# Indraveer Singh & Anr v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** Application U/s 482 No. 8779 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indraveer-singh-anr-v-state-of-u-p-anr-52088
- **Pages:** 7

## Headnote

Law-Criminal
Procedure
Code,1973-Section
482-Negotiable
Instruments
Act,
1881-Section
138quashing of entire proceedings-in the
present case on the basis of the complaint,
statement documents, cognizance was
taken by the earlier court not having
jurisdiction,
which
was
subsequently
transferred to the judicial magistrate, oraisection 460(e) Crpc provides that if the
cognizance
of
an
offence
is
taken
erroneously in good faith under Clause (a)
of Section 190(1) of Crpc by a court not
having jurisdiction, even then same will
not vitiate the proceeding-Therefore the
transferee court will continue to proceed
from that stage instead of hearing the
complaint afresh.(Para 1 to 17)

The application is dismissed. (E-6)

List of Cases cited:

## Text

5 All. Indraveer Singh & Anr. Vs. State of U.P. & Anr.
873
Manju Sharma vs. Jitendra Mangala), u/s
138 N.I. Act, P.S. Tajganj, District Agra is
hereby quashed.

14. Accordingly, the application is
allowed.

15. However, opposite party No.2 is
permitted to filed fresh complaint by
impleading the company, namely, M/s
Prerana Construction Pvt. Ltd., within a
period of one month.
----------
(2024) 5 ILRA 873
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/s 482 No. 8779 of 2024

Indraveer Singh & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Gautam, Mohd. Shamim, Nafees Ahmad

Counsel for the Respondent:
Ajay Sengar, G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section
482-Negotiable
Instruments
Act,
1881-Section
138quashing of entire proceedings-in the
present case on the basis of the complaint,
statement documents, cognizance was
taken by the earlier court not having
jurisdiction,
which
was
subsequently
transferred to the judicial magistrate, oraisection 460(e) Crpc provides that if the
cognizance
of
an
offence
is
taken
erroneously in good faith under Clause (a)
of Section 190(1) of Crpc by a court not
having jurisdiction, even then same will
not vitiate the proceeding-Therefore the
transferee court will continue to proceed
from that stage instead of hearing the
complaint afresh.(Para 1 to 17)

The application is dismissed. (E-6)

List of Cases cited:

1. Yogesh Upadhyay & anr. Vs Atlanta Ltd. (2023)
SCC Online SC 170

2. Dashrath Rupsingh Rathod Vs St. of Mah.
(2014) 9 SCC 129

3. V.Velu, S/o Veduppan Vs Chennakrishnan, S/o.
Venkataraman, CRLA No. 398 of 2011

4. Bridgestone India Pvt Ltd. Vs Inderpal Singh
(2016) 2 SCC 75

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Mohd. Shamim, learned
counsel for the applicants, Sri Ajay Sengar,
learned counsel for opposite party no.2 and
Sri Uday Bhan, learned AGA for the State.

2. The present 482 Cr.P.C.
application has been filed to quash the entire
proceedings of Complaint No. 40 of 2024
(Old
Complaint
no.5095/2019
and
Complaint
No.427
of
2021)
(Smt.
Iksharajey Versus Indraveer Singh and
Another), under Section-138 of Negotiable
Instruments Act, 1881 (hereinafter referred
to as 'the Act, 1881'), Police Station-Kotwali
Orai, District-Jalaun, pending in the Court
of learned Judicial Magistrate, Jalaun, as
well as impugned order dated 01.02.2024.

3. The contention of learned
counsel for the applicants is that the cheque
in question was presented in the account of
opposite party no.2 in State Bank of India,
Jalaun, but the complaint was filed at Orai.
Thereafter,
the
applicants
moved
an
application before the learned Sessions
874 INDIAN LAW REPORTS ALLAHABAD SERIES
Judge, who by order dated 03.01.2024,
transferred the case from Orai to Jalaun on
the ground that the Court at Jalaun had
jurisdiction as per Section-142(2) of the Act,
1881. After transferring this case to Jalaun,
the applicants moved an application before
the Court concerned, requesting that
cognizance be taken by the Court at Orai,
which
was
not
competent
to
take
cognizance. Therefore, a fresh proceeding of
cognizance may be initiated, but the Judicial
Magistrate, Jalaun, rejected that application.

