Research › Search › Judgment

Orissa High Court · body

2012 DIGILAW 292 (ORI)

PRASANTA KUMAR PAL v. DEBASIS PATTNAIK

2012-07-09

I.MAHANTY

body2012
JUDGMENT : I. Mahanty, J. - In this application u/s 482 Cr.P.C., the petitioner-Prasanta Kumar Pal has sought for quashing the order of cognizance dated 15.11.2010 passed by the learned S.D.J.M., Sadar, Cuttack in I.C.C. Case No. 1062 of 2010 taking cognizance against him u/s 138 of the N.I. Act on the ground that no part of the cause of action arose within the jurisdiction of the learned S.D.J.M., Sadar, Cuttack and the order of cognizance was passed by a court lacking territorial jurisdiction. Shorn of unnecessary details, as would be evident from the case records, the complainant-Opp. Party No. 1 is a permanent resident of the district Keonjhar, but in Column-1 of the complaint petition he has mentioned his present address as Jyotivihar, Bidanasi, Cuttack and in Column-3 he has mentioned the place of occurrence as Cuttack. Basing on these averments made in the complaint petition, the learned S.D.J.M. has proceeded to entertain the matter and exercise his jurisdiction thereunder. The case of the complainant (Opp. Party No. 1) is that he is a permanent resident of Keonjhar and the accused-petitioner who had his business at Joda, had approached the petitioner for a friendly loan of Rupees ten lakhs for the purpose of business. The complaint petition further indicates that on 21.02.2010 an amount of Rs. 10,00,000/-was handed over to the accused-petitioner at Keonjhar and by way of repayment of the loan amount, the accused-petitioner handed over a Cheque dated 24.09.2010 drawn on Bank of India, Keonjhar bearing Cheque No. 009105 for an amount of Rs. 10,00,000/-. The complainant thereafter claims to have deposited the said cheque in his bank i.e. the State Bank of India, Keonjhar Branch for its encashment on 25.9.2010 and the said cheque given by the accused was dishonoured by the Bank at Keonjhar on the same day i.e. 25.9.2010. Thereafter, a legal notice was issued to the accused-petitioner on 30.09.2010 under the N.I. Act through an Advocate based at Cuttack and since the accused failed to pay the cheque amount within 15 days stipulated in the notice, the present complaint proceeding came to be filed at Cuttack. 2. Thereafter, a legal notice was issued to the accused-petitioner on 30.09.2010 under the N.I. Act through an Advocate based at Cuttack and since the accused failed to pay the cheque amount within 15 days stipulated in the notice, the present complaint proceeding came to be filed at Cuttack. 2. The case of the writ petitioner is that while coming from Keonjhar to Cuttack on 17.9.2010 on the way to Bhubaneswar, he lost his black colour bag containing Bank of India Cheque No. 910129150 and another cheque book of Indusind Bank and cash along with personal belongings. The petitioner on learning about the loss of his bag, reported the matter to the I.I.C., Nayapalli P.S. vide S.D.E. No. 426 dated 21.9.2010. Accordingly, on the request of the petitioner, his Bank of India Account at Keonjhar Branch was closed on 12.3.2010. It is further submitted that the petitioner had given his reply to the demand notice on 22.10.2010. The speed post receipt and copy of the reply to the demand notice have been annexed to this application as Annexures-5 and 6 respectively. 3. It is asserted on behalf of the accused-petitioner that no part of the cause of action arose within the territorial jurisdiction of the learned S.D.J.M., Sadar, Cuttack and only since the Advocate for the complainant (Opp. Party No. 2) resides at Cuttack, the learned SDJM without perusing the averments made in the complaint petition, as well as, initial statement of the complainant, as well as, the documents annexed thereto, proceeded to exercise jurisdiction and passed the impugned order of cognizance. 4. Mr. Nayak, learned counsel for Opp. Party No. 2, on the other hand contended that it is well settled by the Hon'ble Supreme Court in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, that: The offence under S. 138 of the Act can be completed only with the concatenation 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. It is not necessary that all the 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 concatenation of all the above five is a sine qua non for the completion of the offence under S. 138 of the Act. Referring S. 178(d) of Code it is clear that 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 S. 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 S. 138 of the Act. Under S. 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. 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. S. 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. S. 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 jurisdictions to try the case. Further again, S. 179 of the Code stretches its scope to a still wider Horizon. 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. Further again, S. 179 of the Code stretches its scope to a still wider Horizon. 