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2004 DIGILAW 459 (GAU)

Bhabesh Ch. Baroowa v. Escorts Finance Ltd.

2004-08-09

AMITAVA ROY

body2004
JUDGMENT Amitava Roy, J. 1. The maintainability of a Criminal Proceeding registered against the Petitioner under Section 138 of the Negotiable Instrument Act, 1881 (hereafter referred to as the Act) and Section 420 IPC, on a complaint filed by the Opposite Party on 6.11.2001 in the Court of the Chief Judicial Magistrate, Gurgaon, is in question. 2. I have Mr. S.P. Roy, Advocate for the Petitioner and Mr. D. Baruah, Advocate for the Opposite Party. 3. The factual background of the writ proceeding needs to be set out to comprehend the controversy. The Petitioner, who claims to be a Class A contractor registered with the Assam Government, had entered into a hire purchase agreement with the Opposite Party at New Delhi on 13.5.96. The subject matter, thereof, was an Excavator Loader, escorts JCB 5D Model, Engine No. BXGM 034056, Chassis No. 50325 valued at Rs. 14,85,000/-. The hire purchase charges was fixed @ of 8.75% per annum and the amount was payable by 36 monthly installments of Rs. 1,56,235/-. An amount of Rs. 3,71,250/- was also made over by the Petitioner as security deposit. According to the Petitioner, two undated cheques being Nos. 0104203 and 0104204 were issued by him at the time of the agreement as collateral security but not for encashment against any liability. The understanding, as the Petitioner maintains was that the cheques would be returned on the liquidation of the loan amount. A notice dated 25.9.01, issued by Shri Arun Kumar, Advocate for the Opposite Party was thereafter served on the Petitioner asking him to make payment of Rs. 3,12,470/- being the amount of the cheques within 15 days of the receipt thereof. The Petitioner replied through his Advocate on 5.10.2001 reiterating that the cheques were only a collateral security and not meant for encashment as agreed to by the parties. It was, thereafter, that he received a notice issued by the Court of the learned Judicial Magistrate, First Class, Gurgaon, requiring him to answer to a complaint under Section 138 of the Act and Section 420 IPC. According to the Petitioner, he had paid the dues through Bank Drafts, which were sent to the Opposite Party from Guwahati, and further as the agreement was executed at Delhi, no cause of action had arisen for the complaint at Gurgaon and therefore the Court below had no jurisdiction to entertain the same. According to the Petitioner, he had paid the dues through Bank Drafts, which were sent to the Opposite Party from Guwahati, and further as the agreement was executed at Delhi, no cause of action had arisen for the complaint at Gurgaon and therefore the Court below had no jurisdiction to entertain the same. The Petitioner besides alleging that the dates 20.6.2001 and 20.7.2001 in the cheques had been inserted later on by the Opposite Party, also accused it of suppression of material facts relating to the arbitration proceeding in terms of the arbitration clause in the agreement which in the meantime had concluded resulting in an award on 30.11.99. The Petitioner has asserted that in the above factual scenario, this Court has the territorial jurisdiction to invoke its powers under Article 226 of the Constitution of India to quash the complaint and the related proceeding. 4. The Opposite Party has been prompt in returning the compliments. It has emphatically asserted in its counter that the present petition under Article 226 of the Constitution of India is not maintainable inasmuch as no cause of action has arisen therefor, within the territorial jurisdiction of this Court. According to it, the contents of the complaint petition disclose a clear case under Section 138 of the Act read with the Section 406 and 420 IPC against the Petitioner and on merits as well this Court would not interfere with the criminal proceeding. While denying the contention that the cheques were only by way of collateral security, the Opposite Party has categorically asserted that those were issued by the Petitioner in discharge of this debt under the hire purchase agreement. The assertion that the cheques were undated at the time of issue and that the dates thereon had been inserted later on have been emphatically denied. The cheques having been presented at Gurgaon and the information about the same being dishonoured having been communicated to the Opposite Party also at the same place, the Court at Gurgaon, according to the opposite party has the jurisdiction to try the complaint. No part of the cause of action having arisen within the territorial limits of this Court, the Opposite Party has maintained that this Court has no jurisdiction to exercise its powers under 226 of the Constitution of India. 5. Mr. No part of the cause of action having arisen within the territorial limits of this Court, the Opposite Party has maintained that this Court has no jurisdiction to exercise its powers under 226 of the Constitution of India. 