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2010 DIGILAW 643 (BOM)

Sharad Jhunjhunwala v. Compuage Infocom Ltd.

2010-04-27

V.M.KANADE

body2010
JUDGMENT:- By this petition, the petitioner, who is original accused in a complaint filed by respondent no. 1 under Section 138 read with Section 141 of the Negotiable Instruments Act, is challenging an order passed by the Sessions Court in Criminal Revision Application No. 1113/2009 whereby the learned Sessions Judge was pleased to set aside the order dated 24th March, 2009 passed by the learned Magistrate returning the complaint. Brief facts are as under : 2. A complaint was filed by the respondent no. 1 against the petitioner in the 14th Court, Girgaum, Mumbai, vide Case No.453/SS/2006 for the offence punishable under Section 138 read with Sections 141 and 142 of the Negotiable Instruments, Act. It is alleged that accused nos.2 and 3 placed order to the complainant On 10th December, 2005 and pursuant to the said order, the complainant had sold, supplied and delivered the goods which were received by the accused. Thereafter, the bills for the said supply of goods were sent to the accused who issued a cheque dated 22nd April, 2006 for an amount of Rs.44,52,238/-. The said cheque was drawn on Punjab National Bank, Alipur Chetla" Kolkata-700 027. The cheque was deposited by the complainant in his bank viz. HDFC Bank Limited, Fort Branch, Mumbai - 400 023. However, the said cheque was returned unpaid with the remark "Exceeds arrangements". The intimation of dishonour of the cheque was given to the complainant on 27th April, 2006. Notice was issued, however, no reply was given though the Notice was received by the accused and therefore, the said complaint was filed in the 14th Court, Girgaum, Mumbai. Process was issued On the said complaint and the accused appeared before the said court and filed an application under Section 201(a) of the Cr.P.C. The said application was heard and decided by the learned Magistrate which was pleased to reject the said application by order dated 14th October, 2008. It is an admitted position that this order was not challenged by the accused - petitioner herein. 3. Thereafter, a second application was filed by him in the same court viz. 14th Court, Girgaum, Mumbai under Section 201(a) of the Cr.P.C.. The complainant raised an objection that the second application was not maintainable in view of the specific provision of Section 362 of the Cr.P.C.. 3. Thereafter, a second application was filed by him in the same court viz. 14th Court, Girgaum, Mumbai under Section 201(a) of the Cr.P.C.. The complainant raised an objection that the second application was not maintainable in view of the specific provision of Section 362 of the Cr.P.C.. The learned Magistrate, however, held that in view of the subsequent judgment which was passed by the Apex Court in the case of Harman Electronics (P) Ltd. & Anr. Vs. National Panasonic (India) Ltd. (2009(1) Banker's Journal 1 (S.C. of Delhi) : [2009 ALL MR (Cri) 280 (S.C.) : 2009(1) ALL'MR 479 (S.C.)]), there was a change of circumstance and therefore, the learned Magistrate was of view that it was necessary to reconsider the said application. The learned Magistrate on merits came to the conclusion that the order was placed by the accused at the branch office of the complainant at Kolkata and the cheque was issued at Kolkata and the goods were also delivered from the branch of the complainant situated at Kolkata. The learned Magistrate, therefore, held that in view of the judgment of the Apex Court, the complaint be returned to the complainant for presenting it before the proper court. 4. Against this order, the Criminal Revision Application was filed by the complainant in the Court of Sessions, Greater Bombay. The Sessions Court allowed the revision application and held that the learned Magistrate did not have jurisdiction to try and decide the said application since the Magistrate did not have a power to review his own orders and therefore, without going into merits of the case, on this count alone, revision application was allowed. Being aggrieved by the said order, accused has preferred this petition. 5. The learned Counsel appealing on behalf of the petitioner has submitted that in view of the judgment of Apex Court in the case of (Harman Electronics (P) Ltd.), the learned Magistrate was entitled to consider the ratio of the said judgment and therefore, the impugned order passed by the learned Magistrate did not amount to the review of its own order. It was secondly submitted that in view of the judgment of Harman Electronics (P) Ltd., the trial court did not have jurisdiction to try and decide the said case. He also relied on the judgment of this Court in the case of Dipti Kumar Mohanty Vs. It was secondly submitted that in view of the judgment of Harman Electronics (P) Ltd., the trial court did not have jurisdiction to try and decide the said case. He also relied on the judgment of this Court in the case of Dipti Kumar Mohanty Vs. M/s. Videocon Industries Limited, reported in 2009 Criminal Law Journal 3220 : [2009(6) ALL MR 910]. 