4. Learned counsel for the applicant
relied upon the judgment of Apex Court
passed in the case of Yogesh Upadhyay and
another Vs. Atlanta Limited, 2023 SCC
Online SC 170, in which it is observed that
when the cognizance was taken by the
Court, which has no jurisdiction, then the
amendment made in Section 142 of N.I. Act
in pursuance of the judgment of Apex Court
in the case of Dashrath Rupsingh Rathod
Vs. State of Maharashtra, [(2014) 9 SCC
129], the complainant should be transferred
to the Court with jurisdiction as per the
amended provision.

5. Learned counsel for opposite
party no.2 has submitted that even if the
cognizance was taken by the Court having
no jurisdiction is a bona fide mistake, then
transferring the same to the Court having
jurisdiction will not make the cognizance
illegal and the transferee Court which will
proceed further from the stage of enquiry or
trial. Learned counsel also submits that as
per sub-clause (2) of Section 142 of N.I. Act,
an offence under Section 138 N.I. Act can be
inquired into and tried only by a Court
within whose local jurisdiction the cheque
was presented for collection and bounced.

6. Learned counsel for opposite
party no.2 has also relied upon the judgment
of Madras High Court passed in Criminal
Appeal No.398 of 2011, V. Velu, S/o.
Vedappan
Vs.
Chennakrishnan,
S/o.
Venkataraman, in which Apex Court
observed that if the cognizance was taken in
good faith by the Court not having
jurisdiction, the cognizance order could not
be set aside because such irregularity will
not vitiate the proceedings.

7.
 After
hearing
the
rival
submissions of learned counsel for the
parties and on the perusal of the record, it
appears that the impugned complaint was
earlier filed before the Court of Chief
Judicial Magistrate, Jalaun at Orai, who,
after perusal of the complaint as well as a
statement under Section 200 Cr.P.C. and also
the documents on record, summoned the
applicants. After that, on the applicant's
application, that complaint was transferred
to the Judicial Magistrate, Orai, District
Jalaun, by the District Judge, Jalaun at Orai,
by
order
dated
03.01.2024.
After
transferring the impugned complaint before
the Court of Judicial Magistrate, Orai,
District Jalaun, applicant no.1 filed an
application on 01.02.2024 praying that the
earlier summoning order passed by Chief
Judicial Magistrate, Jalaun at Orai was
without
jurisdiction.
Therefore,
the
complaint should be heard again on merit,
and a fresh summoning order may be
passed, but that application was rejected by
an order dated 01.02.2024.

8. Sub-sections (2) of Section 142
and 142-A of N.I. Act was introduced w.e.f.
15.06.2015. As per Section 142 sub-section
(2), an offence under Section 138 N.I. Act
can be inquired and tried by the Court within
whose local jurisdiction the Branch of Bank
where the holder in due course was
maintaining the account, in which cheque
was presented for collection. Section 142-A
5 All. Indraveer Singh & Anr. Vs. State of U.P. & Anr.
875
N.I. Act provides that all cases under Section
138 N.I. Act shall be deemed to be
transferred to the Court having jurisdiction
under Section 142 (2) N.I. Act. Section 142
sub-section (2) as well as Section 142-A of
N.I. Act are being quoted as under :-