5. Mr. Roy has argued that the Criminal Court at Gurgaon has no territorial jurisdiction to entertain the complaint and therefore, continuance of the impugned proceeding would be an abuse of the process of the Court. On merits, it has been contended that the cheques involved were not issued against any debt or liability but only as collateral security and therefore, the provision of Section 138of the Act being not attracted to the facts of the instant case, the complaint on the face of it is not maintainable in law as well as on facts. According to Mr. Roy, the contextual facts reveal that the cause of action, if any, for the complaint had arisen either at Delhi or at Guwahati and therefore, the complaint in a Court at Gurgaon was ex facie not maintainable. Mr. Roy has further contended that the cheques at the time of issue were undated and thus were merely bills of exchange under the Act and could not have been the subject matter of an offence under Section 138 thereof. According to him, the remark of the banker of the Opposite Party, "referred to drawer" did not constitute dishonour of the cheques within the meaning of the Section 138 of the Act and therefore, no offence thereunder even prima-facie had been made out against the Petitioner. Pointing out that in the meantime the arbitration proceeding arising out of the hire purchase agreement had already been concluded on 30.11.99, Mr. Roy urged that there was therefore no occasion for the Petitioner to issue the cheques in question thereafter and this wholly exposed the falsity of the allegations in the complaint. The Opposite Party having suppressed this fact and having withheld from the Court that the cheques were undated at the time of issue the complaint is liable to be quashed on that ground alone. He further contended that the complaint was otherwise not maintainable inasmuch as the same has not been filed by a Director of the Opposite Party Company. In all Mr. He further contended that the complaint was otherwise not maintainable inasmuch as the same has not been filed by a Director of the Opposite Party Company. In all Mr. Roy contended that the complaint was a lame prosecution and the cognizance of the alleged offence by the learned Court below at Gurgaon being parse mechanical, it is a fit case where a writ of certiorari be issued to quash the impugned criminal proceeding. The learned Counsel in buttressing his contentions relied on the following decisions. Navin Chandra Majithia v. State of Maharastra and Ors. : (2000) 7 SCC 640 , Ashok Yeshwant Badeve v. Surendra Madhavrao Nighojakar and Anr. (2001) 2 CriL.J. 1674, Shri Ishar Alloys Steels Ltd. v. Jayaswals NECO Ltd. (2001) 2 CriL.J. 1250, M/s. Adithya Alkalods Ltd. and Ors. v. M/s. NCC Finance Ltd. and Anr. (2001) 2 CriLJ 1585, M/s Pawan Enterprises v. Satish H. Verma (2003) 2 CriLJ 2146, Trilok Singh and Ors. v. Satya Deo Tripathi (1979) AIR SC 850, Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors. : (2001) 6 SCC 463 , Uma Maheshwar Reddy v. R. Srinivasa Rao and Anr. 2003 CriL.J. NOC 142, S.N. Banur and Ors. v. M/s. Klen and Marshalls Mrfs and Exporters Pvt. Ltd.(2002) 4 CriLJ 4155, Vijayalakshmi W/o Murali alias Muraleedharan and Anr. v. Kunnath Kumaran's Son Vasudevan and Ors. (1999) 4 SCC 656 : 2004 AIR SC 2766, Amal Chandra Lahkar and Anr. v. Binu Sharma and Ors. : (2000) 2 GLT 322. 6. Per contra, Mr. Baruah has argued that the instant application under Article 226 of the Constitution of India is not maintainable for lack of territorial jurisdiction of this Court. He has maintained that the cause of action, assuming there be any, for a proceeding to question the maintainability of the complaint had arisen at Gurgaon which is beyond the territorial limits of this Court and therefore, the proceeding in hand not being maintainable on the face of the records is liable to be dismissed in limine. According to him the act of filing the complaint constitutes the cause of action and therefore, only the High Court having territorial jurisdiction over the Court at Gurgaon can entertain an application under Article 226 of the Constitution assailing the maintainability thereof. According to him the act of filing the complaint constitutes the cause of action and therefore, only the High Court having territorial jurisdiction over the Court at Gurgaon can entertain an application under Article 226 of the Constitution assailing the maintainability thereof. He referred to Section 2(e) of the Criminal Procedure Code defining "High Court" as well as Section 186 thereof in support of his said contention. The learned Counsel further argued that the complaint fully discloses the essential ingredients of the offence under Section 138 of the Act and Section 420 and 406 IPC and therefore the learned Court at Gurgaon was perfectly justified in taking cognizance thereof. 7. Focussing on the facts involved, the learned Counsel urged that in the instant case, the presentation of the cheques by the Opposite Party was at its bank at Gurgaon and the intimation about the same being dishonoured was also communicated by its banker at the same place. According to him, in law there is a presumption that the cheques had been issued against a debt or liability, the burden being on the drawer to rebut the same. He contended that the reliefs prayed for in the instant petition being vague, the same is liable to be dismissed on that ground alone. Mr. Baruah asserted that in any view of the matter, this Court in exercise of its writ jurisdiction would not, at this stage of criminal trial, undertake an enquiry to ascertain the correctness or otherwise of the allegations made in the complaint and as the materials on record unequivocally demonstrate commission of offences under the Act as well as the IPC, this Court would not interdict the criminal proceeding. Mr. Baruah sought to draw sustenance from the following authorities. K. Bhaskaran v. Sankaran Vaidhyan Banan and Ors. : (1999) 7 SCC 510 . K.N. Beena v. Muniyappan and Anr., : (2001) 8 SCC 458 . M.M.T.C. Ltd. and Anr. v. Medical Chemicals and Pharma (P) Ltd. : (2002) 1 SCC 234 . Union of India and Ors. v. Adani Exports Ltd., and Anr. : (2002) 1 SCC 567 . Dayta Shanker Bhardwaj v. Chief of the Air Staff, New Delhi and Ors. : AIR 1988 All 36 . 8. The preliminary objection pertaining to the maintainability of the writ petition for want of jurisdiction of this Court commends for immediate attention. Union of India and Ors. v. Adani Exports Ltd., and Anr. : (2002) 1 SCC 567 . Dayta Shanker Bhardwaj v. Chief of the Air Staff, New Delhi and Ors. : AIR 1988 All 36 . 