Misc. Criminal Case No.1233 of 2009

3rd March, 2009

Petitioner Counsel: Mr. V. K. JAIN, Mr. VISHAL VERMA, Mr. P. JOSHI, Mr. LOKESH MEHTA , Mr. GAURAV CHHABRA

Cases Cited:
K. Bhaskaran Vs. Sankaran Vaidhyan Balan, 1999(4) ALL MR 452 (S.C.) =AIR 1999 SC 3762 [Para PARA5,9,11,13]
Smt. Shamshad Begum Vs. B. Mohammed, 2008 ALL MR (Cri) 3547 (S.C.) =2008(2) DCR 641 : 2009 AIR SCW 775 [Para PARA9,13]
Harman Electronics Vs. National Panasonic India Ltd., 2008 Cr.L.J. (SC) 928 [Para PARA10,13]

JUDGMENT

-Being aggrieved by the order dated 20.1.2009 passed by JMFC, Indore, in Criminal Case No.10 of 2008, whereby the private complaint filed by the petitioner under Sec. 138 of Negotiable Instruments Act (which shall be referred hereinafter as N.I. Act), was dismissed on the ground that the learned Court below in having no jurisdiction to entertain the complaint on account of want of territorial jurisdiction, present petition has been filed.

2. Short facts of the case are that the petitioner filed a private complaint under Sec. 138 of N.I. Act against the respondent who is resident of Dewas, alleging that a cheque was issued by the respondent which was dishonoured. It was alleged that inspite of notice amount was not paid. It was prayed that petition be allowed and respondent be convicted.

3. After filing of the complaint at the initial stage an objection was raised by the learned Court below to the effect that the Court is not competent to entertain the complaint for want of territorial jurisdiction. After hearing the petitioner, by the impugned order, the learned Trial Court held that the complaint filed by the petitioner is without jurisdiction and the same is returned to the petitioner to file before the competent Court, against which the present petition has been filed.

4. Learned counsel for the petitioner argued at length and submits that the impugned order is illegal, incorrect and deserves to be set aside. It is submitted that the impugned order is without any basis.

5. Shri. V. K. Jain, learned counsel for the petitioner submits that the places where private complaint can be filed under Sec. 138 of the N.I. Act is decided by the Hon'ble Apex Court in the matter of K. Bhaskaran Vs. Sankaran Vaidhyan Balan, reported in AIR 2999 SC 3762 : [1999(4) ALL MR 452 (S.C.)]

, wherein Hon'ble Apex Court in a case filed under Sec.138 of N.I. Act has observed that the conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in clause (b) and (c) of the proviso to Sec.138(1) of the N.I. Act. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer in the correct address.

6. The offence under Sec. 138 of the Act can be completed only with the con-catenation of a number of acts. Following are the acts which are components of the said offence : (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, (5) failure of the drawer to make payment within 15 days of the receipt of the notice.

7. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Sec. 138 of the Act. In this context a reference to Sec. 178(d) of the Code is useful. It is extracted below :

"Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas."

8. Thus it is clear, if the five different acts were done in five different localities any one of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Sec. 138 of the Act. In other words, the complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which say one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Sec.138 of the Act.

9. Learned counsel submits that in the matter of Smt. Shamshad Begum Vs. B. Mohammed, 2008(2) DCR 641 :[2008 ALL MR (Cri) 3547 (S.C.)], the Hon'ble Apex Court has followed the decision given in the matter of K. Bhaskaran, [1999(4) ALL MR 452 (S.C.)] (supra) and has further observed that it is possible that each of those five acts could be done at five different localities hence each of place that Court has jurisdiction to try complaint under Sec. 138 N.I. Act.

