Research › Browse › Judgment

Madras High Court · body

1993 DIGILAW 777 (MAD)

RAHMATHULLAH v. RAMALINGAM

1993-11-24

ARUNACHALAM

body1993
Judgment : ARUNACHALAM, J. ( 1 ) Petitioner Rahmathullah is the sole accused in C. C. No. 2808 of 1989 pending on the file of Judicial Magistrate, Tambaram. He is being prosecuted for having allegedly committed an offence punishable under Section 138 of the Negotiable instruments Act, on a private complaint instituted by respondent Ramalingam. In this petition preferred under Section 482 Cr. P. C. to call for the records and quash the pending prosecution as not maintainable and an abuse of process of Court, three grounds were urged by Sri Krishnamoorthi, petitioners Counsel : (1) Cheque concerned was drawn on Canara Bank, Park Town, Madras-3 and it was presented for encashment at Tamilnadu State Co-operative Bank Ltd. , pariamet, Madras. However, the complaint has been preferred by the Judicial magistrate, Tambaram under whose jurisdiction neither Park Town, Madras nor periamet, Madras lies. Therefore, cognizance of the complaint by Judicial Magistrate, tambaram, was one without jurisdiction. (2) Statutory notice contemplated under the Negotiable Instruments Act was forwarded with insufficient address, leading to its return without service. In view of insufficiency of address, respondent has deprived the petitioner of an opportunity to make payment within the period afforded under proviso (c) of section 138 of the Negotiable Instruments Act. (3) Statutory notice sent by the respondent was returned to him on 11. 11. 1989. Period of limitation must be reckoned from the said date and 15 days time must be afforded to the petitioner from 11. 11. 1989 and hence institution of the complaint on 25. 11. 1989 is barred by limitation. ( 2 ) ON these three grounds, I have heard Mr. N. Ranganathan, learned Counsel representing the respondent. He submitted that the transaction, which resulted in the liability of the petitioner, has taken place within the jurisdiction of Judicial Magistrate. Tambaram, for the place of business of the respondent is Pallaveram. Even otherwise, he contended that merely because of lack of territorial jurisdiction prosecution cannot be halted, unless failure of justice is apparent. On the second ground, he submitted that statutory notice was sent to the address provided by the petitioner himself, which he has chosen to imprint in the petition preferred before this Court to have the impugned prosecution quashed. Hence, it cannot be contended that statutory notice was issued with insufficient address and thereby the petitioner was prevented from making payment of the proceeds of the cheque. Hence, it cannot be contended that statutory notice was issued with insufficient address and thereby the petitioner was prevented from making payment of the proceeds of the cheque. In any event, he submitted that this was a question of fact, which may have to be appreciated by the trial Magistrate, after sufficient evidence is brought on record. On the last ground, he contended that 11. 11. 1989 was only the date of return to the respondent and that cannot form the basis for reckoning limitation. ( 3 ) I have carefully consider the divergent contentions advanced, with some amount of concern. Both Counsel have relied upon certain decided cases, which I will refer to at the appropriate time. ( 4 ) UNDER Section 138 of the Negotiable Instruments Act, the cheque drawn obviously relates to any debt or other liability. So, the basis for issue of a cheque is existence of a debt or other liability. Only after the issue of such a cheque, presentation to the Bank, return by the Bankers, issue of statutory notice affording of time to the drawer to pay the proceeds of the cheque and thereafter institution of the prosecution, all within certain time-frame, can arise. If the question of jurisdiction, will have to be decided only on the basis of the Bank on which the cheque was issued and the Bank through which collection was sought to be made, then probably, the impugned prosecution may not fall within the territorial jurisdiction of the Judicial Magistrate, tambaram. Negotiable Instruments Act does not refer to the jurisdiction vested in any particular Court on happening of certain events and naturally recourse will have to be had to the provisions of the Criminal Procedure Code. If the liability or debt which is the subject matter of the cheque drawn, had arisen within the jurisdiction of Judicial magistrate, Tambaram I see no valid ground as to why the instant prosecution instituted before the Judicial Magistrate, Tambaram can be one without jurisdiction. Under Section 178 Cr. P. C. Sub-clause (d), it is clear, that where the offence committed 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 area. Under Section 178 Cr. P. C. Sub-clause (d), it is clear, that where the offence committed 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 area. Similarly under Clause (c) where an offence is a continuing one and continues to be committed in more local areas than one, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. I