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REPORTABLE

IN THE SUPREME COURT OF INDIA       CRIMINAL APPELLATE JURISDICTION   CRIMINAL   APPEAL No.717 OF 2015

(Arising out of SLP(Crl.)No.8540 of 2013)

ULTRA TECH CEMENT LTD                              .......APPELLANT

VERSUS

RAKESH KUMAR SINGH & ANR                         .......RESPONDENTS                                                    

J U D G M E N T  J.S.KHEHAR, J.  1. Heard learned counsel for the parties. 2. Leave granted. 3. The question is whether the Metropolitan Magistrate, 11th

Court, Calcutta, where the appellant initiated proceedings under Section  138  of  the  Negotiable  Instruments  Act,  1881,  had  the jurisdiction to entertain the same. 4. Learned counsel for the rival parties have invited our attention, to the judgment rendered by a three-Judge Bench of this Court in Dashrath Rupsingh Rathod vs. State of Maharashtra and another, (2014) 9 SCC 129, and have drawn our attention to the following  observations recorded therein:

“22. We are quite alive to the magnitude of the impact  that  the  present  decision  shall  have  to possibly lakhs of cases pending in various  courts spanning across the country. One approach could be to  declare   that  this  judgment  will  have  only

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prospective  pertinence  i.e.  applicability  to complaints  that   may   be   filed   after   this pronouncement. However, keeping in perspective the hardship  that  this  will  continue  to  bear  on alleged respondent-accused who may have to  travel long  distances in  conducting their  defence, and also  mindful  of  the   legal   implications   of proceedings  being  permitted  to  continue  in  a court  devoid  of  jurisdiction, this recourse  in entirety   does   not   commend  itself   to   us. Consequent on considerable consideration we think it  expedient  to  direct  that  only  those  cases where, post the summoning and appearance of the alleged  accused, the recording of evidence has commenced as envisaged in Section  145(2) of  the Negotiable Instruments Act, 1881, will proceeding continue at that  place. To  clarify,  regardless of  whether  evidence  has  been  led  before  the Magistrate at the pre-summoning stage, either  by affidavit  or  by  oral statement, the complaint will be maintainable only at the place  where  the cheque   stands   dishonoured.   To   obviate  and eradicate any   legal complications, the category of complaint cases where proceedings  have  gone to the stage of Section 145(2) or  beyond  shall be  deemed  to  have  been transferred  by  us from the court ordinarily possessing territorial jurisdiction, as now clarified, to the court where it is presently pending. All  other  complaints (obviously  including  those  where  the respondent-accused has not been properly served) shall be  returned  to  the complainant for filing in the proper  court,  in  consonance  with  our exposition  of  the  law.  If  such  complaints  are filed/refiled within thirty days of their return, they shall be deemed to have  been  filed  within the time prescribed by law, unless the initial or prior filing was  itself  time-barred.”

 (emphasis is ours)

5. On a  perusal of the conclusions drawn in paragraph 22, extracted hereinabove, we feel that the proceedings initiated prior to the rendering of the judgment in Dashrath Rupsingh Rathod’s case (supra) on 01.08.2014, will be preserved at the place they were filed, only when “post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in

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Section  145(2) of  the Negotiable Instruments Act, 1881”.  In order to further explain its intent, the judgment clarifies, that merely leading of evidence at the pre-summoning stage, either by way  of  affidavit  or  by  oral  statement  will  not  exclude applicability of the judgment in Dashrath Rupsingh Rathod’s case (supra). The above judgment, thereby seeks to confirm the position, that only when recording of evidence at the post-summoning stage had commenced, before 01.08.2014 (the date on which the judgment in Dashrath Rupsingh Rathod’s case was pronounced), such proceedings would not be dislodged, the declaration of law, on the subject of jurisdiction, in Dashrath Rupsingh Rathod’s case (supra). 6. Having given our thoughtful consideration to the dispute in hand, and having examined the orders placed on the record of this case collectively as Annexure P-5, we are of the view that the appellant  recorded  its  statement  at  the  pre-summoning  stage  by filing an affidavit on 16.02.2007. Consequent upon the filing of the  aforesaid  affidavit,  the  summons  were  issued  to  the accused-respondent No.1 for 21.04.2007. On 21.07.2008, the accused was examined under Section 251 of the Code of Criminal Procedure, and  the  substance  of  the  allegations  were  read  over  to  him, whereupon, the accused having pleaded not guilty, the matter was adjourned for recording evidence on 31.12.2008. On 22.04.2009, the appellant  filed  an  affidavit  to  be  treated  as  the statement-in-chief  of  PW-1,  whereupon,  PW-1  was  to  be cross-examined. The Metropolitan Magistrate, 11th Court, Calcutta, then posted the matter for 22.07.2009 for the cross-examination of PW-1.  The  date  for  the  cross-examination  of  PW-1  was  first

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adjourned to 15.12.2009 and thereafter successively to 25.05.2010, 21.09.2010, 25.07.2011 and finally to 09.12.2011. 7. In view of the factual position noticed hereinabove, we are satisfied that evidence had commenced in the present matter, as envisaged by Section  145(2) of  the Negotiable Instruments Act, 1881, in terms of the clarification recorded in paragraph 22, in Dashrath Rupsingh Rathod’s case (supra).  That being the factual position, we are of the view, that the instant appeal is liable to be  allowed.   The  same  is  accordingly  allowed.  The  Metropolitan Magistrate, 11th Court, Calcutta will be deemed to have jurisdiction to entertain the controversy arising out of the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881. The said Court shall accordingly proceed with the matter, in consonance with law.

                        ..........................J.               (JAGDISH SINGH KHEHAR)

    ..........................J.           (S.A.BOBDE)

NEW DELHI; APRIL 24, 2015.

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