10. Learned counsel submits that number of complaints are being filed by the complainants under Sec. 138 of N.I. Act, before the learned Courts below and the same are being returned only on the ground that the Court is not having jurisdiction because the respondent/accused is not residing in the territorial jurisdiction of the concerned Court. It is submitted that this inference is being drawn by the learned Courts below on the basis of judgment dated 12.12.2008 in the case of Harman Electronics Vs. National Panasonic India Ltd., 2008 Cr.L.J. (SC) 928. Learned counsel submits that in the said case the complaint was filed by the company whose head office was at Delhi, however, the company was having branch offence for conducting the business at Chandigarh. The accused persons were living at Chandigarh. The transaction also took place at Chandigarh and cheque was issued at Chandigarh. While resolving the dispute Hon'ble Apex Court has observed that the complainant presented aforesaid cheque for encashment through its banker Citi Bank NA. The Punjab and Sindh Bank, the banker of the accused returned the said cheque unpaid with an endorsement "Payment stopped by drawer" vide their memo dated 30.12.2000. The aforesaid memo dated 30.12.2000 was received by the complainant on 3.1.2001. The only question, therefore, which arose for consideration was that whether Court at Delhi had no jurisdiction to try the private complaint under N.I. Act? While answering this question Hon'ble Apex Court has observed that we cannot, as things stand today, be oblivious of the fact that banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different place but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-a-vis the provisions of the Code of Criminal Procedure.

11. It is submitted that in the order impugned herein, reliance is placed to the decision in the matter of K. Bhaskaran, [1999(4) ALL MR 452 (S.C.)] (supra) wherein it has been held that the criminal case can be filed where the offence has been committed. It is submitted that there are more than five thousand complaints which have been filed by the Advocates before different Courts of Judicial Magistrate First Class at Indore, but all of them were returned without passing any order.

12. At this stage Shri. Gaurav Chhabra, Shri. Vishal Verma and other Advocates, who are present in Court, submits that the complaints filed by them have also been returned by the learned JMFC, Indore, in the same manner.

13. After hearing the counsel for petitioner and also number of advocates of this Bar, this Court is of the opinion that the judgment of the Hon'ble Apex Court in the matter of Harman Electronics (supra) is in different context and in that also the Hon'ble Apex Court has held that the criminal case can be filed at the place where the cheque was placed and the accused is residing and the transaction has taken place and the cheque was presented for collection, therefore, in the opinion of this Court, the impugned order passed by the learned Trial Court whereby petitioner was directed to file the complaint before the appropriate Court, cannot be sustained and is hereby quashed with the direction that the complaint filed under Sec. 138 N.I. Act before the learned Court below be entertained in accordance with law as directed by Apex Court in the matter of K. Bhaskaran Vs. Sankaran Vaidhyan Balan, reported in AIR 1999 SC 3762 : [999(4) ALL MR 452 (S.C.)] and Smt. Shamshad Begum Vs. B. Mohammed, reported in 2009 AIR SCW 775 : [2008 ALL MR (Cri) 3547 (S.C.)], wherein Hon'ble Apex Court has observed that the offence under Sec.138 can be completed only with the concatenation of a number of acts. The acts which are components are as follows:

(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;

(5) Failure of the drawer to make payment within 15 days of the receipt of the notice.

14. Hon'ble Apex Court has further observed that if the five different acts were done in five different localities any one of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Sec.138 of the Act. In other words, the complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.

15. It will not be out of place to that vide order dated 6.2.2009 in M.Cr.C. No.1203 of 2009 which is also being disposed of by this order, learned Sessions Judge, Indore, was directed to submit the report as the complaint of advocates was that the complaints filed by them are being returned verbally without passing any order on the ground that the Court is not having the territorial jurisdiction, in compliance of that Sessions Judge, Indore, has submitted its report dated 13.3.2009 alongwith explanation of concerned JMFC, Indore, dated 13.2.2009 which is not at all satisfactory. Learned Sessions Judge, Indore, is further directed to look into the matter seriously and should see that no complaint should be returned to any of the complainant by any of JMFC, Indore, without passing a reasoned order.

With the aforesaid observations, the petitions stand disposed of.

A copy of the order be placed in Cr.R. No.1202 of 2009 and Cr.R. No.1203 of 2009.

Petition allowed.