8. The preliminary objection pertaining to the maintainability of the writ petition for want of jurisdiction of this Court commends for immediate attention. The source of power of the High Court to exercise its writ jurisdiction and its scope and amplitude is traceable to Clause (1) and (2) of Article 226 of the Constitution of India. As the rival contentions of the parties revolve around the spread of this power, it would be apposite to initiate the narration by quoting the aforementioned two clauses. (1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus. Mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of their rights conferred by Part III and for any other purpose. (2) The power conferred by Clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. 9. Clause 2 of Article 226 of the Constitution of India was preceded by Clause (1A) introduced by the Constitution (15th Amendment) Act, 1963. Clause (2) came to be incorporated by the Constitution (42nd Amendment) Act, 1976. The principle objective of the amendments was to mitigate the hardship of the litigants who before the amendments had to approach the Punjab High Court under the said article to seek reliefs in matters relating to the Central Govt. With the insertion of Clause (2) in addition to the powers available in Clause (1), any High Court can exercise its writ jurisdiction in relation to its territories within which, the cause of action, wholly or in part, arises for exercise of such powers (emphasis supplied) notwithstanding that the seat of a Govt. With the insertion of Clause (2) in addition to the powers available in Clause (1), any High Court can exercise its writ jurisdiction in relation to its territories within which, the cause of action, wholly or in part, arises for exercise of such powers (emphasis supplied) notwithstanding that the seat of a Govt. or authority or the residence of a person to whom directions, orders or writ may be issued is not within those territories. A conjoint reading of Clause (1) and (2) of Article 226, therefore, postulates that every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including any Govt. within those territories, directions orders or writs as mentioned therein for the enforcement of any of the rights conferred by part III and for any other purpose. Further, this power can be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such powers, even if, the seat of the Govt. or authority or residence of the persons concerned, is not within those territories. 10. In other words, the restriction under the unamended article, namely that the writs issued by a High Court cannot extend beyond the territories subject to its jurisdiction and that such writs to be effective, the person or authority or the seat of Government must be located within such territories was relaxed with the incorporation of Clause (2). Any High Court, within the territories of which, the cause of action, wholly or in part arises for the exercise of its writ jurisdiction, can invoke its powers under the said article and issue a writ, direction or order against any Govt. or authority or person even if the seat of such Govt. or authority or the residence of the person is not within those territories. 11. Noticing the implications of the amendments, their Lordships of the Allahabad High Court in Daya Shankar Bhardwaj, (supra), had observed that a right of action arises if there is an invasion of right but cause of action and right of action are not synonymous or interchangeable. or authority or the residence of the person is not within those territories. 11. Noticing the implications of the amendments, their Lordships of the Allahabad High Court in Daya Shankar Bhardwaj, (supra), had observed that a right of action arises if there is an invasion of right but cause of action and right of action are not synonymous or interchangeable. It held that a right of action is the right to enforce a cause of action and that a person residing any where in the country being aggrieved by an order of the Govt. Central or State or authority or any person may have a right of action at law but he can enforce such right under Article 226 within whose territorial limits the cause of action, wholly or in part arises. The contours of writ jurisdiction under Article 226 as stand presently are, therefore, clearly delineated. 12. Before reverting to the facts, it is desirable to survey the law on this facet of the controversy as contained in the authorities relied upon by the parties. 13. In Navin Chandra Majithia, (supra), a complaint was filed against the Appellant at Shillong in the State of Meghalaya by M/s. JB Holdings Limited relating to a transaction of purchase of shares of M/s. India Farmers Private Limited of which the Appellant was the Managing Director. A writ petition was laid in the Bombay High Court praying, inter alia, for a writ to quash the complaint or in the alternative to issue a writ of mandamus directing transfer of the investigation of the case to Mumbai. According to the Appellant, as the entire transaction upon which the complain was based had taken place at Mumbai and not at any other place much less at Shillong or any other place in the State of Meghalaya, the complaint could not have been filed and/or entertained at Shillong. The writ petition was dismissed by the Bombay High Court on the ground that it could not entertain the same as the Appellant had prayed for quashing of a complain lodged at Shillong in the State of Meghalaya. After an exhaustive discussion on the purport of "cause of action" and the judicial interpretation thereof, as well as the settled legal principles in dealing with objections regarding lack of territorial jurisdiction, the Apex Court reversed the impugned decision of the Bombay High Court. After an exhaustive discussion on the purport of "cause of action" and the judicial interpretation thereof, as well as the settled legal