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2009 DIGILAW 704 (JK)

Sushila Sharma v. NLM Enterprises

2009-12-31

MOHAMMAD YAQOOB MIR

body2009
1. Respondent (hereinafter referred to as the complainant) has filed two separate complaints under Section 138 Negotiable Instrument Act, one relatable to the cheque bearing No. 603651 and another relatable to the cheque bearing No. 603652 drawn on Union Bank of India Domlur branch Banglore-71, each for a sum of Rs. 15/lacs. 2. Learned Chief Judicial Magistrate, Srinagar while taking cognizance in both the complaints, has issued process vide order dated 29.6.2007 separately in both the two complaints. 3. Petitioners (hereinafter referred to as the accused) by medium of two revision petitions filed before the Court of 2nd Additional Sessions Judge, Srinagar, Challenged the said order of learned Chief Judicial Magistrate, Srinagar, on three counts, first that the trail court has acted without jurisdiction, second cheque being posted dated are not covered by Section 138 of Negotiable Instrument Act and third the limitation imposed by Section 138/142 has not been taken note of by learned Chief Judicial Magistrate. Learned revisional court disagreeing with the said contention dismissed both the revision petitions by two separate orders dated 8.7.2008. 4. The accused dis-satisfied with both the orders of learned Chief Judicial Magistrate as well as of the revisional court, by instant petitions have sought quashment of the entire proceedings principally on the star ground of lack of jurisdiction. 5. Learned Counsel for the accused-petitioners would content that in view of the allegations contained in the complaint, the Court of Chief Judicial Magistrate had no jurisdiction to entertain the complaint and learned trial court ignoring the same has straightway taken the cognizance. It is further contended that in the judgment rendered by the Hon’ble Apex Court in Case K. Bhaskaran v. Sankaran Vaidhyan Balan & anr., reported in (1999) 7 SCC 510 , it has been held that any one of local areas such as (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, can become the place of trial for the offence under Section 138 of the Act and the complainant has a liberty to file a complaint at any of these places. All the said acts have been done at Bangalore, so in any case the Court at Srinagar has no jurisdiction. 6. Learned counsel further contended that even while applying Section 177 of the Code of Criminal Procedure along with the exceptions as envisaged by Sections 179 to 183 Cr. P.C, the Court at Srinagar has no jurisdiction as none of the transactions have taken place within the territorial jurisdiction of court of Chief Judicial Magistrate, Srinagar. 7. While having glance through the contents of the complaint, the contention raised is found to be attractive and with merit. In both the complaints it is alleged that complainant is a business concern having its principle place of business at Karan Nagar Srinagar J&K. The proprietor of the firm- the complainant, in the month of February,2007 went to Bangalore for the purpose of buying lands in and around Devanhalli Bangalore Rural District where the complainant along with his father Shri Roshan Lal Mawa and his brother Shri Sunil Mawa met both the accused and negotiated to buy agricultural land bearing survey No. 89 at Polahalli Village Chennarayapatna Hobli Devanhalli Taluk Bangalore Rural District measuring 2 Acres as were in the name of accused No.1. Price of the land was settled at Rs. 64,50,000/-. The complainant got a sum of Rs. 30,00,000/ transferred from his account maintained in Punjab National Bank, Srinagar through RTGS to the joint account No. 54539 maintained in Union Bank of India, Domlur Branch Bangalore. It was further agreed that the remaining balance amount of Rs. 34, 50,000/- will be paid to the accused on 26th of March, 2007 i.e. the date fixed for registration of the sale deed. While reaching to Devanhalli Sub-Registrar’s office on 26.3.2007, the accused asked for balance amount of sale consideration with an additional amount of Rs. 5/lacs, as a result the deal was cancelled and it was agreed that the accused will return back the advance amount of Rs. 30,00,000/ as was paid by the complainant. On 30.3.2007 accused issued two post dated cheques in the name of complainant for an amount of Rs. 15/ lacs each with details as given above. 8. On 23rd April, 2007, the complainant presented the said cheques drawn on Union Bank of India, Domlur Branch Bangalore through his bankers Punjab National Bank, Hudson Circle Bangalore. The cheques were dishonoured due to "insufficiency of funds". 15/ lacs each with details as given above. 8. On 23rd April, 2007, the complainant presented the said cheques drawn on Union Bank of India, Domlur Branch Bangalore through his bankers Punjab National Bank, Hudson Circle Bangalore. The cheques were dishonoured due to "insufficiency of funds". The complainant served notice of demand through his advocate at Bangalore itself. When the payment was not made within the stipulated period, the complainant filed complaints in the Court of Chief Judicial Magistrate, Srinagar. 9. From the allegations contained in the complaint(s) as briefly noticed above, it is quite clear that the cheques have been drawn at Bangalore, presented at Bangalore i.e. Punjab National Bank, Hudson Circle Bangalore, same have been returned unpaid at the same place, notice of demand has also been issued at Bangalore and the failure of the drawer to make payment has also happened at Bangalore. So all the five acts have been done at Bangalore, therefore, in view of the judgment rendered in K. Bhaskaran case as referred above, in the given facts and allegations contained in the complaint it is only the Court at Bangalore which has jurisdiction to entertain such complaint. None out of the series of acts have been done at Srinagar. 10. No doubt learned revisional court has noticed that the complainant has its head office at Srinagar but that has nothing to do with the transactions because proprietor of the complainant company had gone to Bangalore where he met the accused and right from the beginning all acts relating to the deal vis-a-vis purchase of land began and ended at Bangalore itself. 