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2007 DIGILAW 281 (JK)

Nazir Ahmed Kaboo v. Feroz Iqbal

2007-12-20

MOHAMMAD YAQOOB MIR

body2007
1. Revisionist is aggrieved of order dated 22.05.2007 passed by learned Chief Judicial Magistrate, Sopore. By virtue of order impugned, application challenging jurisdiction vis-a-vis complaint titled Feroz Iqbal Vs. Nazir Ahmed Kaboo, has been dismissed. 2. Shorn of details, factual matrix of the case is, that petitioner herein is alleged to have borrowed an amount of rupees two lacs from the respondent. Later on, for liquidating the said amount, bearer cheque bearing no.1740488 dated 19.10.2005 amounting to rupees one lac and another cheque bearing no.1740482 dated 13.10.2005 for amount of rupees one lac drawn on Jammu & Kashmir Bank, Branch Handwara, allegedly have been issued by the respondent. When cheques were presented for payment, were returned due to insufficiency of funds in the account of the account holder i.e the petitioner. Consequently, a request for payment is alleged to have been sent to the petitioner by the respondent. Failure to respond the notice of demand, prompted the respondent to file two separate complaints bearing file nos.62-A and 63-A. File no.62-A is vis-a-vis cheque no.1740482 while as file no.63-A is vis-a-vis cheque no.1740488. Perusal of the subordinate record reveals that learned court below after taking cognizance of the case, recorded statement of some of the witnesses and finally complainants evidence has been closed vide order dated 20.02.2007 and case posted for examination of the accused. Before same could be done, accused, (petitioner herein), moved an application praying for dismissal of the complaint on the ground of jurisdiction. 3. In short, in the application, it has been projected that trial court has no jurisdiction to try the complaint. Learned court below after hearing both the parties has vide order impugned dismissed the application filed by the petitioner opining therein that the court has jurisdiction to try the matter. It is the said order, separately passed in two complaint files, which has been challenged by virtue of criminal revision No.21/07 and Cr. Revision 15/2007. Since the facts are identical and identical question is involved for determination, therefore, both the two petitions are taken up together for disposal. 4. I have heard appearing counsel for parties at length and perused the record. Revision 15/2007. Since the facts are identical and identical question is involved for determination, therefore, both the two petitions are taken up together for disposal. 4. I have heard appearing counsel for parties at length and perused the record. Learned counsel appearing for the revisionist projected that the cheques issued were presented for encashment before the Jammu & Kashmir Bank, Branch Handwara, so cause had accrued at Handwara, therefore, court at Sopore has no jurisdiction, no doubt notice of demand has been issued from Sopore, but that does not give jurisdiction to the court at Sopore. 5. Counsel appearing for the other side while controverting submissions highlighted that actual transaction has taken place at Sopore. Notice of demand had been issued at Sopore. Cause of action means bundles of facts, so it cannot be restricted in its operation. In support of his contentions, learned counsel has relied upon judgment reported in AIR 1999 SC 3762, Apex Court has elaborated the acts which are components of the offence under Section 138 of Negotiable Instruments Act. The Apex Court has held: - "14. The offence under S.138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (i) 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. 15. 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 five different localities. But a concatenation of all the above five is a sine quo non for the completion of the offence under Se.138 of the Code. In this context a reference to S. 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 enquired into or tried by a Court having jurisdiction over any of such local areas." 6. In this context a reference to S. 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 enquired into or tried by a Court having jurisdiction over any of such local areas." 6. While applying ratio of judgment to the facts of present case, in my considered opinion, the cause of action has also accrued at Sopore, so the question raised vis-a-vis jurisdiction can be termed to be the futile exercise. In the reported judgment, it is clear that if the five above acts were done in five different localities, any one of the courts can exercise jurisdiction and any one of the areas can become place for trial under Section 138 of the Act, which means that complainant can chose any one of those courts having jurisdiction over any one area within territorial limits of which any one of those five acts was done. In the instant case, admittedly notice of demand has been issued at Sopore, this act was done at Sopore. Learned Court below has correctly dealt with the matter and has returned finding that jurisdiction of the court at Sopore is not ousted. 7. Though learned counsel for the petitioner while relying on the judgment reported in 2006(II) SLJ page 646 contended that cheque has been received back bounced due to in-sufficiency of funds at Handwara, therefore, it is the court at Handwara, which has the jurisdiction. But in the reported judgment, it has been held that a cheque was received back as bounced at UCO Bank, Srinagar, so it was held that cause of action also arose at Srinagar. As earlier while referring to Apex Court judgment, it is made clear that it is various areas and any one of the area can be chosen for lodging the complaint. This judgment does not support contention of the learned counsel for petitioner. One more judgment is relied by the learned counsel for petitioner reported in Cr.L.J. 2006 page 3704 is of no help to him because facts and features of the case are altogether different. In reported judgment transaction had taken place at Nagpur. Demand of notice was issued from Aurangabad but was received at Nagpur.Except issuance of demand notice, all transactions had taken place at Nagpur. Convenience of the parties was also looked into. In reported judgment transaction had taken place at Nagpur. Demand of notice was issued from Aurangabad but was received at Nagpur.Except issuance of demand notice, all transactions had taken place at Nagpur. Convenience of the parties was also looked into. It is in that context, it was held that, it is the court at Nagpur which has the jurisdiction. The facts of the reported case are not identical as of the instant case. As in the instant case, only one act i.e cheque was received back from Handwara, due to in-sufficiency of funds. While relying on judgment reported in AIR 1999 SC 3762, learned trial court has rightly concluded that jurisdiction of the court is not ousted. 8. For all that has been stated hereinabove, both the orders passed in two different complaints dismissing the application throwing challenge to jurisdiction have been cogently passed, does not call for any interference, the same are upheld. Learned counsel for the parties are directed that they shall ensure the presence of parties before Chief Judicial Magistrate, Sopore on 29.12.2007. Copy of this order be placed on other revision files and also one copy be send to the court below forthwith along with subordinate record. Disposed of.