principles in dealing with objections regarding lack of territorial jurisdiction, the Apex Court reversed the impugned decision of the Bombay High Court. It held by recalling its observations in its decision in ONGC v. Utpal Kumar Basu (1999) 4 SCC 711 that in determining the objection of lack of territorial jurisdiction, the Court must take all facts pleaded in support of the cause of action into consideration without embarking upon an enquiry as to the correctness or otherwise thereof. While observing that the question of territorial jurisdiction with reference to a criminal offence has to be answered keeping in mind the place where the alleged offence had been committed, he Apex Court referred to its remarks in K. Bhaskaran v. Sankaran Vaidhyan Balan : (1999) 7 SCC 510 which was also a case under the Act, that the offence thereunder attains completion only on the failure of the drawer of a cheque to pay the cheque amount within the expiry of 15 days mentioned under Section 138(C). It held that where the offence is committed partly in one local area and partly in another, the Court in either of the localities can exercise jurisdiction to try the case. It ruled that on the averments made in the writ petition, it could not be said that no part of the cause of action for it had arisen within the territorial jurisdiction of the Bombay High Court. In his supplementing judgment, Hon'ble Thomas J reiterated the caution sounded in ONGC, (supra) against transgressing into the jurisdiction of other High Courts merely on the ground of some insignificant events connected with the cause of action taking place within the territorial limits of a High Court which a litigant may approach at his own choice or convenience. It was held that though registration of an FIR in a particular state would not be the sole criterion to decide that no cause of action had arisen even partly within the territorial limits of jurisdiction of another state, it would not be permissible for any person to create a vague cause of action or concoct one by jutting into the territorial limits of another state or by making a sojourn or even a permanent residence therein. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action had arisen within the territorial limits of its jurisdiction and that it would depend upon the facts of each case. The Respondents in Union of India v. Adani Exports Limited and Anr. had filed special civil applications before the Gujarat High Court claiming the benefits of Pass Book Scheme under the Export Import Policy in relation to certain credits in export of shrimps. The private Appellants were not stationed at Ahmedabad and the passbook in question on which the Respondents sought relief had been issued by the concerned authority at Chennai. The material transaction in the deal was also under taken at Chennai. The territorial jurisdiction of the High Court was questioned but the objection was turned down. The Apex Court noticed that the complete facts in support of the cause of action were in no way connected with the relief sought for in the Civil Applications so as to constitute any cause of action at Ahmedabad. Reciting its observations in ONGC (Supra) it concluded that in order to confer on a High Court, the jurisdiction to entertain an application or a civil application, it must be satisfied from the entire facts leaded in support of the cause of action, that those constitute a cause so as to empower the Court to decide the dispute which has at least in part arisen within its jurisdiction. It held that each and every fact pleaded does not, ipso facto, lead to the conclusion that these give rise to a cause of action within the Court's territorial jurisdiction unless the facts pleaded are such which have a nexus or relevance with the lis involved in the case (emphasis supplied). Facts which have no bearing with the lis or the dispute involved in the case do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned, it observed. The Respondent in CBI Anti Corruption Branch, Mumbai (supra) had approached this Court under Article 226 of the Constitution of India, for a writ to quash the first information reports lodged against him with the CBI. The reports had been lodged while the Respondent was officiating as Collector, Daman and before his transfer to Arunachal Pradesh. The Respondent in CBI Anti Corruption Branch, Mumbai (supra) had approached this Court under Article 226 of the Constitution of India, for a writ to quash the first information reports lodged against him with the CBI. The reports had been lodged while the Respondent was officiating as Collector, Daman and before his transfer to Arunachal Pradesh. The immediate cause for filing the writ petition was receipt of a wireless message issued by the Superintendent of Police, CBI, Bombay advising him to report to the investigating agency at Bombay. This Court having entertained the petition inspite of the objection raised with regard to its maintainability, the CBI approached the Apex Court. Though the controversy got resolved following a concession on the part of the Respondent, the Apex Court, considering the materials on record held that the writ petition filed before this Court was not maintainable for want of territorial jurisdiction. The Apex Court in M/s. Kusum Ingots and Alloys Ltd. (Supra) had ruled that keeping in view the expression "cause of action" used in Clause (2) of Article 226 of the Constitution of India, even if a small fraction of a cause of action accrues within the jurisdiction of the Court, it would have jurisdiction in the matter. 