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2008 DIGILAW 2246 (MAD)

Naseer v. Balaji & Another

2008-07-04

K.MOHAN RAM

body2008
Judgment :- 1. The above criminal original petitions have been filed by the accused in C.C.Nos.113 and 114 of 2007 pending on the file of the Judicial Magistrate No.1, Chengalpattu, seeking to quash the proceedings therein. 2. The said cases were filed by the respective respondents under Section 138 of the Negotiable Instruments Act, 1881. The contention of the petitioner is that the place of residence of the complainants is Pondicherry, the place of residence of the petitioner/accused is Ramanathapuram, UTI Bank where the cheques have been drawn is situated at T.Nagar, Chennai and the Indian Overseas Bank, where the cheques have been presented for realization is situated at Thirupuvanai and as such the complaints ought to have been filed in any one of the Courts situated at the above said places, but the complaints have been filed before the Judicial Magistrate No.1, Chengalpattu, within whose territorial jurisdiction no cause of action has arisen. Since the Court situated at a place from where the legal notice has been issued will not be clothed with any territorial jurisdiction. 3. Mr. C. Jagadish, learned counsel appearing for the petitioner was heard on the above said contentions raised in the petitions. 4. When this Court brought to the notice of the learned counsel the decisions of the Honble Apex Court and this Court reported in .(i) K. Bhaskaran Vs. Sankaran Vaidhyan Balan ( AIR 1999 SC 3762 ) and .(ii) Narang Industries Ltd., Vs. Ashok Leyland Finance Ltd., (1998 (1) CTC 229) the learned counsel submitted that in the decision of the Honble Apex Court, the question of territorial jurisdiction did not directly arose for consideration and the Honble Apex Court has not categorically held that the place of issue of legal notice will confer jurisdiction on the Court situated therein. The learned counsel sought to distinguish the decision of this Court reported in 1998 (1) CTC 229 by contending that in that case the registered office of the de facto complainant was located at Madras, from where the legal notice was issued and hence the said decision does not lay down the principle that the Courts situated at the place from where the legal notice was issued would have territorial jurisdiction to entertain a complaint under Section 138 of the Negotiable Instruments Act. 5. 5. The learned counsel further relied upon the decision of the Bombay High Court (Aurangabad Bench) in Lakshmi Travels, Nagpur Vs. G.E. Country Wide Consumer & Another reported in C.L.T. (1) 2007 1116 in support of his contentions. In the said decision in paragraph 7 it has been observed as under “7. The contention as raised by the learned counsel in favour of complainant that the above judgment of the Apex Court in K. Bhaskaran ( AIR 1999 SC 3762 ) (Supra) supports his case to this extent that giving of notice in writing to the drawer of the cheque demanding payment of the cheque amount and failure of the drawer to make payment within 15 days from the notice gives cause of action only at Aurangabad. This contention has no force. The Apex Court, no where dealt with this aspect. What has been decided by the Apex Court in K. Bhaskaran and M/s. Prem Chand (Supra) refers to the basic ingredients, which are necessary for an offence under S.138 of the Act. There is no dispute about this that all these ingredients are necessary. We are concerned with the cause of action in the present matters. The demand notice is a must. But a place of issuance of notice and no payment thereafter cannot be sufficient to file complaint under S.138 N.L.Act. The notice was though sent from Aurangabad, but received at Nagpur. The party failed to make the payment as per notice. Therefore, issuance of notice from Aurangabad itself cannot give cause of action to file complaint at Aurangabad.” Except the above said contention no other submissions were put forth by the learned counsel appearing for the petitioner. 6. I have carefully considered the said submission made by the learned counsel for the petitioner. 7. In the decision reported in K. Bhaskaran Vs. Sankaran Vaidhyan Balan ( AIR 1999 SC 3762 ) the Honble Apex Court has held as under in paragraphs 12 to 16 as follows: “12. 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. 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 uncertainty 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 another 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 consequence 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 enquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.” 13. 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. 14. The offence under Section 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: (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. 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 qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. 