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  • May 04, 2020
    Doctrine of Res Sub Judice does not bars the institution of second suit Judicial dexterity is not only confined to the judges and courts, in fact it relies more on apt implementation of general laws and doctrines. To know the ‘judicial dexterity’, one should know the functioning of courts and the implementation of suitable laws. Doctrine of Res sub judice The term sub judice in Latin means ‘under judgment’, which says that present matter or case is being considered by Judge or court. Doctrine of res sub judice is coded under sec.10 of Civil Procedure code. The Doctrine of res sub judice means, ‘stay of suit’ because the matter is already being heard. Thus, a party is entitled to prevent the trial of second suit on the basis of this doctrine. The purpose behind this provision is to prevent the court of concurrent jurisdiction from the simultaneous consideration or trial of two suits between the same parties on the same cause of action in respect of the same subject matter. Sec.10 of Civil procedure Code, 1908 personates this doctrine as: “No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in previously instituted suit between the same parties, or between parties under whom they or any of them claim litigation under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or continued by the central govt. and having like jurisdiction, or before the supreme court.”[1] Nature This is not a substantive right but purely procedural, therefore the party is entitled to waive this title. This rule applies to the trial of a suit and not the institution thereof.[2] What if the parties waive their right? Read more- https://shataxiamicuslex.blogspot.com/2020/05/doctrine-of-res-sub-judice.html
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  • May 01, 2020
    Delhi HC refused plea seeking ISPs should not charge for unused net amidst lockdown Delhi HC refused to hear plea, seeking directions to all telecom's and Internet service providers to not to charge any amount for households, shops, businesses, factories, which remained “compulsorily closed” amidst lock down. Division bench comprising of Justices Vipin Sanghi and Yogesh Khanna said, that Supreme Court has already dealt with a similar issue and the high court is not inclined to entertain the plea. Amit Sahni has also made the Ministry of Finance, Telecom Regulatory Authority of India, as well as the GST Council, parties to his petition. Petitioner Amit Sahni, has demanded if previously any amount has been collected, such shall be transferred to relief fund set up by PM Modi. Read more- https://shataxiamicuslex.blogspot.com/2020/05/delhi-hc-refused-plea-seeking-isps.html
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  • Aug 30, 2019
    A judicial device in legal systems whereby a court may prevent, or estop a person from making assertions or from going back on his or her word is known as Estoppel. Estoppel is dealing in sections 115 to 117 of the Indian evidence act.    When a person by his declaration has intentionally permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and a person or his representative, to deny the truth of that thing is known as Doctrine of Estoppel. The principle of the doctrine of Estoppel is given under Section 115 of the Indian Evidence Act, 1892. The doctrine has various names, stated as equitable estoppel, quasi estoppel, and new estoppel. The Doctrine is not entirely based on the principles of estoppel, but it is a doctrine that evolved by equity to prevent injustice where a promise made by a person knowing that it would be acted on, it is inequitable to allow the party making the promise to go back upon it. The Doctrine of promissory estoppel need not, therefore, be confined to the limitations of estoppel in the strict sense of the word.   Promissory estoppel is another kind of Doctrine of Estoppel. The courts have identified four criteria that trigger the existence of a strong promise to bring about estoppel between a promisor and a promisee, therefore: The promisor made a promise significantly to cause the promisee to act on it. The promisee relied upon the promise entirely. The promisee suffered significant damage because the promisor reneged on the promise. The fulfillment of the promise is the only way the promisee can be compensated.
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  • Aug 26, 2019
    A dying declaration in the law of evidence is nothing but a testimony that would normally be barred as hearsay but may in common law nonetheless be admitted as evidence in criminal law trials for it constitutes the last words of a dying person. The rationality is that someone who is dying or believes death to be imminent have less incentive to fabricate testimony, and the hearsay statement carries with it some reliability. Simply, a statement by a conscious person knows that death is imminent concerning what he or she believes to be the cause or circumstances of death that can be introduced as a piece of effective evidence during a trial. The whole purpose of this act is to rectify the principle of “Leterm Mortem” which in simple english means “words said before death” But in a legal language it is termed as ‘Dying Declaration.’  “People who know they are dying do not lie”, based on this phenomena, a dying declaration is considered as credible and trustworthy evidence. But this is an exception to the Hearsay rule, that prohibits the use of a statement made by someone except for the dying person who repeats it during a trial while testing, as it is then consider as untrustworthiness. If the person making the dying declaration, shows slightest hope of recovery, no matter how unreasonable, the statement is not admitted as an evidence. A dying declaration is introduced by the prosecution, but it can however be used on behalf of the accused too. Our Indian law recognizes this ac as ‘a dying man seldom lies’ and/or ‘truth sits upon the lips of a dying man.’ It is an exception to the principle of excluding hearsay evidence rule. Here the person is the only eye-witness to the crime, and exclusion of his statement would tend to defeat the end of justice. The cases related to that person who is dead or who cannot be found comes the section 32 of Indian Evidence act.
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  • Aug 23, 2019
    DOCTRINE OF BASIC STRUCTURE Fundamental Structure as an idea developed from rights law adjusted to normal law hypothesis. Indian law got this idea to stem official overextend. Notwithstanding, purposely or not, the idea was constantly kept dubious. Judiciary had once in a while endeavored to get control over the idea of essential structure which was to be the last defense against an over possessive assembly. This article endeavors to discover a connection between the ideas of normal law and fundamental structure-both unchanging and sacred. I would additionally break down the patterns of Indian Supreme Court and endeavor to devise a working test for fundamental structure. INTRODUCTION Indian Constitution charges the Parliament with capacity to make laws inside its locale. This power incorporates the ability to change existing laws. In any case, this power isn't total in nature. The Constitution gives the intensity of Judicial review to the Indian Judiciary whereby it has the ability to settle the protected legitimacy of all laws enforceable inside the Union. In the event that the Union Parliament or the State Legislature disregards any arrangement of the Constitution the Supreme Court has the ability to announce such laws as either invalid or ultra vires. The Constituent Assembly needed the Constitution to be a dynamic, natural archive, staying aware of the occasions. In order to facilitate this, the Parliament was granted the power to amend the Constitution under Article 368.[1] Upon a plain perusing of Art 368 recommends that the intensity of the Parliament is supreme and cover all parts of the Constitution. In any case, being provoked by official exceed, the Supreme Court attempted to put a brake on the administrative and official exuberance. About three decades prior in April 1973 in the acclaimed instance of Kesavananda Bharti Sripadagalvaru v. Province of Kerala[2] the Supreme Court showing extraordinary creativeness and valor on its part thought of the most well known development in the Indian protected law history. For this situation the Supreme Court propounded the renowned 'Basic structure and system of Indian Constitution' or 'Doctrine of basic structure' subsequently ending the lawmaking body's consistently broadening arm. With the goal to safeguard the first standards of the Constitution, the Supreme Court articulated that the Parliament couldn't contort, deform and mangle the fundamental highlights of the Constitution which are holy to the beliefs of the Indian culture. Do read whole article on my blog and kindly give your valuable feedback
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  • Jul 17, 2019
    In this technically pro era, reports that regulated firms must send to the regulators could be generated and submitted without needing human involvement. However, there are significant hurdles to overcome before automated regulation becomes a reality. Consumers are increasingly trying to know who is accessing, collecting, receiving, processing, and storing their personal data. As a result, various regulations are being passed around the world to protect consumer privacy. Full compliance with these regulations requires local insight and is a vital component of brands successfully selling across regions. One such law is digital regulatory law. It consists of many other laws which protect the privacy and endures a digital network of working. GDPR General Data Protection Regulation is one of the laws enacted upon. GDPR is a regulation in law on data protection and privacy for all individual citizens of the European Union (EU) and the European Economic Area (EEA). It also addresses the export of personal data outside the EU and EEA areas. The GDPR aims primarily to give control to individuals over their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU. Digital Regulatory Laws will not only change the way of working but will also give transparency to the citizens. Some of the important pointers are mentioned below: Clear and inclusive rules: the same rules will apply all over with a vision of an inclusive single market. Higher quality of services: the Code will foster competition for investments, in next-generation networks - 5G, meaning higher connection speeds and higher coverage. Competitive prices: by multiplying the offers available and bringing more capacity, the prices are expected to go down. Consumer protection: the Code proposes a regulatory approach which allows all actors, from traditional telecom operators to online players, to provide interpersonal communication services with the same level of protection for the end-user. That means that 'electronic communications services' will also cover services provided over the internet such as messaging apps and email also known as 'over-the-top' or 'OTT' services. DRL is the most effective invention so far in the digital era and it will reduce many day-to-day man-force activities to make the work less hectic and transparent.