14. The legal principles, thus decipherable from the aforementioned authorities are that for this Court to exercise its powers under Article 226 of the Constitution of India, the cause of action wholly or in part for the exercise of such power has to arise within its territorial limits. To decide where such a cause of action has arisen wholly or in part, the entire pleaded facts have to be taken note of. In doing so, however, the facts having a perceptible nexus with the transaction culminating in the lis would only be relevant. Any fact unrelated to the dispute or activities associated therewith would be insignificant and inconsequential. Moreover, such facts would have to constitute a cause, giving rise to a right of action. If such a fact or/an ensemble of facts raise(s) a cause for legal action within the territorial limits of a High Court, it would be permissible for it to exercise its writ jurisdiction. 15. It is unnecessary to burden this judgment with the plethora of decisions interpreting the expression "cause of action". If such a fact or/an ensemble of facts raise(s) a cause for legal action within the territorial limits of a High Court, it would be permissible for it to exercise its writ jurisdiction. 15. It is unnecessary to burden this judgment with the plethora of decisions interpreting the expression "cause of action". The oft quoted passage in Read v. Brown (1888) 22 QBD 128 would suffice: ...every fact which it would be necessary for the Plaintiff to prove if traversed. In order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. To determine, therefore, the cause of action for any proceeding, every fact, which needs to be taken note of to examine whether the person approaching the Court is entitled to the relief claimed, has to be considered without, however, at that stage, indulging in any exercise to ascertain the correctness thereof. 16. With this background, the pleaded facts on this issue may be recalled. The Hire Purchase agreement was executed at Delhi. It is not clear as to where the cheques had been issued. Recorded facts reveal that the cheques were presented by the opposite party with its banker at Gurgaon and the intimation about the same being dishonoured was also conveyed at Gurgaon. The notice of demand dated 25.9.01 was issued from Delhi at the Petitioner's address at Guwahati. The demand was not acceded to and therefore, the complaint. The refusal to make the payment therefore occurred at Guwahati. 17. The essential prerequisites prescribed by Section 138 of the Act for the offence there under are (1) issue of cheque for payment of any amount of money for discharging in whole or in part any debt or liability. (2) presentation of the cheque to the bank within 6 months from the date on which it is drawn or within the period of its validity for encasement. (3) the cheque is dishonoured (4) demand by the payee for payment of money by giving a notice in writing to the drawer within 15 days of the information of the cheque being dishonoured (5) failure of the drawer to make the payment of the amount to the payee or to the holder in due course within 15 days of the receipt of the notice. Under Section 142(b), a complaint has to be filed within one month from the expiry of 15 days of the receipt of the notice of demand by the drawer in case he fails to make the payment. 18. Viewing the mandatory prescriptions contained in Section 138 of he Act, it is abundantly clear that the refusal or failure on the part of the drawer to make payment of the dishonoured cheque within 15 days of the receipt of the notice is the ultimate link in the chain of events to provide the cause of action for a complaint thereunder. With such failure or refusal, the offence under Section138 of the Act is complete and the immediate and proximate cause for filing the complaint arises. In the conspectus of the acts and omission of the parties, comprising the transaction leading to the filing of the complaint, the refusal/ failure on the part of the Petitioner to make the payment of the cheque amount in compliance of the demand notice is an inseverable link. 19. The Apex Court in K. Bhaskaran (supra) while dealing with the question as to the places where an offence under Section 138 of the Act can be tried, held with reference to the acts constituting the same that if those are committed in different localities, the Courts exercising jurisdiction in such localities can try the offence and the complainant can choose any one of the Courts. 20. As noticed herein above, one of the acts constituting the offence is the failure of the drawer to make payment within 15 days of the receipt of the notice. This indubitably would form the immediate cause for filing the complaint. In fact it is the ultimate event, empowering the complaint to file the complaint. It follows that in a proceeding questioning the maintainability of a complaint for an offence under Section 138 of the Act, the drawer's failure to make the payment in compliance to the demand notice is a preeminent fact to ascertain as to whether a cause of action has arisen within the territorial limits of a High Court for exercising its writ jurisdiction to examine the prayer for quashing of the criminal proceeding. 21. 