Published on: November 15, 2023 at 12:0 IST
Court: Supreme Court of India
Citation: Yogesh Upadhyay V. Atlanta Ltd. (2023)
Honourable Supreme Court of India has held that its Original Powers to transfer pending criminal proceedings under Section 406 of the Code of Criminal Procedure, 1973 does not stand abrogated thereby in respect of offences under Section 138 of the Negotiable Instruments Act, 1881. Hon’ble Apex Court has
appropriate powers as vested in the law to transfer cases to enable ends of justice.
13 Therefore, institution of the first two complaint cases before the Courts at Nagpur is in keeping with the legal position obtaining now. However, the contention that the non obstante clause in Section 142(1) of the Act of 1881 would override Section 406 Cr. P.C. and that it would not be permissible for this Court to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. 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. It may be noted that this Court exercised power under Section 406 Cr. P.C. in relation to offences under Section 138 of the Act of 1881 even during the time the original Section 142 held the field. In A.E. Premanand v. Escorts Finance Ltd. [(2004) 13 SCC 527], this Court took note of the fact that the offences therein, under Section 138 of the Act of 1881, had arisen out of one single transaction and found it appropriate and in the interest of justice that all such cases should be tried in one Court. We, therefore, hold that, notwithstanding the non obstante clause in Section 142(1) of the Act of 1881, 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.
Drafted By Abhijit Mishra