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  • Jul 11, 2019
    Making Tax Digital (MTD)   is a formation of government having a salient vision of digital tax system, for making an easier and transparent system for citizens and businesses to get the exact tax and be updated with their affairs involved. The aim of this initiative is to make tax administration more cogent, more operative and easier for taxpayers by the implementation of electronic means. GST (Goods and Services Tax) is one such initiate taken by the Indian government. GST is an Indirect Tax which has replaced several Indirect Taxes in India. The GST Act was passed on 29th March 2017. The Act came into effect on 1st July 2017. GST is one indirect tax for the entire country. This cosmic tax is destination oriented and hand-to-hand dependent.   Destination Oriented : Foresee a scene, a good getting manufactured in Madhya Pradesh and being sold in Delhi. As GST is levied to the consumer, the entire calculated tax revenue will be paid by Delhi and not MP. In this way, GST has become destination oriented tax.   Hand-to-Hand Dependent: A good travels from one state to another and so from many exchanges. There are multiple chains of hands through which a good pass by. Right from the supplier, the manufacture and then to the final consumer.   The following chain is proceeded: Purchase of raw- materials-Production or manufacture- Warehousing of finished goods-Sale to wholesaler-Sale of the product to the retailer- Sale to the end consumer.   There are 3 taxes applicable under this system:   CGST, SGST and IGST,CGST: Collected by the Central Government on an intra-state sale (E.g.: transaction happening within Maharashtra).   SGST: Collected by the State Government on an intra-state sale (E.g.: transaction happening within Maharashtra).   IGST : Collected by the Central Government for inter-state sale (E.g.: Maharashtra to Tamil Nadu).   Advantages: GST has mainly removed the Cascading effect on the sale of goods and services. Removal of cascading effect has impacted the cost of goods. Since the GST regime eliminates the tax on tax, the cost of goods decreases. GST is also mainly technologically driven. All activities like registration, return filing, application for refund and response to notice needs to be done online on the GST Portal and this accelerates the processes. Unauthorized sectors who were looting the citizens has been stopped completely as the transactions are crystal clear.
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  • Jul 10, 2019
    Digital Government Better Government.   E-government has been employed to mean everything from "online government services’’ to exchange of information and services electronically with citizens, businesses, and other arms of government’. Traditionally, e-government has been considered as the use of ICTs for improving the efficiency of government agencies and providing government services online. Later, the framework of e-government has broadened to include use of ICT by government for conducting a wide range of interactions with citizens and businesses as well as open government data and use of ICTs to enable innovation in governance. E-government can thus be defined as the use of ICTs to more effectively and efficiently deliver government services to citizens and businesses. It is the application of ICT in government operations, achieving public ends by digital means. The underlying principle of e-government, supported by an effective e-governance institutional framework, is to improve the internal workings of the public sector by reducing financial costs and transaction times so as to better integrate work flows and processes and enable effective resource utilization across the various public sector agencies aiming for sustainable solutions. Through innovation and e-government, governments around the world can be more efficient, provide better services, respond to the demands of citizens for transparency and accountability, be more inclusive and thus restore the trust of citizens in their governments. E-government means electronic government , is the use of technological communications devices, such as computers and the Internet to provide public services to citizens and other persons in a country or region. Government-to-Government (G2G) involves sharing data and conducting electronic exchanges between governmental actors. This involves both intra- and inter-agency exchanges at the national level, as well as exchanges between the national, provincial, and local levels. Government-to-Business (G2B) involves business-specific transactions (e.g. payments, sale and purchase of goods and services) as well as provision on line of business-focused services. Government-to-Consumer / Citizen (G2C) involve initiatives designed to facilitate people’s interaction with government as consumers of public services and as citizens. This includes interactions related to delivery of public services as well as to participation in the consultation and decision-making process. Trust in e-governance is very highly dependent on its performance and execution, which can be measured through the effectiveness of current actions. This is much riskier and prone to fluctuation than a system of trust that is based on reputation because performance does not consider past actions. Because E-government is in the early stages of development in many countries and jurisdictions, it is hard to be applied to forms of government that have been institutionalized. Age-old bureaucratic practices being delivered in new mediums or using new technologies can lead to problems of miscommunication. E-government helps simplify processes and makes government information more easily accessible for public sector agencies and citizens. One important goal of e-government initiatives is greater citizen participation.
