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2012 DIGILAW 201 (HP)

Rameshwar Kumawat v. Navdeep Jhanwar

2012-04-17

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J. Both these petitions are being disposed of by this judgment as a common point of law has been urged. 2. In Cr.M.M.O No.169 of 2009, complaint has been instituted against the petitioner herein under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the `N.I. Act’) on the allegations that he had issued a cheque No.216279, dated 10.1.2005 for Rs.10,00,000/-(Rs.ten lacs) drawn on the State Bank of Bikaner and Jaipur in satisfaction of a purported acknowledged debt. When this cheque was presented by the complainant to his banker for clearance i.e. the State Bank of Patiala, Hamirpur, it was dishonoured on presentation. Hence the complaint. Prayer made is that the order passed by the learned Chief Judicial Magistrate, Hamirpur on 7.8.2006 summoning the accused-petitioner herein to face trial under the N.I. Act be quashed and set aside. 3. In Cr.M.M.O. No.79 of 2010, the order of the learned Additional Sessions Judge, Fast Track Court, Hamirpur, dismissing the revision petition instituted by the petitioner herein challenging the legality of the summoning order has been challenged. In both these petitions, the submission made by learned counsel appearing for the petitioner is that the summoning order has been passed without any application of mind and against the material on the record and the revisional order does not at all determine the jurisdiction of the trial Court to proceed in the matter. 4. The point urged for consideration is that the necessary ingredients under Section 138 of the N.I. Act have not been complied either in the pleadings in the complaint or proved on the record in the evidence of the complainant and in this event, the summoning order is bad in law and constitutes an abuse of the process of the law. 5. It is undisputed before me that before the passing of the summoning order, the statement of the complainant was recorded. Learned counsel appearing for the petitioner submits that the order shows a total non-application of mind because even if the averment as made in the complaint and the evidence of the complainant is accepted, in that event, the Court at Hamirpur does not have territorial jurisdiction to try the case. Learned counsel appearing for the petitioner submits that the order shows a total non-application of mind because even if the averment as made in the complaint and the evidence of the complainant is accepted, in that event, the Court at Hamirpur does not have territorial jurisdiction to try the case. Learned counsel then submits that this cheque is the subject matter of judicial proceedings before the Additional Chief Judicial Magistrate at Jaipur where the sworn statement of the complainant (photocopy Annexure P-3 with this petitioner has been filed), which is contrary to the averments made by the petitioner in the revision petition and also statement on oath. Infact the submission in a nutshell is that the complainant is playing hide and seek with the law making different statements at different times to suit his purpose. He submits that the summoning order is nothing but an abuse of the process of the Court. 6. Adverting to the law on the point, learned counsel relies upon the decision of the Supreme Court in K.Bhaskaran vs. Sankaran Vaidhyan Balan and Another, (1999)7 SCC 510, holding:- “11. We fail to comprehend as to how the trial Court could have round so regarding the jurisdictional question. Under Section 177 of the Code "every offence shall ordinarily be inquired into and tried in a Court within whose jurisdiction it was committed." The locality where the bank (which dishonoured the cheque) is situated cannot be regarded as the sole criteria to determine the place of offence. It must be remembered that offence under Section 138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in Clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act. 12. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act. 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. 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 inquired 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 con-catenation of a number of acts. 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. 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 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act. In this context a reference to Section 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 inquired 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.” (pp.517-518) 7. Learned counsel then submits that these principles have been reaffirmed by the Supreme Court in Y. Abraham Ajith and Others vs. Inspector of Police, Chennai and Another, 2004 SCC(Cri) 2134, where the word`cause of action’, as contemplated in Sections 177 and 178 of the Code of Criminal Procedure, has been held to mean:- “16. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. 17. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. (Black's Law Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" {4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.” (p.2139) 8. Learned counsel also places reliance on the decision of the Supreme Court in Shri Ishar alloy Steels Ltd. vs. Jayaswals Neco Ltd., (2001)3 SCC 609, holding:- “7. It has further to be noticed that to make an offence under Section 138 of the Act, it is mandatory that the cheque is presented to "the bank" within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. It is the cheque drawn which has to be presented to "the bank" within the period specified therein. When a post-dated cheque is written or drawn, it is only a bill of exchange. The postdated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six months period has to be reckoned, for the purposes of Section 138 of the Act, from the said date. 8. When a post-dated cheque is written or drawn, it is only a bill of exchange. The postdated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six months period has to be reckoned, for the purposes of Section 138 of the Act, from the said date. 8. Section 138 provides that where any cheque drawn by a person on an account by him with a 'banker' for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by "the bank" unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence punishable with imprisonment as prescribed therein subject to the conditions mentioned in Clauses (a), (b) and (c) of the proviso. Section 3 of the Act defines the "banker" to include any person acting as a banker and any post office saving bank. Section 72 of the Act provides that a cheque must, in order to charge the drawer, be presented at the bank upon which it is drawn before the relations between the drawer and his banker has been altered to the prejudice of the drawer. 