21. This Court being called upon to decide on the maintainability of the Criminal proceeding registered on the complaint, none of the essential facts having a live link with any stage in the transaction involved and the ingredients of the alleged offence can be ignored. To limit the attention exclusively to the fact of filing the complaint to determine the cause of action for the writ proceeding would amount to enervating the Constitutional provision of its essence and purpose. Such a constricted and insulated approach does not accord with the width and amplitude of writ jurisdiction of this Court as envisaged in the scheme of the Indian Constitution. The immediate and proximate cause for filing the complaint being the refusal on the part of the Petitioner to pay the amount of the cheque as demanded and the said act or omission having taken place at Guwahati within the territorial contours of this Court, it is not possible, considering the true import of the expression "cause of action" employed in Article 226 of the constitution to uphold the preliminary objection based on want of territorial jurisdiction of this Court. The definition of 'High Court' in Section 2(e) of the Criminal Procedure Code cannot control the frontiers of powers under Article 226 of the Constitution. Similarly, Section 186 of the Code has no relevance in the facts of the present case. As the Petitioner contends that the peremptory pre-conditions for attracting the liability under Section 138 of the Act are absent, I am thus not inclined to dismiss this petition only on the ground that the complaint had been filed at Gurgaon, a part of the cause of action for the complaint having arisen within the territorial limits of this Court. The preliminary objection, therefore, fails. 22. On merits, the first submission against the maintainability of the criminal proceeding relates to lack of jurisdiction of the Gurgaon Court to entertain the complaint in as much as, according to the Petitioner, the hire purchase agreement was executed at Delhi and he had made payments against the dues thereunder by bank drafts issued at Guwahati. No part of the cause of action for the complaint, the Petitioner contends had arisen at Gurgaon. No part of the cause of action for the complaint, the Petitioner contends had arisen at Gurgaon. Per contra, the opposite party contends that though the hire purchase agreement was executed at Delhi, the cheques issued by the Petitioner were presented to its banker at Gurgaon and the intimation about those being dishonoured was also conveyed by its banker at Gurgaon. The statements to the above effect have been clearly set out in the complaint. It appears there from that the cheques were presented for encashments to the banker of the opposite party i.e. Federal Bank Ltd., Civil Lines, Jail Road, Gurgaon. The intimation about the cheques being dishonoured was conveyed to its banker at Gurgaon, which was duly relayed to the opposite party on 12.9.2001. Admittedly thereafter, the notice of demand dated 25.9.01, was issued to the Petitioner, which in terms of the complaint was received by him on 28.9.01 at Guwahati but the payment as demanded was not made. The complaint petition, as it discloses was thereafter filed on 6.11.2001. The complaint therefore, bears out that the cheques had been issued by the Petitioner and had been presented by the opposite party for encashment and were dishonoured. Perse, the notice of demand dated 25.9.01 was within the time limit prescribed and on the Petitioner's refusal to meet the demand, the complaint was filed also within the time prescribed under Section 142(b) of the Act. The particulars of the cheques as mentioned in the complaint reflect their serial No(s), the dates of issue, the amounts and the bank on which the same had been drawn. 23. The Apex Court in MMTC Ltd. and Anr. (supra) which was also a case under the Act, had held that while entertaining an application for quashing of a criminal proceeding, the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. Referring to its earlier decision in Maruti Udyog Limited v. Narender : (1999) 1 SCC 113 and K.N. Beena v. Muniyappan : (2001) 8 SCC 458 it ruled that the Court has to draw a presumption in view of Section 139 of the Act that the holder had received the cheque(s) for discharge of a debt or liability until the contrary is proved. As noticed herein above, the Apex Court in K. Bhaskaran, (supra) had laid down that the offence under Section 138 of the Act is a concatenation of several acts/omissions namely (1) drawing of cheque (2) presentation of the cheque to the bank (3) return of cheque unpaid by the drawee bank (4) giving of 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 notice. It was further held that if five different acts are done in five different localities any of the Courts exercising jurisdiction in one of the said areas can try the offence. The complainant in such a case has the option to choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any of the acts had been committed. 24. On a plain reading of the complaint, it appears that the Petitioner had issued the two cheques referred to in the complaint in favour of the opposite party, which on presentation within the time prescribed by the Act had been dishonoured. The notice of demand issued within time has also remained unresponded and the payment has not been made. The cheques had been presented to the banker of the opposite party at Gurgaon and the intimation about the same being dishonoured had also been conveyed to the opposite party at Gurgaon. Prima facie, the complaint has also been filed within the time permitted under Section 142(b) of the Act. Having regard to the statement of law recorded in the aforementioned authorities and the materials as available on record, the objection to the jurisdiction of the Court at Gurgaon is untenable. The necessary preconditions enumerated in Section 138 and 142 of the Act being prima facie complied with, the Gurgaon Court did not commit any illegality in entertaining the complaint 25. The contention that the cheques had been issued as collateral security and not to discharge any debt or liability is not convincing. Suffice it to mention that under Clause 2 of the hire purchase agreement, no requirement of any collateral security in the form of cheques has been recorded. The contention that the cheques had been issued as collateral security and not to discharge any debt or liability is not convincing. Suffice it to mention that under Clause 2 of the hire purchase agreement, no requirement of any collateral security in the form of cheques has been recorded. The collateral security comprehended is a jointly executed demand promissory note, which in fact forms a part of the agreement, appearing at Page 26 of the writ petition. Issuance of the cheques by way of collateral security has also been denied by the opposite party. 