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  • Jun 10, 2019
    Digitalization in Legal Field In times of increased competition in the legal world and the emphasis on data protection, global legal firms have taken cognizance of the many benefits of adopting legal technology.Adopting a cloud-based practice management solution helps eliminate large upfront server and licensing costs, along with keeping the data safe from external attacks, environmental damage and loss. Compared to complicated folder systems in solutions such as Dropbox or SharePoint, case management systems are helping global law firms overcome challenges pertaining to retrieving and referring documents, linking to client information, emails, billing, task calendars, and more. Lawyers can thus stay on top of cases and deadlines, store and locate documents more effectively, and streamline processes in general. In addition, firms are also investing in server maintenance to avoid any mechanical failure.It’s about time legal firms in India, irrespective of their size, follow suit and reap the several benefits of digitization, like their global counterparts. This revolution is underway in India as well, where creating a “Digital India” has become a national priority.Here, while some industries have made progress in digitization, there are many that are just getting started. LegalNextt is one of these platform for the legal sector inorder to reduce the workload by going paperless to digital. We at LegalNextt strive for digitizing the legal industry which is the crucial part for it to be able to attract and retain talent, improve profitability, and upskill for lawyers, law graduates, law students etc in the field. Today, more than ever, younger professionals are becoming partners at legal firms. This new generation of professionals requires a more efficient and modern way of working.
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  • May 31, 2019
    The term ‘Negotiable’ means ‘transfer by endorsement or delivery’ and the term ‘Instrument’ means ‘any legal document in writing, which is created in favour of any person. Therefore, Negotiable Instruments are written statements implying payment of money, either on demand or within a particular time period with the drawer’s/payer’s name on it. In case of any related legal matter, please Post Your Requirement anonymously and get free proposals OR Search for a Lawyer and book a free appointment directly. History and background In India, Negotiable Instruments Act, 1881 codifies the law governing transactions involving negotiable instruments. As can be seen, this is a law passed during the British Era which continues till date to govern economical transactions. There are various negotiable instruments; such as cheques, promissory notes, bills of exchange, bank notes, etc. However, for day to day transactions, cheque is the most widely used negotiable instrument in businesses today. Cheques Section 6 of the Act defines a cheque as a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of ‘a truncated cheque’ and ‘a cheque in the electronic form’. Parties to a ‘cheque’ Drawer – Is the maker of the cheque. Drawee – Is the person thereby directed to pay. Payee – Is the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid. Holder – Of the cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Dishonour of cheque Section 138 was inserted into the Act vide amendment of 1988. This section covers the provision for dishonour of cheques for insufficiency etc. of funds in the account of drawer. The drawer pays off his lability to the payee through cheque and when bank returns the cheque unpaid due to insufficient balance on the account held by the drawer, the liability/debt remains due to the drawer and the amount remains unpaid. The return of cheque can be because of insufficient funds in the account or due to exceeding the limit of the amount which was agreed to be paid by the bank. Such a default by any person, creates a liability under the said provision. Section 142 of the Act deals with the cognizance of offences in compliance with the provision of Code of Criminal Procedure, 1973 (“CrPC”). Prior to 1988, in case a cheque was not honoured on presentment, the only remedy available under the Act was to file a civil suit in the court against the offender. However, this remedy did not have a desired deterrent effect on offenders and cheques started losing their credibility. Hence, the Act was amended several times to incorporate more stringent provisions to deal with dishonour. The Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 amended the Act to make dishonour of cheques a criminal liability and offenders were liable to be punished by imprisonment for a term which may extend to 1 (one) year, or with fine which may extend to twice the amount of the cheque, or with both. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 further extended the term of imprisonment to up to 2 (two) years. Filing a complaint under Section 138 of the Act For filing a complaint, the complainant needs to follow these steps; 1. Dishonour of Cheque(s): The complainant should have deposited the cheque drawn in his/its favour, which cheque(s) has been returned unpaid or has been dishonoured due to: Insufficiency of fund in the account of the drawer; Issuance of stop payment instructions by the drawer to the drawer bank; Amount of cheque exceeding the arrangement with the drawer bank. 2. Notice asking for payment of dues: This Act provides that, once the cheque has been dishonoured, a notice needs to be issued (by registered A.D.) to the drawer within 30 days of the receipt of memo from drawee bank that the cheque is dishonoured. The notice to be sent should mention the following points; The cheque issued was presented for payment in bank; The cheque was subsequently dishonoured for the reason provided by the drawee bank (which should be any of the three reasons provided in Para 1 above); Asking for payment for sum written on cheque within a period of 15 days from the date of receipt of notice. 3. Filing complaint: Where on the receipt of notice, if the drawer of the cheque remains silent or refuses to pay the money within 15 days from the date of receipt of notice, then a criminal complaint should be filed against the drawer (“Accused”) within next 30 days from the expiry of time period provided to the drawer. 4. Place of filing the complaint: The place for filing the complaint shall be determined based on any of the following; Place of the bank on which the cheque is drawn; Place where cheque is presented to the bank and the same is dishonoured; Place of residence/business of the complainant; Place of residence/business of Accused; Place from where the notice is sent to the drawer of the cheque demanding the cheque amount. 5. Contents of criminal complaint: A complaint should contain complete details about the complainant, Accused, details of the transaction, details of the notice sent to Accused, jurisdiction clause, limitation clause, prayers asking for compensation and punishment for the Accused. The complaint should also be accompanied with all the important attachments i.e. the list of witnesses, list of all original documents and copies, board resolution giving authority to a person to file complaint on behalf of the company (if applicable) etc. 6. Issuance of summons: Upon filing of complaint and completion of all procedural aspects, the Magistrate before whom the complaint is filed shall verify the documents and upon subsequent verification, shall issue summons against the Accused. 7. Post – Issuance of summons: On issuance of summons, the Accused may appear or may not appear. On appearance of the Accused; the plea of the Accused shall be recorded and the proceedings shall be conducted as per Section 262 and 265 of CrPC. Where Accused fails to appear; A Bailable warrant shall be issued against the Accused. Even after this, where the Accused fails to appear, a Non-Bailable warrant will be issued. If the Accused appears, the procedure will be the same as in the case of issuance of summons. However, If the Accused fails to secure his attendance, then by courts order, Accused shall be declared absconding and a notice shall be issued in local newspaper in respect of the same. Properties of the Accused will be attached and will be sold by public auction. Complainant can recover his dues out of the sale proceeds. 8. Orders: Upon hearing the parties, the court may pass any of the following orders; The Accused may be acquitted of all the charges; or The Accused may be held guilty of the offence committed under Section 138 of the Act and shall be penalized as follows; imprisonment up to two years; or monetary fine which may extend to twice the amount of cheque; or both imprisonment and fine; or paying off the dishonored cheque amount to the complainant. N. Harihara Krishnan v. J. Thomas The Apex court in a recent judgement held that any failure to include the company as an Accused in the complaint, filed under section 138 of the Negotiable Instruments Act, 1881 of dishonour of a cheque issued by a company, would be fatal to the prosecution of such company even if the complaint filed against the signatory of the cheque has been duly complied with. In the concerned case, the cheque was signed by the appellant, Mr. Harihara Krishnan (“Appellant”), who was authorized to sign on behalf of Dakshin Granites Pvt. Ltd. (“Company”) which is the drawer company. When the cheque was dishonoured, the complainant, Mr. J. Thomas (“Respondent”), lodged a complaint under section 138 of the NI Act against the Appellant. However, he failed to lodge a complaint against the Company. It is important to note that the Appellant