"142. Cognizance of offences.-
(2) 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.
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.
Section
142A.
Validation
for
transfer of pending cases.-
(1)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974) or any
judgment, decree, order or direction of any
court, all cases transferred to the Court
having jurisdiction under sub-section (2) of
section 142, as amended by the Negotiable
Instruments (Amendment) Ordinance, 2015
(ord. 6 of 2015), shall be deemed to have
been transferred under this Act, as if that
sub-section had been in force at all material
times.
(2)
Notwithstanding
anything
contained in sub-section (2) of section 142
or sub-section (1), where the payee or the
holder in due course, as the case may be, has
filed a complaint against the drawer of a
cheque in the Court having jurisdiction
under sub-section (2) of section 142 or the
case has been transferred to that Court
under sub-section (1) and such complaint is
pending in that Court, all subsequent
complaints arising out of section 138
against the same drawer shall be filed
before the same Court irrespective of
whether those cheques were delivered for
collection or presented for payment within
the territorial jurisdiction of that Court.
(3)
If,
on
the
date
of
the
commencement
of
the
Negotiable
Instruments (Amendment) Act, 2015, more
than one prosecution filed by the same payee
or holder in due course, as the case may be,
against the same drawer of cheques is
pending before different courts, upon the
said fact having been brought to the notice
of the Court, such Court shall transfer the
case to the Court having jurisdiction under
sub-section (2) of section 142, as amended
by the Negotiable Instruments (Amendment)
Ordinance, 2015 (ord. 6 of 2015), before
which the first case was filed and is pending,
as if that sub-section had been in force at all
material times."

9. Hon'ble Apex Court in paragraph
no.22 of Dashrath Rupsingh Rathod
(supra), observed that in the complaint
under Section 138 N.I. Act, where the
accused has been summoned and appeared
by a Court that has no jurisdiction over that
complaint, will be transferred to the Court
having jurisdiction. The competent Court
will proceed, and all other complaints,
including that complaint where the accused
has not been properly served, shall be
returned to that complaint for filing in
proper Court. Paragraph no.22 is being
quoted as under:-
876 INDIAN LAW REPORTS ALLAHABAD SERIES
"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
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 respondentaccused 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."

10. After the judgment of
Dashrath Rupsingh Rathod (supra), an
amendment was made in Section 142 by
adding Section 142 (2) and Section 142A
was inserted by the amendment of the year
2015 in the Negotiable Instruments Act.
As per the new Section 142 (2), the
jurisdiction to inquire and try was given to
that Court where the cheque was delivered
for collection through an account.

11. The issue of jurisdiction under
142 N.I. Act was again considered in the
case of Bridgestone India Private Limited
vs. Inderpal Singh, (2016) 2 SCC 75. In
this judgment, the Apex Court observed
that an amendment was made in Section
142, sub-section (2), and Section 142-A of
N.I. Act will have a retrospective effect,
therefore, if the complaint is not filed in
the Court, which has no jurisdiction as per
Section 142(2) N.I. Act, that complaint
would be transferred to the Court having
jurisdiction. Paragraph nos. 13, 14 and 15
of Bridgestone India Private Limited
(supra) are being quoted as under:-

