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2010 DIGILAW 615 (MP)

Murli Dhar v. Ishwar Dayal Girdhani

2010-06-24

INDRANI DATTA

body2010
ORDER 1. Petitioner has filed this petition, under section 482 CrPC for setting aside the order dated 22.7.2009 passed by learned Second ASJ Datia in Criminal Revision No. 47/09 upholding the order dated 27.1.09 passed by CJM Datia in Case No. 985/09 whereby application for dismissing the complaint for want of territorial jurisdiction filed by the petitioner/accused was dismissed by that Court. 2. Facts in compendium are that respondent filed a complaint under section 138 Negotiable Instruments Act before the Court of CJM Datia mentioning therein that wife of petitioner Poonam Girdhani puchased a house No. 3 A/38 situated at Mahaveer Nagar Kota Rajasthan which was registered in the name of Smt. Jethibai W/o Shri Harish Thavarani by way of an agreement. After entering into agreement complainant met the petitioner who is a property dealer for purpose of transferring house and for taking possession of the house. Thereafter respondent/complainant handed over entire documents concerning house. The petitioner then started avoiding complainant and refused to return the document obtained from complainant and asked her to sell said house to petitioner. The respondent has no alternative and in compelling circumstances, he accepted the proposal and the house was valued by petitioner worth Rs. 16 lacs whereas market value was worth Rs. 21 lacs. The petitioner agreed to pay Rs.3. 75 lacs in respect of necessary deposits in Rajasthan Housing Board and Rs. 3.18 lacs towards 50% benefit amount of sale-transaction and executed a consent letter dated 22.4.08 but respondent has not received the possession of the house. Thereafter petitioner gave Rs. 50,000/- in cash and Rs. 6.45 lacs by cheque to be drawn at Bank: of Rajasthan to complainant. 3. Complainant presented the cheque No. 892111 dated 9.6.2008 in State Bank: of India, Agricultural Branch, Datia but bank: informed that due to stop payment, cheque has been returned without payment. Then notices were sent by respondent to petitioner by registered post and UPC post and thereafter complaint has been filed in the Court. On the complaint filed by the respondent, learned CJM Datia has taken cognizance and issued summons against the petitioners/accused. Petitioner appeared in that Court and filed one application for transferring the case on the anvil that the Datia Court is not having territorial jurisdiction and that application was rejected. Against that order one revision No. 47/09 was preferred, which also met with dismissal, giving rise to the petition. 4. Petitioner appeared in that Court and filed one application for transferring the case on the anvil that the Datia Court is not having territorial jurisdiction and that application was rejected. Against that order one revision No. 47/09 was preferred, which also met with dismissal, giving rise to the petition. 4. It is contended by learned counsel for petitioner that orders passed by the learned Sessions Court as well as learned trial Court are illegal and bad in law. It is asserted that entire transaction has occurred at Kota Rajasthan and the Cheque in question is returned unpaid by Bank of Rajasthan, Branch Maa Bharati Talwandi, Kota. Nothing has happened at Datia except issui,ng notice by respondent/complainant, therefore, CJM Court at Datia has no jurisdiction to try the matter. Hence that order is to be set aside. 5. Learned counsel for the petitioner drew this Court's attention to a citation in Harnam Electronics Private Limited and another v. National Panasonic India Private Limited (2009) 1 SCC 720 . In that case it was observed that appellant was carrying on business in Chandigarh. Cheque was issued and dishonoured in Chandigarh, complainant sent a notice from Delhi and then filed complaint at Delhi. It is held by the apex Court that a Court derives a jurisdiction only when the cause of action arose within its jurisdiction. Distinction must be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, the commission of an offence is completed. Giving of notice, therefore, cannot have any precedent over the service. Delhi High Court has no jurisdiction to try the case and the case has to be transferred to Chandigarh. 6. Furthermore, reliance is placed on a citation in Ahuja Nandkishore Dongre v. State of Maharashtra & Am: 2007 CriLJ 115 in which Bombay High Court Nagpur Bench has held that Cheque as a negotiable instrument is required to be discharged at place mentioned therein. Jurisdiction has to be gathered from place where money was intended to be paid. 6. Furthermore, reliance is placed on a citation in Ahuja Nandkishore Dongre v. State of Maharashtra & Am: 2007 CriLJ 115 in which Bombay High Court Nagpur Bench has held that Cheque as a negotiable instrument is required to be discharged at place mentioned therein. Jurisdiction has to be gathered from place where money was intended to be paid. Court at another place within whose jurisdiction cheque was merely presented for relization cannot be said to have jurisdiction to try the offence. 