drew the cheque on behalf of the Company, thereby making Company the drawer of the cheque. Respondent subsequently sought to implead Company in the complaint, which the trial court granted. Against this, Appellant filed an appeal before the High Court stating the application to implead was filed after the expiry of the limitation period, which also ruled in favour of Respondent. Appellant then appealed to the Apex Court, which then overruled both the orders. The Apex Court relied upon its earlier judgment in Aneeta Hada v. Godfather Travels & Tours Private Limited which had arrived “at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an Accused is imperative”. The offence under Section 138 is person specific and therefore there cannot be a prosecution without an Accused being a party to it. The Apex Court further observed, the decision is embedded largely in the procedural aspects of initiating and maintaining prosecution for offences of cheque dishonour. When a cheque is drawn on behalf of a company, it necessarily has to be signed by an authorised signatory (director, officer or other suitable person), so at the time of initiation of proceedings against the company, it is not sufficient to bring a complaint against the actual signatory, but to bring an action (within the stipulated time) against the company as well. Here in the present case, the Respondent made the Company a party to the suit, but there was a delay of 1211 days. Finally, the Apex Court was concerned with the question of whether the delay on the part of the complainant in impleading the Company can be condoned, which it answered in the negative and subsequently the appeal filed by the Appellant was allowed. Scenario after 2015 Amendment Act Jurisdiction to file cases of cheque bouncing has now been changed by Negotiable Instruments (Amendment) Act, 2015 (“Amendment Act”) which came into effect on 15th June, 2015. As per this Amendment Act, a cheque dishonour case under Section 138 needs to be filed in the court as per provisions of Section 141(1) and 142(2), and even all pending cheque bouncing cases shall also get transferred to the courts as per this Amendment Act. The Amendment Act states that if the cheque is delivered through an account then the court having local jurisdiction over the branch where the payee or the holder maintains the account would try the case. If the transfer is made otherwise, the court having jurisdiction over the drawee bank would entertain the case. The Amendment Act further requires all the subsequent complaints arising out of Section 138 against the same drawer to be filed in the same court as the first complain, if it is still pending in the court, irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court This Amendment Act superseded the judgement of Supreme court in the matter of Dashrath Rupsingh Rathod v. State of Maharashtra. In this case, a 3-Judge bench of the Supreme Court had held that a cheque bouncing case can be filed only in a court which has the territorial jurisdiction over the place where the cheque is dishonoured by the bank on which it is drawn. Several people raised difficulties over this because the payee of the cheque had to file a case at the place where drawer of the cheque has a bank account. However, now the legal position has completely changed which can be well understood from the following case; Bridgestone India Pvt.Ltd. Vs. Inderpal Singh; In the following case, Bridgestone India Pvt. Ltd. (“Petitioner”) had filed a case against Inderpal Singh (“Respondent”) for dishonour of Cheque drawn on a bank at Chandigarh. The cheque was presented at a bank of Indore where Petitioner resides and was subsequently dishonoured. A petition was filed against the Respondent. The Respondent prayed to the court that Indore court had no jurisdiction to entertain this aforesaid proceeding, which was eventually accepted by court applying the Dashrath Rupsingh Rathod case which stated that jurisdiction lays only before the court in whose jurisdiction original drawee bank was located, which is Chandigarh in the present case. An appeal was filed in the Supreme court by the Petitioner challenging the order. The court held that, the new Ordinance vests jurisdiction for initiating proceedings under Section 138, inter alia, in territorial jurisdiction of court where cheque is delivered for collection (through an account of branch of bank where payee or holder in due course maintains an account). Therefore, in the following case, Section 142(1)(a) gives jurisdiction to Indore court to entertain the aforesaid proceedings and the judgement rendered in the Dashrath Rupsingh Rathod case shall not stand in any way of Petitioner insofar as territorial jurisdiction for initiating a proceeding emerging from dishonour is Cheque is concerned.
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