"13. A perusal of the amended
Section 142(2), extracted above, leaves no
room for any doubt, specially in view of the
Explanation thereunder, that with reference
to an offence under Section 138 of the
Negotiable Instruments Act, 1881, the place
where a cheque is delivered for collection
i.e. the branch of the bank of the payee or
holder in due course, where the drawee
maintains
an
account,
would
be
determinative of the place of territorial
jurisdiction.
5 All. Indraveer Singh & Anr. Vs. State of U.P. & Anr.
877
14. It is, however, imperative for the
present controversy, that the appellant
overcomes the legal position declared by
this Court, as well as, the provisions of the
Code of Criminal Procedure. Insofar as the
instant aspect of the matter is concerned, a
reference may be made to Section 4 of the
Negotiable
Instruments
(Amendment)
Second Ordinance, 2015, whereby Section
142-A was inserted into the Negotiable
Instruments Act. A perusal of sub-section (1)
thereof leaves no room for any doubt, that
insofar as the offence under Section 138 of
the
Negotiable
Instruments
Act
is
concerned, on the issue of jurisdiction, the
provisions of the Code of Criminal
Procedure, 1973, would have to give way to
the provisions of the instant enactment on
account of the non obstante clause in subsection (1) of Section 142-A. Likewise, any
judgment, decree, order or direction issued
by a court would have no effect insofar as
the territorial jurisdiction for initiating
proceedings under Section 138 of the
Negotiable Instruments Act is concerned. In
the above view of the matter, we are satisfied
that the judgment rendered by this Court in
Dashrath Rupsingh Rathod case [Dashrath
Rupsingh Rathod v. State of Maharashtra,
(2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 :
(2014) 3 SCC (Cri) 673] would also not
non-suit the appellant for the relief claimed.
15. We are in complete agreement
with the contention advanced at the hands of
the learned counsel for the appellant. We are
satisfied, that Section 142(2)(a), amended
through
the
Negotiable
Instruments
(Amendment) Second Ordinance, 2015,
vests jurisdiction for initiating proceedings
for the offence under Section 138 of the
Negotiable Instruments Act, inter alia, in the
territorial jurisdiction of the court, where
the cheque is delivered for collection
(through an account of the branch of the
bank where the payee or holder in due
course maintains an account). We are also
satisfied, based on Section 142-A(1) to the
effect, that the judgment rendered by this
Court in Dashrath Rupsingh Rathod case
[Dashrath Rupsingh Rathod v. State of
Maharashtra, (2014) 9 SCC 129 : (2014) 4
SCC (Civ) 676 : (2014) 3 SCC (Cri) 673] ,
would not stand in the way of the appellant,
insofar as the territorial jurisdiction for
initiating proceedings emerging from the
dishonour of the cheque in the present case
arises."

12. Hon'ble Apex court in the case
of Yogesh Upadhyay and another (supra),
after relying upon the judgement of
Bridgestone India Private Limited (supra),
has been observed that even the Supreme
Court can exercise power under Section 406
Cr.P.C., to transfer the cases pending in the
Court which has not had jurisdiction to the
Court having territorial jurisdiction and also
other complaints filed in different Courts to
the Court where the first complaint was filed
or transferred in the Court having territorial
jurisdiction as per Section 142 sub-section
(2) of N.I. Act.

13. So far as the contention of
learned counsel for the applicants that if the
cognizance was taken by a Court that does
not have jurisdiction, then after transferring
it to the Court having jurisdiction, the Court
will have to hear the complaint afresh and
has to pass fresh summoning order is
concerned, to decide this issue Sections 460,
461 and 462 of Cr.P.C. are relevant, which
are being quoted as under:-

"460. Irregularities which do not
vitiate proceedings.-If any Magistrate not
empowered by law to do any of the following
things, namely:-
(a) to issue a search-warrant under
Section 94;
878 INDIAN LAW REPORTS ALLAHABAD SERIES
(b) to order, under Section 155, the
police to investigate an offence;
(c) to hold an inquest under Section
176;
(d) to issue process under Section
187, for the apprehension of a person within
his local jurisdiction who has committed an
offence
outside
the
limits
of
such
jurisdiction;
(e) to take cognizance of an offence
under clause (a) or clause (b) of sub-section
(1) of Section 190;
(f) to make over a case under subsection (2) of Section 192;
(g) to tender a pardon under Section
306;
(h) to recall a case and try it himself
under Section 410; or
(i) to sell property under Section
458 or Section 459,
erroneously in good faith does that
thing, his proceedings shall not be set aside
merely on the ground of his not being so
empowered.
461. Irregularities which vitiate
proceedings.-If any Magistrate, not being
empowered by law in this behalf, does any
of the following things, namely:-
(a) attaches and sells property
under Section 83;
(b) issues a search-warrant for a
document, parcel or other thing in the
custody of a postal or telegraph authority;
(c) demands security to keep the
peace;
(d) demands security for good
behaviour;
(e) discharges a person lawfully
bound to be of good behaviour;
(f) cancels a bond to keep the peace;
(g)
makes
an
order
for
maintenance;
(h) makes an order under Section
133 as to a local nuisance;
(i) prohibits, under Section 143, the
repetition or continuance of a public
nuisance;
(j) makes an order under Part C or
Part D of Chapter X;
(k) takes cognizance of an offence
under clause (c) of sub-section (1) of Section
190;
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under Section
325, on proceedings recorded by another
Magistrate;
(o) decides an appeal;
(p) calls, under Section 397, for
proceedings; or
(q) revises an order passed under
Section 446,
his proceedings shall be void.
462. Proceedings in wrong place.-
No finding, sentence or order of any
Criminal Court shall be set aside merely on
the ground that the inquiry, trial or other
proceedings in the course of which it was
arrived at or passed, took place in a wrong
sessions division, district, sub-division or
other local area, unless it appears that such
error has in fact occasioned a failure of
justice."