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 qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below: “178. (a)-(c) * * * .(d) 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.” 16. 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 138 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.” (Emphasis supplied) 8. A careful perusal of the above said decision of the Honble Apex Court makes it clear that one of the principal issues that arose for consideration before the Honble Apex Court was the competency of the trial court in entertaining the complaint under Section 138 of the Negotiable Instruments Act. The specific contention put forth therein by the appellant was that the trial court had no territorial jurisdiction to entertain the complaint and while considering such a contention only the Honble Apex Court has held as above. In the said decision, the Honble Apex Court has pointed out in para 14 the following acts as the components for an offence under Section 138 of the Negotiable Instruments Act viz., “14...(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” after observing so, in para 16 the Honble Apex Court has laid down as under: “16...... 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.” 9. Thus it is clear that the Honble Apex Court has analyzed the relevant provisions of the Criminal Procedure Code relating to territorial jurisdiction and the provisions of the Negotiable Instruments Act and thereafter only has held that 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. 10. Therefore with great respect to the learned Judge of the Bombay High Court (Aurangabad Bench), I am unable to accept the view taken by him in Lakshmi Travels, Nagpur Vs. G.E. Country Wide Consumer & Another reported in C.L.T. (1) 2007 1116, for the said reasons, the contention of the learned counsel cannot be countenanced. 11. As far as the decision reported in Narang Industries Ltd., Vs. Ashok Leyland Finance Ltd., (1998 (1) CTC 229) is concerned, though the contention of the learned counsel for the petitioner is partly correct in the sense that in that case, the Registered office of the complainant was located at Madras and the legal notice demanding payment was issued from Madras, the learned Judge has held in that decision in para 14 as under: “14.... (a) to (h)..... .(i) Under Section 179 Cr.P.C., 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 enquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. What Section 179 Cr.P.C., provides is that when a person is accused of the commission of any offence by reason of two things, by reason first, of anything which has been done, and secondly, of any consequence which has ensued, then the jurisdiction is conferred on the Court where the act has been done or the consequence has ensued. What Section 179 Cr.P.C., provides is that when a person is accused of the commission of any offence by reason of two things, by reason first, of anything which has been done, and secondly, of any consequence which has ensued, then the jurisdiction is conferred on the Court where the act has been done or the consequence has ensued. The offence, therefore, must be charged by reason of the two things, the act done and the consequence which ensued and the consequence, therefore, forms the, necessary part of the offence. .(j) to (l) ....... .(m) In the light of the principles discussed above as laid down in the above decisions, the place from which the notice has been issued, intimating the dishonour of the cheque and demanding the cheque amount to be paid to the creditor and the failure to make payment would also have the jurisdiction, since the consequence as contemplated under Section 179, Cr.P.C. for the act done by the accused, by issuing cheque which was dishonoured due to which the demand of the amount and failure to make the payment had ensued.” (Emphasis supplied) Therefore the said decisions of the Honble Apex Court as well as this Court directly covers the issue that arises for consideration in these cases and the same negative the contention of the learned counsel for petitioner. 12. The learned counsel for the petitioner submitted that if the trial is to take place in the Court at Chengalpattu, both the complainants and the accused and the witnesses have to go there from different parts of the State and everybody will be put to hardship and therefore, submitted on that ground that the complaint may be quashed and the respondents may be directed to present the complaints before the competent Court within whose territorial jurisdiction one of the other causes of action has arisen. 13. This Court is unable to accept the said contention. Merely because the parties to the criminal complaint lodged by the respondents will be put to hardship, that cannot be a ground for quashing the proceedings but it may be a good ground to seek transfer of the cases to some other competent Court which will be convenient for the parties to attend. 14. For the aforesaid reasons the criminal original petitions fail and the same are dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs.