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2004 DIGILAW 565 (RAJ)

Ajanta Raj Proteins Ltd v. State of Rajasthan

2004-04-11

K.C.SHARMA

body2004
Judgment K.C. Sharma, J.-With the consent of the parties, I have heard arguments for final disposal of this petition at admission stage. 2. The petitioner has challenged the order dated 012.2003 passed by the learned Judicial Magistrate No. 2, Alwar taking cognizance of the offence under Section 138 of the Negotiable Instruments Act (hereinafter to be referred to as "the Act"), as also the order dated 010.2004 passed in revision petition, thereby affirming the order of the learned Magistrate. The order taking cognizance is sought to be challenged solely on the ground of lack of territorial jurisdiction. 3. Mr. Anoop Dhand, appearing for the petitioner has strenuously contended that all the acts which are necessary to constitute the offence under Section 138 of the Act were done at Delhi and, therefore, the Court at Alwar has no territorial jurisdiction to entertain the complaint and to take cognizance of the offence. In support of his contention, learned Counsel has relied upon a decision of the Apex Court in K. Bhaskaran vs. Sankaran Vaidyan Balan, 1999 (7) SCC 510 . 4. Per contra Mr. R.K. Mathur appearing for the complainant has contended that complainant has already mentioned in his complaint as to where the cause of action arises. According to him the order for purchase of goods was placed to the Factory situated at Alwar and the goods were sent from Alwar and, therefore, the Court at Alwar has jurisdiction to entertain the complainant. Learned Counsel drew my attention to paras 11 and 16 of the above cited case relied upon by the Counsel for the petitioner. .5. I have given my anxious consideration to the rival submissions and have gone through the provisions of the Act and the case law cited at the bar. Section 177 of the Act provided that "every offence ahall ordinarily be enquired into and tried in a Court within whose jurisdiction it was committed". It is true that locality where the bank dishonouring the cheque is situated cannot be regarded as the sole criterion to determine the place of offence. In K. Bhaskaran (Supra), their Lordships observed that offence under the Act would not be completed with the dishonour of the cheque. It is true that locality where the bank dishonouring the cheque is situated cannot be regarded as the sole criterion to determine the place of offence. In K. Bhaskaran (Supra), their Lordships observed that offence under the Act would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in Clause (c) of the proviso to Section 138 of the Act. Their Lordships then observed: ."It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficult to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act." .6. As to when the offence under Section 138 of the Act can be completed, their Lordships in para 14 of the Judgment observed that it can be completed only with the concatenation of a number of acts. In the opinion of their Lordships following are the 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, and 5. failure of the drawer to make payment within 15 days of the receipt of the notice. 7. Having noted the components of the offence under Section 138 of the Act, their Lordships concluded that it is clear, if the five different acts were done in five different localities any of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. 8. The above referred case was relied upon by this Court in Ramesh Gattani vs. State of Rajasthan & Anr., 2001 WLC (Raj) UC 421, wherein the firm to which cheque was issued was situated at Kotputli. 8. The above referred case was relied upon by this Court in Ramesh Gattani vs. State of Rajasthan & Anr., 2001 WLC (Raj) UC 421, wherein the firm to which cheque was issued was situated at Kotputli. The firm in order to convenience had an account at Jaipur and in its discretion, it deposited the cheque at Jaipur. The goods were sent from Kotputli and the cheque which was issued by the petitioner was in the name of firm at Kotputli wherefrom the goods were supplied. The notice was sent from Jaipur. In these circumstances this Court held as under: "... It is found that the firm of Kotuptli had an account at Jaipur and when the cheque was dishonoured, the information was sent to it at Kotputli. The goods were sent from Kotputli to Jaipur and these facts were considered by the learned Magistrate while deciding the application. In view of the observations of the Supreme Court in K. Bhaskaran vs. Sankaran Vaidhayan Balan (Supra), I am of very clear view that the Court at Kotputli has jurisdiction to try the case". 9. It is thus well settled that normally it is difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon variety of factors, It can either be at the place where the drawer resides or at the place where the payee resides or at the place whether either of them carries on business. Section 178, Cr PC has widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area, the Court in either of the localities can exercise jurisdiction to try the case. That apart Section 179 of the Criminal Procedure Code stretches its scope to a still wider horizon. 10. In the case at hand, undisputedly the order to supply the goods was placed to the factory situated at Alwar and accordingly goods were sent from Alwar and thus if the facts of this case are considered in the light of the Judgment of the Apex Court and that of this Court, referred to above it must be concluded that the Court at Alwar has the jurisdiction to try the offence under Section 138 of the Act. 11. 11. In the result, this petition fails and is hereby dismissed at the admission stage.