7. Placing reliance on the above citations it is contended on behalf of the petitioner that entire transactions occurred at Kota. Merely sending notice from Datia or presenting a cheque at Datia will not render the case in territorial jurisdiction of Datia Court. Hence, a proper direction for transferring the case is to be issued. 8. In backlash, learned counsel for the respondent opposed the petition and submitted that orders passed by both the Courts below are legal and proper and no interference is warranted. It is urged that disputed cheque was presented for encashment in the State Bank of India, Agricultural branch, Datia and when the cheque was issued in favour of respondent/complainant by the petitioner it was clearly intended that the cheque was being issued to be presented in the Bank at Datia because it is only the place where the respondent is having his account, hence cheque was issued account-payee and notice was also issued from Datia. Thus, the Court at Datia has territorial jurisdiction to try the matter. It is further submitted that as per the provisions enshrined in section 178 (d) CrPC when offence is consisted of several acts done in different areas, it may be enquired into or tried by Court over any of such local areas and in the present case one of ingredients of offence is committed in Datia and therefore Court of Datia has legal jurisdiction to try the matter. Hence this petition is to be dismissed. 9. Heard the rival contentions of parties and perused the documents on record. So far as judgment relied upon by petitioner in Harman Electronics Private Limited (supra) is concerned, the facts of the case are distinguishable from the case at hand. In that case entire transactions were held at Chandigath and not a single transaction was held at Delhi. While in the present case, cheque was presented at Datia. So far as judgment relied upon by petitioner in Harman Electronics Private Limited (supra) is concerned, the facts of the case are distinguishable from the case at hand. In that case entire transactions were held at Chandigath and not a single transaction was held at Delhi. While in the present case, cheque was presented at Datia. So far as another citation in the case of Ahuja Ndndkishore Dongre (supra) is concerned, in the light of apex Court's observation made in K. Bhaskaran v. Sankaran Vaidhyan Balan and another 2000 (1) MPLJ 1, I do not agree with the view expressed by Bombay High Court, Nagpur Bench. 10. Admittedly, the petitioner/accused gave a cheque No. 892111 dated 9.6.2008 for an amount of Rs. 6.45 lacs drawn at Bank of Rajasthan Branch Maa Bharati Talwandi Kota and that" is account payee cheque, which was presented by complainant on 9.6.08 in the State Bank of India, Agricultural Branch, Datia as he is having account in that bank and the said cheque stood dishonoured at Datia. Therefore, notice was issued from Datia. 11. In case of K. Bhskaran (supra) concerning territorial jurisdiction of the Court, apex Court has held that in case of dishonour of cheque, complaint can be filed at any of the places where any of the following acts took place (1) drawing of the cheque; (2) presentation of the cheque to the Bank; (3) returning the unpaid cheque 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 possible that each of those five acts could be done at five different localities. A concatenation of all the above five is a sine quo non for the completion of the offence under section 138. Thus it is clear, if the five different acts were done in five different localities anyone 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 view of section 178 (d) of the Code of Criminal Procedure. Thus it is clear, if the five different acts were done in five different localities anyone 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 view of section 178 (d) of the Code of Criminal Procedure. In other words, the complainant can choose anyone of those Courts having jurisdiction over any of the local areas within the territorial limits of which anyone of those five acts was done. 12. In case of Smt. Shamshad Begum v. B. Mohammed 2008 (3) CCSC 1619 (SC) the apex Court while deciding the question of territorial jurisdiction of Court in case of proceedings under section 138 of Negotiable Instruments Act, 1981 has followed the ratio of same principle as have already been laid down by the apex Court in case K. Bhaskaran (supra). 13. Considering the overall facts and circumstances of the case it is apparent that cheque is dishonoured from Bank at Datia and notice was sent to petitioner/ accused from Datia, therefore, cause of action arises at Datia. Thus, learned Courts below have rightly dismissed the application of the petitioner. There is no perversity in the orders of both the Courts below. Accordingly, the petition being sans merit, it hereby dismissed. Consequently, interim order dated 4.2.2010 stands vacated.