur court to the Dwaraka courts.

While opposing the petition, the complainant-respondent said that the non-obstante clause in Section 142(1) of the Negotiable Instrument Act would override Section 406 of the Code of Criminal Procedure. I would not be permissible for the court to transfer the said complaint cases, in exercise of power thereunder.

A Bench comprising Justices Dinesh Maheshwari and Sanjay Kumar said, "notwithstanding non-obstante clause in Section 142(1) of the NI Act, the power of this Court to transfer criminal cases under Section 406 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.

The court however noted that the use of the phrase: 'shall be inquired into and tried only by a court within whose local jurisdiction in Section 142(2) of the Act is contextual to the ration laid down in the Dashrath Rupsingh Rathod vs State of Maharashtra and another, to the contrary, whereby territorial jurisdiction to try any offence under Section 138 of the Act of 1881 vested in the court having jurisdiction over the drawee bank and not the complainant's bank where he had presented the cheque.'

"It may be noted that the non obstante clause was there in the original Section 142 itself and was not introduced by way of the amendments in the year 2015, along with Section 142(2). The said clause merely has reference to the manner in which cognizance is to be taken in offences under Section 138 of the Act of 1881, as a departure has to be made from the usual procedure inasmuch as prosecution for the said offence stands postponed despite commission of the offence being complete upon dishonour of the cheque and it must necessarily be in terms of the procedure prescribed. The clause, therefore, has to be read and understood in the context and for the purpose it is used and it does not lend itself to the interpretation that Section 406 Cr.P.C. would stand excluded vis-à-vis offences under Section 138 of the Act of 1881. The power of this Court to transfer pending criminal proceedings under Section 406 Cr.P.C. does not stand abrogated thereby in respect of offences under Section 138 of the Act of 1881," the court said.