26. The contention that the cheques had been issued undated, in face of a clear and categorical statement in the complaint to the contrary cannot be accepted at this stage in absence of any proof to the effect. The allegation that the dates therein had been inserted later on also is subject to proof and on the materials presently available on record, it is not possible to accept the same. 27. In Amol Ch. Lahkar and Anr. (supra), this Court had quashed the criminal proceeding on the ground that the complaint did not disclose any offence under Section 379 IPC as alleged. While there is no civil with regard to the reasoning on which the said decision is based, it is of no assistance to the Petitioner in the instant case inasmuch as on a reading of the complaint, the same conclusion is not possible at this stage. The Andhra Pradesh High Court in Uma Maheshwar Reddy, (supra) had in facts of the case held, that the post dated cheques issued towards the discharge of loan in connection with a hire purchase contract after its termination cannot be said to have been issued in discharge of any legally enforceable debt. The fact that the cheques in the instant case were post dated is not admitted and therefore, the basic premise in which the reported decision proceeds is not available in the case in hand. The decision, therefore, is not relevant. In Shri Ishar Alloys Steel Ltd., (supra) and Ashok Yaswant Badave (supra), the Apex Court had held that a post dated cheque becomes a cheque under the Act on the date inscribed on it and that till then it is only a bill of exchange. The decision, therefore, is not relevant. In Shri Ishar Alloys Steel Ltd., (supra) and Ashok Yaswant Badave (supra), the Apex Court had held that a post dated cheque becomes a cheque under the Act on the date inscribed on it and that till then it is only a bill of exchange. These authorities are also of no assistance to the Petitioner, as the fact that the cheques in question were post dated is not yet established in the instant case. The decision in Ms. Adithya Alkalods (supra), involved an undated blank cheque issued as a security towards bill discounting facility. The clear and categorical case of the opposite party/complainant in the present case being that fully filled up cheques containing dates and other particulars had been issued by the Petitioner, the ratio of the above decision has no bearing on the controversy seeking resolution. A post dated cheque was dishonoured in Ms. Pawan Enterprises (supra). On the completion of trial, the opposite party therein was acquitted on the ground that the same had been issued as a security for an amount lying in balance after payment of some amount in cash and not for discharging any liability. The Bombay High Court refused to interfere with the acquittal in a revision. The contention of the Petitioner that the cheques in the instant case had been issued as collateral security has been denied by the opposite party and remains to be established at the trial. In my view, therefore, the Petitioner cannot draw any strength in support of his case from the aforementioned decision. On the other hand, the Apex Court in K.N. Beena (supra), has held that in view of Section 118 of the Act, unless the contratory is proved, it has to be presumed that an encashable instrument, including a cheque, had been made or drawn for consideration and a Court under Section 139 thereof has to presume that the holder of the cheque received it for discharge in whole or in part of a debt or liability. The Apex Court, thus, was categorical in laying down that on a complaint under Section 138of the Act, the Court has to presume that the cheque had been issued for a debt or liability and the burden of proving otherwise is on the accused. The Apex Court, thus, was categorical in laying down that on a complaint under Section 138of the Act, the Court has to presume that the cheque had been issued for a debt or liability and the burden of proving otherwise is on the accused. In the present state of facts and considering the stage of the criminal proceeding, in view of the pronounced judicial opinion as above, the above contentions raised on behalf of the Petitioner do not commend for acceptance. 28. A faint attempt was made by Mr. Roy to expose the falsity of the allegations in the complaint by pointing out that the date of intimation about the dishonour of cheques as mentioned in the complaint was prior to the dates appearing on the cheques. The photocopy of the original complaint produced before this Court by the learned Counsel for the opposite party, however, prima-facie belies the said contention. It appears there from that whereas the cheques involved are dated 20.6.2001 and 20.7.2001, the date of intimation to the opposite party is 12.9.2001. 29. The maintainability of the complaint has also been assailed on the ground that it had not been filed by a Director of the opposite party company. A bare perusal of the complaint reveals that it was filed by one Mr. Binoy Kr. Gupta, an officer of company duly authorized to sign and file the complaint and contest the proceeding on its behalf through a resolution dated 18.8.2000 taken by its two of directors. The Act does not prescribe any particular mode of filing a complaint by a company. I does not require that if the complainant is a company, it has to be mandatorily filed by the Director thereof. In the present case, the complaint has been filed on behalf of the company by an officer thereof duly authorized for the purpose by its Board of Directors. In absence of better particulars on record to the contrary there is no logic to uphold the objection. The decision of the Madras High Court in S.N. Bangar and Anr. (supra), cited by Mr. Roy deals with the contingencies where it an offence is committed by a company, its directors would be deemed to be guilty thereof. This decision, therefore, is clearly besides the point in issue. 