14. From a perusal of Section 460
Cr.P.C., it is clear that Section 460 (e)
Cr.P.C. provides that if the cognizance of an
offence is taken erroneously in good faith
under Clause (a) of Section 190 (1) of
Cr.P.C. by a Court not having jurisdiction,
even then same will not vitiate the
proceeding. Again, Section 462 Cr.P.C. also
prescribes that no finding, sentence or order
of Criminal Court will be set aside only on
the ground that inquiry, trial or other
proceedings have been arrived at in the
wrong Court unless an error has the effect of
causing failure of justice.
5 All. Dr. Irfaq @ Muhammad Irfaq Husain Vs. State of U.P. & Anr.
879
15. In the present case, on the basis
of the complaint, statement and documents
on record, cognizance was taken by the
earlier Court not having jurisdiction, which
was subsequently transferred to the Judicial
Magistrate, Orai; this will not in any way
occasion a failure of justice to the applicant
because transferee court itself has to
consider the same complaint and document
and pass order on the basis of prima facie
satisfaction. Section 461 (k) Cr.P.C. further
provides that if the cognizance is taken by a
Court which is not competent under Section
190(1)(c) Cr.P.C., only then the cognizance
will vitiate the proceeding. However, in the
present case, cognizance was taken under
Section 190 (1) (a) Cr.P.C., not under
Section
190(1)(c)
Cr.P.C.
Therefore,
cognizance will not be vitiated under
Section 461 (k) of Cr.P.C.

16. In the present case, the earlier
Court of Chief Judicial Magistrate, Jalaun at
Orai, after taking evidence on an affidavit
under Section 145 N.I. Act summoned the
accused persons. Subsequently, accused
persons, including applicant no.1, appeared
before the Court below. Therefore, in view
of the above legal position, the transferee
Court will continue to proceed from that
stage instead of hearing the complaint
afresh.

17. In view of the above, there is no
illegality in the impugned order dated
01.02.2024.
Therefore,
the
present
application is dismissed.
----------
(2024) 5 ILRA 879
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
Application U/s 482 No. 9294 of 2023
&
Application U/s 482 No. 1090 of 2023

Dr. Irfaq @ Mohammad Irfaq Husain
 ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Abhay Mani Tripathi, Sri Nipun Singh

Counsel for the Respondent:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section 482 & 125-the applicant
challenged the maintenance order granted
to his estranged wife and their two minor
daughters-the applicant invoking a DNA
test report, contended that he was not the
biological father of one of the daughtersThe
court,
however,
dismissed
the
applicant's plea for a fresh DNA test and
rejected the quashing of the lower court's
orders-the court found that the applicant's
plea for a DNA test was primarily an
attempt to avoid paying maintenancecourt directed the applicant to clear any
outstanding payments within one month
and continue making regular payments
henceforth.(Para 1 to 33)

B. Section 112 of the Indian Evidence Act
presumes the legitimacy of a child born
during a valid marriage unless nonaccess between the spouses is proven.
Bald and unsubstantiated allegations of
adultery, without any concrete evidence
of non-access, are sufficient to rebut the
presumption of legitimacy.(Para 17 to
32)

The application is dismissed. (E-6)

List of Cases cited:

1. Rambhau & anr.Vs St. of Mah. (2001) 4 SCC
759

2. Nand Lal Wasudeo Badwaik Vs Lata Nandlal
Badwaik & anr.(2014) 2 SCC 576