6. On the other hand, the learned Counsel for respondent no.1 submitted that the learned Magistrate could not have reviewed his own orders in view of Section 362 of the Cr.P.C. He submitted that even otherwise, in view of the judgment of the Apex Court in the case of K. Bhaskaran Vs. Sankaran Vaidyan Balan and another, reported in 2000(5) Bombay Cases Reporter 178 (S.C.) : [1999 ALL MR (Cri) 1845 (S.C.) : 1999(4) ALL MR 452 (S.C.)], the trial court had the jurisdiction to try and decide the said case. She also relied on the judgment of Division Bench of this Court in the case of Criminal Writ Petition No.3158/ 2009 in the case of Mrs. Preetha S. Babu Vs. V oltas Limited dated 3rd March, 2010 (since reported in 2010 ALL MR (Cri) 1025). 7. I have heard both the learned Counsel at length. In my view, there is some substance in the submission made by the learned Counsel for respondent no.1. The petitioner herein initially had preferred an application under Section 201(a) before the learned Magistrate who had by his order dated 14th October, 2008 rejected the said application by passing a reasoned order. Thereafter, second application was filed by the petitioner herein on the same ground and the second application was entertained by the learned Magistrate and by order dated 25th June, 2009, the said application was allowed and the complaint was returned to the complainant for presentation to the proper court. Section 362 of the Cr.P.C. imposes a bar on the criminal courts to review its own orders. Section 362 reads as under : "Section 362.- Court not to alter judgment. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 8. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 8. Perusal of the aforesaid provision, therefore, clearly reveals that the learned Magistrate did not have the jurisdiction to review its own order and therefore, the learned Magistrate could not have entertained the second application which was filed under Section 201(a) of the Cr.P.C.. In my view, therefore, the learned Sessions Judge was justified in allowing the revision application filed by respondent no.1 herein. Secondly, so far as question of jurisdiction is concerned, respondent no.1 company has its registered office in Mumbai and is carrying on business at Mumbai. Pursuant to the goods which were delivered to the petitioner, he had issued a cheque for clearing the amount due and to discharge their liability towards the purchase of the goods and in order to make part payment of the said goods, a cheque dated 22nd April, 2006 for an amount of Rs.44,52,238/- was issued in favour of respondent no.1. This cheque was deposited for encashment by respondent no.1 in its bank at HDFC Bank Limited, Fort Branch, Mumbai, on 22nd April, 2006 which was returned unpaid by the bankers for the said company. Thereafter, a notice was given by respondent no.1 dated 11th May, 2006 through his Advocate from Bombay. Since the cheque was deposited by the respondent no. 1 in its bank in Mumbai and notice was issued in Mumbai, in view of the ratio of the judgment in K. Bhaskaran case [1999 ALL MR (Cri) 1845 (S.C.) : 1999(4) ALL MR 452 (S.C.)] (supra), the Court in Mumbai had the jurisdiction to try and decide the said complaint. The Division Bench of this Court in the case of M/s. Preetha S. Babu [2010 ALL MR (Cri) 1025] (supra) has held that in such circumstances, the Mumbai Court would have the jurisdiction to entertain the complaint. The Division Bench of this Court has taken into consideration the judgment in the case of M/s. Harman Electronics.(P) Ltd. [2009 ALL MR (Cri) 280 (S.C.) : 2009(1) ALL MR 479 (S.C.)] (supra) and also the case of Ahuja Nandkishore Dongre Vs. State of Maharashtra & Anr. The Division Bench of this Court has taken into consideration the judgment in the case of M/s. Harman Electronics.(P) Ltd. [2009 ALL MR (Cri) 280 (S.C.) : 2009(1) ALL MR 479 (S.C.)] (supra) and also the case of Ahuja Nandkishore Dongre Vs. State of Maharashtra & Anr. reported in 2007 Criminal Law Journal 115 : [2006 ALL MR (Cri) 3357] and Dipti Kumar Mohanty [2009(6) ALL MR 910] (supra) and after having taken into consideration the said judgments, the Division Bench came to the conclusion that in cases where the registered office is situated in Mumbai and statutory notice was issued from Mumbai and the cheque was deposited in Mumbai and it was dishonoured in Mumbai, the cause of action had arisen in Mumbai and therefore, the Magistrate before whom the complaint is filed has jurisdiction to try and decide the case. The Division Bench also took into consideration the judgment of the Apex Court in the case of K. Bhaskaran (supra) and another judgment of the Supreme Court in the case of Shams had Begum (Smt.) Vs. B. Mohammed «2008)13 SCC 77: [2008 ALL MR (Cri) 3547 (S.C.)]) and Musaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. «2006)3 SCC page 658 : [2006(2) ALL MR (S.C.) 140]). 9. In my view, the ratio of the said judgment, therefore, will clearly apply to the facts of the present case. Therefore, there is no merit in the submission made by the learned Counsel for the petitioner. 10. The petition, therefore, is dismissed. The Sessions Court shall decide the criminal case, expeditiously and in any case, within a period of three month. 11. Writ petition is disposed of. Petition dismissed.