30. The decision of the Madras High Court in S.N. Bangar and Anr. (supra), cited by Mr. Roy deals with the contingencies where it an offence is committed by a company, its directors would be deemed to be guilty thereof. This decision, therefore, is clearly besides the point in issue. 30. The contention that the award in the arbitration proceeding between the parties arising out of their differences in connection with the same hire purchase agreement renders the cause of the complaint inherently improbable also need not detain this Court for long. Under the award annexed to the writ petition, various amounts have been awarded in favour of the opposite party towards outstanding monthly installments, interest etc. The fact that the award is dated 30.11.99, however, by itself, does not decisively improbability the issuance of cheques. To dismiss the case of the opposite party/complainant on this ground would amount to acting on suppositions in absence of any evidence to that effect. The decision of the Apex Court in Trilok Sing and Anr. v. Satya Deo Tripathi : AIR 1979 SC 850 is not relevant in the facts of the instant case. Section 138 of the Act defines an offence founded on issuance of a cheque on fulfillment of certain preconditions prescribed. This Court at this stage is to confine its attention to the complaint for ascertaining whether the prescribed contingencies exist prima facie. The complaint meets the requirements. This contention thus has to fail. 31. The grievance that the opposite party as the complainant had not approached the learned Court below with clean hands and had suppressed the fact regarding disposal of the arbitration proceeding relating to the same transaction also is of no subscene. On the face of the records, omission to mention about the arbitration proceeding does not detract from the edicts of Section 138 of the Act. It may at best be a circumstance available by way of defence to the Petitioner at the trial. The contention regarding lack of bona fide as sought to be developed by Mr. On the face of the records, omission to mention about the arbitration proceeding does not detract from the edicts of Section 138 of the Act. It may at best be a circumstance available by way of defence to the Petitioner at the trial. The contention regarding lack of bona fide as sought to be developed by Mr. Roy in course of the arguments based on such omission, in absence of convincing materials on record at this stage is in the realm of speculations, and therefore, in my view do not have any cascading effect on the case of the opposite party to justify quashment of the complaint having regard to the object of the Act which is succinctly brought out in the following passage of Dalmiya Cement (Bharat) v. Galaxy Trials Ltd. and Ors. : (2001) 6 SCC 463 . 3. The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instruments is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily payable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present day world, are likely to be adversely affected, as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the legislature has, in its wisdom, thought it proper to make such instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The law relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. The law relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country." "4. Section 138 of the Act makes a civil transaction to be an offence by fiction of law. 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 is returned by the bank unpaid either because of the amount or money standing to the credit of that person being insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account, such person, subject to the other conditions, shall be deemed to have committed an offence under the section and be punished for a term which may extend to one or with fine which may extend to twice the amount of cheque or with both. 32. Following an exhaustive survey of the legal principles on the scope of Article 226 of the Constitution of India and the inherent power under Section 482 of the Criminal Procedure Code in the matter of interference with the police investigation on an FIR or a trial based on a complaint, the Apex Court in the State of Haryana v. Chaudhury Bhajan Lal, : (1992) Supp. 1 SCC 335 enumerated a list of contingencies permitting exercise of such powers either to prevent the abuse of the process of court or to secure the ends of justice. The conclusions as summed are contained in para 102 and 103 of the decision and are quoted herein below. 102. 1 SCC 335 enumerated a list of contingencies permitting exercise of such powers either to prevent the abuse of the process of court or to secure the ends of justice. The conclusions as summed are contained in para 102 and 103 of the decision and are quoted herein below. 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying, the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 33. Applying yard stick as above, in the facts and circumstances of the instant case, I do not consider it to be a fit case to exercise the discretionary Jurisdiction of this Court to interdict the impugned criminal proceeding. The Petitioner has failed to make out a case that the complaint is either barred by law or suffers from any one or more of the infirmities as above and that the continuance of the impugned criminal proceeding would result in the abuse of the process of Court or defeat the ends of justice. The petition, therefore, is without any merit and is accordingly dismissed. No costs. Petition dismissed