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1991 DIGILAW 730 (MAD)

HAMOSONS APPARELS PVT. LTD. v. SIVAN TEXTILES

1991-10-01

PRATAP SINGH

body1991
Judgment : PRATAP SINGH, J. ( 1 ) - The accused in C. C. 164 of 1991 on the file of Judicial Magistrate No. III, Erode, have filed this petition under section 482 Criminal Procedure Code, praying to call for the records in the aforesaid case and quash the same. ( 2 ) THE respondent has filed the complaint against the petitioners, arraying them as accused 1 to 3. The allegations in it are briefly as follows: The complainant is manufacturing textile goods and supplying it to the first accused of which accused 2 and 3 are Directors. During the course of the dealings; the accused issued two post, dated cheques on 18. 10. 1990 for Rupees Five Lakhs and Rs. 2,57,598/- respectively dated 19. 10. 1990 and 29. 10. 1990 respectively. The complainant presented the cheques for collection through Tamil Nadu Mercantile Bank Ltd. , Mount Road, Madras. They were returned with an endorsement exceeds arrangement. Matter being intimated about the dishonour of the cheques, accused 2 and 3 requested the complainant to represent the two cheques during last week of March and promised that the same would be honoured. The complainant represented the cheques on 28. 3. 1990. They were again returned with the endorsement exceeds arrangement on 2. 4. 1991. The complainant received the intimation on. 3. 4. 1991. The complainant issued notice on 13. 4. 199 1 calling upon the accused to make the payment due on the dishonoured cheques within 15 days of the receipt of notice. The accused received the notice on 15. 4. 1991. But they have not paid the amount within 15 days. Hence the complaint. ( 3 ) MR. Amruddin, the learned counsel appearing for the petitioners, would state that the cheques were issued at Madras and they were presented for collection in Tamil Nadu Mercantile Bank Ltd. , Mount Road, Madras and they were dishonoured and the offence was committed only at Madras and the court of Judicial Magistrate No. III, Erode has got no jurisdiction to try the case. Per contra, Mr. Per contra, Mr. V. K. Muthusamy, the learned counsel appearing for the respondent, would contend that under section 178 Criminal Procedure Code, if an offence consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of the said local areas and an offence under section 138 Negotiable Instruments Act consists of various act and mere dishonour is not itself an offence and the cause of action for the offence arises only after the expiry of 15 days, after service of notice on the accused calling upon him to pay the amount due under the dishonoured cheques and as such every requisite prior to the cause of action arises put together constitute an offence and the issued of statutory notice was at Erode and hence the court at Erode has got jurisdiction to try the case. ( 4 ) FOR appreciating the contentions of the learned counsel, section 178 (d) Criminal Procedure Code needs extraction. It reads as follows: 178. Place of inquiry or trial. (d), where it 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. Section 138 Negotiable Instruments Act also needs extraction. It read as follows: 138. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other. provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both; Provided that nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of the receipt-of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation-For the purposes of this section debt or other liability means legally enforceable debt or other liability. As per section 138 (b), the payee making a demand for the payment of the said amount, of money by giving a notice in writing to the drawer of the cheque is one requisite. In page 3 of the typed set, filed by the petitioner, copy of notice sent by the respondent herein is filed. From it, I find that it was issued at Erode on 13. 4. 199 1. As such, the notice contemplated under section 138 (b) of the Negotiable Instruments Act and which is a requisite for making out the offence, was issued at Erode. Under section 178 (d) Criminal Procedure Code, the court at Erode also has got jurisdiction to try the case. Furthermore, as per section 138 (c) Negotiable Instruments Act, if there is failure to make the payment of the said amount within 15 days of the receipt of notice, the complaint is to be filed. The respondent is at Erode. The payment which is to be made within 15 days of receipt of notice can be made only at Erode. In this view of the matter also a part which constitute offence would be only at Erode. I find the submission made by Mr. The respondent is at Erode. The payment which is to be made within 15 days of receipt of notice can be made only at Erode. In this view of the matter also a part which constitute offence would be only at Erode. I find the submission made by Mr. Muthusamy is to be accepted. Me. Amruddin, relied upon the ruling reported in Jugal Kishore Arun v. Neelakandan. In it, Justice Bellie has stated that when the cheque is issued without sufficient funds in the bank, the offence is committed. In that case, the cheque was issued within the jurisdiction of XIII Metropolitan Magistrate, Madras. So the learned Judge has held that XIII Metropolitan Magistrate can take cognizance of the case. It is pertinent to note that the learned Judge has not stated that it is the only court which can take cognizance of the court. So this ruling would not support the contention of the learned counsel for the petitioner that court at Erode does not have jurisdiction to try the case. ( 5 ) IN view of the above, the petition fails and is dismissed. Petition dismissed.