VIKAS BAFNA Vs. UNION OF INDIA

JUDGEMENT

(1.) By means of this petition, the Petitioners have challenged the constitutional validity of sub-section (2) of Sec. 142 and Sec. 142A of the Negotiable Instruments Act as amended by The Negotiable Instruments (Amendment) Act, 2015.

(2.) The Petitioners had issued a cheque in favour of private Respondent No. 3. The Bank of the Petitioners is Axis Bank situated at Kolkata. The 2 cheque was presented by Respondent No. 3 at Raipur and when the cheque was dishonoured, proceedings under the Negotiable Instruments Act (hereinafter called 'the Act') were initiated at Raipur in the year 2011. These proceedings continued till 2014. Thereafter, a three Judge Bench of the Apex Court decided a number of cases, lead case being Dashrath Rupsingh Rathod Vs. State of Maharashtra, 2014(3) R.C.R.(Criminal) 904 : 2014(4) Recent Apex Judgments (R.A.J.) 614 : (2014) AIR SCW 4798) and held that only that Court will have the jurisdiction to entertain the complaint under Sec. 138 of the Act where the Branch on which the cheque has been drawn, is situated. The effect of this judgment was virtually nullified by the Negotiable Instruments (Amendment) Ordinance, 2015 issued on 15.06.2016 which was replaced by the Negotiable Instruments (Amendment) Second Ordinance, 2015, issued on 22.09.2015 and finally both the ordinances were validated by Negotiable Instruments (Amendment) Act, 2015 which is the subject matter of challenge in this writ petition.

(3.) What should be the situs of the proceedings initiated by the holder of the cheque against the drawer of the cheque has been the subject matter of litigation in a large number of cases. Initially, a two Judge Bench of the Apex Court in case of K. Bhaskaran Vs. Shankaran Vaidhyan Balan {1999(4) R.C.R.(Criminal) 309 : (1999) 7 SCC 510} held that the offence under Sec. 138 of the Negotiable Instruments Act is complete only with the concatenation of a number of acts and these acts are - (1) drawing of the cheque, (2) presentation of the cheque to the Bank, (3) returning the cheque unpaid by the drawee Bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount which has been dishonoured (5) failure of the drawer to make payment within 15 days of the receipt of the cheque. It was held that the proceedings under Sec. 138 of the Negotiable Instruments Act could be lodged even at the place where notice was issued or where the cheque was presented for payment. Thereafter the Apex Court dealt with this matter in Harman Electronics Pvt. Ltd. Vs. National Panasonic India Pvt. Ltd. {2009(1) R.C.R.(Criminal) 458 : 2009(1) R.C.R.(Civil) 435 : 2009(1) Recent Apex Judgments (R.A.J.) 97 : (2009) 1 SCC 720} wherein emphasis was laid on the receipt of notice. It was further held that the cause of action cannot depend upon any act of omission or commission on the part of the accused which was read to be as "complainant". In most cases, the Apex Court applied Bhaskaran (supra) and therefore, the matter was referred to the larger Bench and settled by the Apex Court in Dashrath (supra).