9. The use of the words "a bank" and "the bank" in the section is indicator of the intention of the Legislature. The former is indirect article and the latter is pre-fixed by direct article. If the Legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is pre-fixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is pre-fixed by the definite article "the". The same section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The same section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns, with a specifying of particularising effect opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote particular thing or a person. "The" would, therefore, refer implicitly to a specified bank and not any bank. "The bank" referred to in Clause (a) to the proviso to Section 138 of the Act would mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued. 10. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to the (C) bank. The non presentation of the cheque to the drawee-bank within the period specified in the Section would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Sections 2, 72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee.” (pp.612-614) 9. Lastly, in Harman Electronics Private Limited and Another vs. National Panasonic India Private Limited, (2009)1 SCC 720, the Court holds:- “20. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also 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, commission of an offence completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., (2001)6 SCC 463 emphasis has been laid on service of notice. 21. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-`-vis the provisions of the Code of Criminal Procedure. 22. Learned counsel for the respondent contends that the principle that the debtor must seek the creditor should be applied in a case of this nature. We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle.” (pp.731-732) 10. There can be no dispute that the proposition of the law is well established by the Supreme Court and cannot leave any doubt about its certainty. What I now have to consider at this stage is as to whether the submissions made by the petitioner herein have been substantiated by the record. The question of jurisdiction is fundamental to the entire case that is the power of the Court to take cognizance of the case. This has to be established as a fact before the learned trial Court. 11. In Lalu Prasad alias Lalu Prasad Yadav vs. State of Bihar through CBI (AHD) Patna, (2007)1 SCC 49, adverting to the provisions on jurisdiction, at the time of framing of charge under Sections 227, 228, the Court holds that elaborate reasons are not required as that would prejudice the trial. The Court then proceeds to hold:- “16.But where the question of jurisdiction is raised and the trial court is required to adjudicate that issue, it cannot be said that reasons are not to be recorded. In such a case reasons relate to question of jurisdiction and not necessarily to the issue relating to framing of charge. In such a case reasons dealing with a plea relating to jurisdiction have to be recorded.” (p.59) 1. 12. In the present case, a serious allegation has been made against the complainant that he has made a statement on oath before the Court of the learned Additional Chief Judicial Magistrate, Jaipur stating a different set of facts which, if considered, ousts the jurisdiction of the Court at Hamirpur and perhaps the very edifice of the case. 12. In the present case, a serious allegation has been made against the complainant that he has made a statement on oath before the Court of the learned Additional Chief Judicial Magistrate, Jaipur stating a different set of facts which, if considered, ousts the jurisdiction of the Court at Hamirpur and perhaps the very edifice of the case. Only a photocopy of the statement has been placed on the record and the petitioner herein had no opportunity to prove the statement in evidence. At the time of summoning, issue process, a detailed order is not required to be passed by the learned Magistrate. (See: Kanti Bhadra Shah and Another vs. State of W.B., (2000)1 SCC 722 and (2000)1 SCC 745) 13. In the revisional order, which is also challenged in Cr.M.M.O No.79 of 2010, the learned Court has dismissed the revision on the ground that facts are .yet to be proved on the record of the case. Jurisdiction being fundamental of taking cognizance of the offence, this fact has to be determined before proceeding with the case further. What is required to be proved on the record is the fact constituting jurisdiction to take cognizance. For this purpose, the petitioner of course will be given an opportunity to establish such facts either by leading evidence or only on the pleadings and material on the record if he so chooses to do so. 14. In these circumstances, both these petitions are disposed of with the directions that:- (a) the learned trial Court shall proceed to determine as to whether it has jurisdiction to try the case in terms of the law laid down by the Supreme Court (supra); (b) whether the statement made in Annexure P-3, which has been made before the Court of the Additional Chief Judicial Magistrate in Jaipur, ousts the jurisdiction of this Court; (c) whether the complaint filed along with the evidence produced before summoning the accused, coupled with the statement made at Jaipur, places a jurisdictional bar to the Courts at Hamirpur to proceed with the case. It is only thereafter if the Court finds that it has jurisdiction, it should proceed with the trial of the case. I find that the case has been hanging fire since the year 2005. The summoning order was issued on 7.8.2006 and for six years no action has been taken and the case is not proceeded any further. It is only thereafter if the Court finds that it has jurisdiction, it should proceed with the trial of the case. I find that the case has been hanging fire since the year 2005. The summoning order was issued on 7.8.2006 and for six years no action has been taken and the case is not proceeded any further. In these circumstances, a direction is issued to the learned trial Court to conclude the trial as expeditiously as possible on the preliminary issue not later than 31st October, 2012.