11. During the pendency of these two petitions in this Court, learned counsel for the respondent filed an application seeking leave to place on record important material which is directly linked with the issue of jurisdiction. The material sought to be placed on record is (1) one deposit slip pertaining to cheque No. 60.3652 drawn on Union Bank of India Bangalore, same has been pressed by the complainant at Punjab National Bank, Amirakadal Srinagar, (2) memo received from Union Bank of India, Bangalore and (3) letter dated 1.5.2007 addressed by Senior Manager, Punjab National Bank, Amirakadal Srinagar to the complainant wherein it is mentioned that cheque No. 603651 and 603652 of Union Bank of India BO Domlur Bangalore for Rs. 15/lacs each deposited by the complainant in his account No. 2432008700001733 have been returned unpaid with the memo "funds insufficient". In the complaint complainant has alleged that the said cheques were presented through his bankers Punjab National Bank, Hudson Circle Bangalore which in view of this said letter is not correct because as per this letter the said cheques have been presented at Punjab National Bank, Branch Amirakadal Srinagar. These documents have vital bearing on the question of jurisdiction. 12. In opposition to the application seeking leave for taking on record the aforesaid documents, the accused have filed detailed objections stating therein that the application is misconceived as the respondent-complainant on his own showing has presented the cheques for encashment through his bankers Punjab National Bank, Hudson Circle Bangalore, therefore, he cannot be permitted to place on record the said material. 13. It is trite that inherent power with which the Court is clothed in terms of Section 561-A of Criminal Procedure Code is to be exercised sparingly with the object of preventing abuse of process of any Court or to otherwise secure the ends of justice. 14. Negotiable Instrument Act has a laudable object of reposing faith and confidence in the cheque transaction system. In order to control the designed acts and foul play in the hands of cheque cheaters by having resort to trickery approach, various safeguards have been provided which include expanding the horizon of choosing the Courts for instituting complaints provided in the series of acts if any act is shown to have been done at any of the places where the complainant has choice to lodge the complaint. But expansion is not such which would take into its sweep the places which have no connection with the series of acts or the transaction. 15. The application filed for taking on record the documents have an important impact on the question of jurisdiction so cannot be ignored even though the complainant due to mistake have slipped in making mention in the complaint about the presentation of the cheques through its bankers at Bangalore. What could be the real value of these documents, at this stage same cannot be commented upon as same is better to be left for determination of the trial court. 16. What could be the real value of these documents, at this stage same cannot be commented upon as same is better to be left for determination of the trial court. 16. No doubt on the basis of allegations contained in the complaint all the acts have taken place at Bangalore but in view of the documents which have been produced, what emerges is that the complainant has presented the said cheques drawn on Union Bank of India, Domlur Branch Bangalore through his bankers Punjab National Bank, Branch Amirakadal Srinagar. If same is found to be correct, then in view of the judgment reported in (1999) 7 SCC 510 as referred above, the trial court has also jurisdiction as it falls within five local areas as specified therein. 17. The order passed by the trial court is illegal as the learned trial court has not addressed the issue of jurisdiction. The learned revisional court has also mis-appreciated the position of law as in view of the contents of the complaint, the court of Chief Judicial Magistrate, Srinagar lacked the jurisdiction, therefore, the order of revisional court is bad in the eye of law. 18. For securing the ends of justice, matter is required to be reconsidered by the learned trial court in the light of material already available on the trial court record as well as on the basis of material such as letter, memo and deposit slip as produced in this Court, complainant shall be given an opportunity also to correct his complaint relatable to presentation of the cheques through its bankers at Srinagar. 19. Both the petitions are allowed. Orders passed on both the complaints by the trial court as well as by the revisional court, impugned in these two petitions, are set aside. Learned trial court i.e. Court of Chief Judicial Magistrate, Srinagar shall initiate proceedings afresh in light of the observations made hereinabove and pass appropriate orders regarding issuance of process as shall be warranted in accordance with Chapter XVII of Cr.P.C. Complainant to appear before trial court on 25th of January, 2010. 20. Learned trial court i.e. Court of Chief Judicial Magistrate, Srinagar shall initiate proceedings afresh in light of the observations made hereinabove and pass appropriate orders regarding issuance of process as shall be warranted in accordance with Chapter XVII of Cr.P.C. Complainant to appear before trial court on 25th of January, 2010. 20. The documents produced in this Court by the respondent-complaint such as deposit slip, memo received from Union Bank of India, Bangalore and letter dated 1.5.2007 issued by Punjab National Bank, Branch Amirakadal Srinagar, be returned to the complainant-respondent after retaining photocopies of the same on the file so as to enable the complainant to produce the said documents before the trial court as shall be permissible under law. 21. Copy of the judgment be sent to trail court for information. 22. Disposed of as above.