Case Note & Summary
The petitioner, Vasant S. Gala, was the complainant in two complaint cases under Section 138 of the Negotiable Instruments Act, 1881 against respondent No.2, Vijay Raghavji Dharod. The complaints were filed before the Metropolitan Magistrate, 38th Court, Kurla, Mumbai. The Magistrate ordered the complaints to be returned to the complainant on the ground that the cheque had been dishonoured not within the jurisdiction of that court. The Magistrate also observed that the stage of Section 145(2) of the Act had not been reached. The petitioner challenged this order by filing two criminal writ petitions before the Bombay High Court. The petitioner argued that he had already filed his affidavit of evidence in both cases on 14 August 2014, and therefore, the cases had reached the stage of Section 145(2) of the Act. The petitioner relied on earlier judgments of the Bombay High Court and the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129, which held that once an affidavit under Section 145(1) is filed, the case reaches the stage of Section 145(2) and the complaint cannot be returned. The High Court accepted this submission, set aside the Magistrate's orders, and directed the Magistrate to entertain and try the complaints. Both petitions were disposed of accordingly.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Return of Complaint - Once an affidavit under Section 145(1) of the Negotiable Instruments Act, 1881 is filed, the case reaches the stage of Section 145(2) and the complaint cannot be returned on jurisdictional grounds following the Supreme Court judgment in Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129. The Magistrate's order returning the complaint was set aside and the Magistrate was directed to entertain and try the complaints. (Paras 3-5)
Issue of Consideration
Whether a complaint under Section 138 of the Negotiable Instruments Act can be returned to the complainant after the stage of Section 145(2) of the Act has been reached, i.e., after the complainant has filed an affidavit of evidence under Section 145(1).
Final Decision
The High Court set aside the orders passed by the Magistrate in both cases and directed the Magistrate to entertain and try the complaints filed by the petitioner. Both petitions were disposed of accordingly.
Law Points
- Section 145(2) of Negotiable Instruments Act
- 1881 stage reached upon filing affidavit under Section 145(1)
- complaint cannot be returned after that stage
- Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129
Case Details
2015 LawText (BOM) (04) 85
Criminal Writ Petition No.4073 of 2014 with Criminal Writ Petition No.4090 of 2014
Deepak Sharma for Petitioner, Rajesh More (APP) for Respondent No.1 State
State of Maharashtra and Vijay Raghavji Dharod
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Nature of Litigation
Criminal writ petitions challenging the order of the Magistrate returning complaints under Section 138 of the Negotiable Instruments Act.
Remedy Sought
The petitioner sought setting aside of the Magistrate's order returning the complaints and direction to the Magistrate to entertain and try the complaints.
Filing Reason
The Magistrate returned the complaints on the ground that the cheque was dishonoured outside the court's jurisdiction and that the stage of Section 145(2) had not been reached.
Previous Decisions
The Magistrate ordered return of the complaints in both cases.
Issues
Whether the stage of Section 145(2) of the Negotiable Instruments Act is reached upon filing of an affidavit under Section 145(1)?
Whether a complaint under Section 138 can be returned after the stage of Section 145(2) is reached?
Submissions/Arguments
Petitioner argued that he had filed his affidavit of evidence on 14 August 2014, thus the stage of Section 145(2) was reached, and the complaint could not be returned as per the Supreme Court judgment in Dashrath Rupsingh Rathod v. State of Maharashtra.
Ratio Decidendi
Once an affidavit under Section 145(1) of the Negotiable Instruments Act is filed, the case reaches the stage of Section 145(2) of the Act, and thereafter the complaint cannot be returned on jurisdictional grounds following the Supreme Court judgment in Dashrath Rupsingh Rathod v. State of Maharashtra.
Judgment Excerpts
This Court in earlier judgments has said that once an affidavit under section 145 (1) of the Act has been filed, the said case is said to have reached the stage of section 145 (2) of the Act.
In such a case complaint cannot be returned following the judgment of Supreme Court in the matter of Dashrath Rupsingh Rathod Vs. State of Maharashtra.
Procedural History
The petitioner filed two complaints under Section 138 of the Negotiable Instruments Act before the Metropolitan Magistrate, 38th Court, Kurla, Mumbai. The Magistrate ordered the complaints to be returned to the complainant on jurisdictional grounds and on the ground that the stage of Section 145(2) had not been reached. The petitioner then filed two criminal writ petitions before the Bombay High Court challenging these orders.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 145(1), 145(2)