am unable to hold that the impugned prosecution has been initiated before a Court which lacks jurisdiction. ( 5 ) IN State of Karnataka v. Kuppuswamy Gownder, A. I. R. 1987 S. C. 1354 supreme Court stated as hereunder : "reading Section 462 along with Section 465 clearly goes to show that the scheme of the Criminal RC. is that where there is no inherent lack of jurisdiction merely either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure an order or sentence awarded by a competent Court cannot be set aside unless a prejudice is pleaded and proved which will mean failure of justice. Even if a trial takes place in a wrong place where the Court has no territorial jurisdiction to try the case, still unless failure of justice is pleaded and proved, the trial cannot be quashed. " That was a case where the High Court set aside the conviction and remanded the case for retrial merely because the case was transferred to another Sessions Judge after the charge was framed. Even at the preliminary stage, in the instant case, question of jurisdiction has been raised before me and answered holding that Judicial Magistrate, tambaram does have jurisdiction, for the reasons stated earlier. ( 6 ) IT will be necessary to have a quick look at the decisions cited by petitioners counsel on the issue of jurisdiction. ( 7 ) IN Jugal Kishore Arun v. VA. Neelakandan, 1990 L. W. (Crl.) 492, Bellie j. observed that a prosecution for issuing of a cheque without sufficient funds in the bank, will have to be instituted before the Court within whose jurisdiction the cheque was issued. ( 7 ) IN Jugal Kishore Arun v. VA. Neelakandan, 1990 L. W. (Crl.) 492, Bellie j. observed that a prosecution for issuing of a cheque without sufficient funds in the bank, will have to be instituted before the Court within whose jurisdiction the cheque was issued. Learned Judge has not given any reason for his conclusions and hence the observations made therein will have to be restricted to the facts placed before the learned judge, which cannot attract universally, every prosecution initiated under Section 138 of the Negotiable Instruments Act. ( 8 ) IN P. K Muraleedharan v. Pareed and another, 1992 (Suppl.) MWN Cri. 85 : [vol. 1 DCTC 254], Kerala High Court stated that the venue of enquiry or trial has primarily to be determined by the averments contained in the complaint. If on the basis of such averments the Court has jurisdiction it has to proceed with the complaint. The further observation made by the Kerala High Court is that the place where the creditor resides or the place where the debtor resides cannot be said to be the place of payment unless there was any indication to that effect either expressly or impliedly. The cause of action as contemplated in Section 142 of the Negotiable instruments Act arises at the place where the drawer of the cheque fails to make payment of the money. That could be the place where the Bank to which the cheque was issued is located. It can also be the place where the cheque was issued or delivered. The Court within whose jurisdiction any of the above mentioned places falls has, therefore got jurisdiction to try the offences under Section 138 of the Negotiable instruments Act. I am unable to give such a narrow interpretation to the question of jurisdiction as sought to be postulated by the Kerala High Court. Under Section 142 of the act, it will not be possible to conclude, that the cause of action as contemplated therein can arise only at the places where the drawer of the cheque failed to make payment of money or where the cheque issue bank is located, or where the cheque was issued or delivered. Under Section 142 of the act, it will not be possible to conclude, that the cause of action as contemplated therein can arise only at the places where the drawer of the cheque failed to make payment of money or where the cheque issue bank is located, or where the cheque was issued or delivered. As I have already stated, the place where the debt or liability arose cannot be excluded, while looking into the averments made in the complaint, to decide the question of jurisdiction; for the reason, effect and cause are so intermingled. ( 9 ) HIGH Court of Punjab and Haryana in M/s. Ess Bee Food Specialities and others v. M/s. Kapoor Brothers, 1992 (Supple) MWN (Cri.) 132 : [vol. 1 DCTC 141], on the question of jurisdiction stated as hereunder : "as to the question of jurisdiction, it is to be considered that the issuance of the cheques and their dishonouring are only a part of cause of action; the offence was complete only when the petitioners failed to discharge their liability to the respondent-firm. For discharging a debt, it is the debtor who has to find out his creditor and since in the present case, the respondent, who is the creditor, has its office at panchkula, the Court at Ambala had the territorial jurisdiction to try the offence complained of. " This judgment of Punjab and Haryana High Court, clearly echoes my view expressed earlier. ( 10 ) CALCUTTA High Court in Indmark Finance and Investment Co. v. State and others, 1992 (Suppl) (2) MWN (Cri.) 136, while considering the territorial jurisdiction of a cheque drawn on the Bank at Calcutta and forwarded to Bombay and produced for encashment at Calcutta, where it was dishonoured, held that the cause of action had arisen wholly in Calcutta where the alleged offence under Section 138 of the Negotiable Instruments At was committed, and not in Bombay. Therefore, the offence was to be tried by a competent criminal Court in Calcutta. Facts narrated by the Calcutta High Court clearly show that no part of the transaction arose within the jurisdiction of the Bombay High Court. This decision, obviously, cannot help the case of the petitioner. The first ground shall stand negated. ( 11 ) SECOND contention has no merit whatever. Facts narrated by the Calcutta High Court clearly show that no part of the transaction arose within the jurisdiction of the Bombay High Court. This decision, obviously, cannot help the case of the petitioner. The first ground shall stand negated. ( 11 ) SECOND contention has no merit whatever. As rightly pointed out by respondents counsel, statutory notice had been forwarded, by the respondent to the petitioner, to the exact address furnished by the petitioner, even in the impugned petition preferred before this Court to have the pending prosecution quashed. If the petitioner had chosen to furnish a particular address to the respondent and to that address statutory notice was forwarded, petitioner cannot turn round and allege that the address was insufficient and therefore, statutory notice had to be returned, without service. Anyhow, if the factual details are different, it will always be open to the petitioner to put forth his case, on the basis of such material which shall form part of his defence, for appreciation by the trial Magistrate, during the course of trial. On the second ground, inherent powers cannot be exercised. On the last ground as well, I am unable to agree with petitioners Counsel. Decision of Partap Singh, J. , in G. Vasudevan v. Rajammal, 1992 (1) MWN (Cri.) 241 was brought to my notice by petitionerss Counsel on this aspect. That was a case where the notice was returned undelivered on 22. 9. 1924. Employees State Insurance act, 1989 (1) A. L. T. 38. 90 and the complaint was filed on 7. 11. 1990. While computing the period of limitation, learned Judge, held, that the date of service of notice should be excluded and that the period of 15 days shall have to be calculated, excluding the date of service. One month should be calculated after the expiry of 15 days thereof. The period of limitation, therefore, would commence from the 16th day after the receipt of notice by the petitioner. In that case decided by the learned Judge, notice was returned to the complainant on 22. 9. 1990. If that was taken as the date of constructive notice, it was held that 15 days thereof would come to an end on 7. 10. 1990 and, therefore, the complaint filed on 7. 11. 1990 was within time. In that case decided by the learned Judge, notice was returned to the complainant on 22. 9. 1990. If that was taken as the date of constructive notice, it was held that 15 days thereof would come to an end on 7. 10. 1990 and, therefore, the complaint filed on 7. 11. 1990 was within time. It is not as though, the learned judge, has held, that the constructive date of service should always be taken as the date of receipt of the returned notice by the complainant. In that case, even if that returned date was taken into consideration the prosecution was held to be within time. ( 12 ) UNDER Section 27 of the General Clauses Act, it is possible to deem constructive service having been effected; at the time at which the letter would be delivered in the ordinary course of post, if the communication was properly addressed and it was forward by registered post after pre-payment. I have already held, that the address to which the communication was addressed, atleast prima facie, was the address furnished to the respondent by the petitioner. It will be possible to draw into operation the deeming provision under Section 27 of the General Clauses Act to hold that the notice issued on 2. 11. 1989 should be deemed to have been delivered unless the contrary is proved, at the time at which the letter would have been delivered in the ordinary course of post. Communication was sent through a lawyer at Poonamallee to the petitioner at Choolai, Maras. In the ordinary course, such communication can be expected to be delivered by the postal authorities on the next day or day after. If that is reckoned as the date for calculating limitation, the impugned prosecution will be well within time. If the petitioner is able to challenge that effecting of service would not fall within the deeming provision contemplated under Section 27 of the General Clauses act, it will be still open for him, to do so before the trial Magistrate. I am satisfied that the inherent powers cannot be exercised to halt the prosecution on this ground also. ( 13 ) ALL the grounds are rejected. This petition, which has no merit, shall stand dismissed. Petition dismissed.