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2004 DIGILAW 590 (GAU)

Heritage Engineers and Developers Pvt. Ltd. v. State of Assam

2004-12-01

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. A. Sarma, learned Counsel for the Petitioners and Mr. K.P. Sarma, learned Counsel for the Respondent No. 2. 2. This is an application for transferring Case No. 257C/2004 Under Section 138 A of the Negotiable Instruments Act pending in the court of Addl. Chief Judicial Magistrate, Dibrugarh to any other court at Guwahati. 3. The complaint case is in respect of alleged dishonour of cheque issued by the Petitioner for which a complaint Under Section 138A of the N.I. Act has been instituted. The transfer has been sought on the ground that the cheque was issued at Guwahati but the complainant presented the said cheque at Dibrugarh and hence the jurisdiction to try the case will be at Guwahati in view of Section 177Code of Criminal Procedure 4. The question raised herein is no more res integra in view of the detailed discussion and law laid down by Apex Court in the case of K. Bhaskaran v. Sankaran v. Balan 1999 CRI.L.J. 4606. The Hon'ble Supreme Court held: We fail to comprehend as to how the trial Court could have round so regarding the jurisdictional question. Under Section 177 of the Code "every offence shall ordinarily be inquired into and tried in a Court within whose jurisdiction it was committed." The locality where the bank (which dishonoured the cheque) is situated can not be regarded as the sole criteria to determine the place of offence. It must be remembered that offence under Section 138 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. 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 difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act. 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 difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act. Even otherwise the rule that every offence shall be tried by a Court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle. Section 177 itself has been framed by the legislature thoughtfully by using the precautionary word "ordinarily" to indicate that the rule is not invariable in all cases. Section 178 of the Code suggests that if there is uncertainly as to where, among different localities, the offence would have been committed the trial can be had in a Court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in Anr. local area the Court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon. It reads thus: 179. Offence triable where act is done or consequences ensues-When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the Courts to try the offence was sought to be determined. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following 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. It is not necessary that all the above five acts should have been perpetrated at the same locality. 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 Section 138 of the Act. In this context a reference to Section 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. 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 Section 178 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. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act. 5. In view of the above, we hold that Court at Dibrugarh has the jurisdiction to try the case. 6. Transfer Petition stands dismissed. Petition dismissed