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. Apart from the above, reliance is also placed by the complainant on another decision of the Hon'ble Supreme Court in the case of Rajiv Modi Vrs. Sanjay Jain and Others, (2009) 44 OCR (SC) 44 wherein it has been held that to constitute the territorial jurisdiction, the "whole" or a "part" of "cause of action" must have arisen within the territorial jurisdiction of the Court and the same must be decided on the basis of the averments made in the complaint without embarking upon an inquiry as to the correctness or otherwise of the said facts. Placing reliance on the aforesaid decision, learned counsel for the complainant submits that since the complainant has stated in his complaint petition that he is presently residing at Cuttack and since it is averred in Column-3 of the complaint petition that the cause of action for initiating the present case arose at Cuttack, the learned S.D.J.M. possesses the necessary jurisdiction in the matter and no objection to the same ought to be entertained. 5. In the light of the submissions made by the learned counsel for both the parties, in order to constitute the territorial jurisdiction, the whole or a part of cause of action must have arises within the territorial jurisdiction of the court, which would also have to be decided on the basis of the averments made in the complaint petition. This Court is of the considered view that the complaint has to be read as a whole, more particularly, the mere declaration made at the cause title of the complaint, cannot form the basis to decide the jurisdiction of a court. The averments made in the cause title page of the complaint is quoted herein below: Name and Address of the Complaint : Debasis Pattnaik, Nilakrushna Kutir, Mining Road, Keonjhar. At present residing At-Jyotivihar, P.O/P.S-Bidanasi, Dist: Cuttack. Place and Date of Occurrence : Cuttack Dtd.24.09.2010 when the cheque was issued by the accused. The averments made in the cause title page of the complaint is quoted herein below: Name and Address of the Complaint : Debasis Pattnaik, Nilakrushna Kutir, Mining Road, Keonjhar. At present residing At-Jyotivihar, P.O/P.S-Bidanasi, Dist: Cuttack. Place and Date of Occurrence : Cuttack Dtd.24.09.2010 when the cheque was issued by the accused. For better appreciation, it would be appropriate to quote name and address of the complainant mentioned in the demand notice (Annexure-2) issued by the counsel for the complainant, which reads as follows: CLIENT Debas is Pattnaik Nilakrushna Kutir Mining Road, Keonjhar-758001. 6. Apart from the above, no other pleading is available either in the complaint petition or in the initial statement to show that the complainant is a permanent resident of Cuttack. Therefore, I am of the considered view that the fact situation that arose in the case of Rajiv Modi (supra) is not similar to the facts of the present case and details of which are dealt with later. The decision of the Hon'ble Supreme Court in K. Bhaskaran (supra) has been considered by a later judgment in the case of Harman Electronics (P) Ltd. and Another Vs. National Panasonic India Ltd.. In paragraphs-9 and 11, the Supreme Court has observed as follows: 9. Reliance has been placed by both the learned Additional Sessions Judge as also the High Court on a decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan. This Court opined that the offence u/s 138 of the Act can be completed only with the concatenation of number of acts, namely, (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. It was opined that if 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 u/s 138 of the Act and the complainant would be at liberty to file a complaint petition at any of those places. As regards the requirements of giving a notice as also receipt thereof by the accused, it was stated: (SCC pp. 518-19, para 18) 18. As regards the requirements of giving a notice as also receipt thereof by the accused, it was stated: (SCC pp. 518-19, para 18) 18. On the part of the payee he has to make a demand by 'giving a notice' in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such 'giving', the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days 'of the receipt' of the said notice. It is, therefore, clear that 'giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address. The Court, however, refused to give a strict interpretation to the said provisions despite noticing Black's Law Dictionary in regard to the meaning of the terms "giving of notice" and "receiving of the notice" in the following terms" (K. Bhaskaran case, SCC p.519, paras 19-20) 19. In Black's Law Dictionary 'giving of notice' is distinguished from 'receiving of the notice' (vide p.621): 'A person notifies or gives notice to another by taking such steps as may be reasonable required to inform the other in the ordinary course, whether or not such other actually comes to know of it'. A person 'receives' a notice when it is duly delivered to him or at the place of his business. 20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. For the said purpose, a presumption was drawn as regards refusal to accept a notice. 11. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. For the said purpose, a presumption was drawn as regards refusal to accept a notice. 11. Indisputably, the parties had been carrying on business at Chandigarh. The head office of the respondent complainant may be at Delhi but it has a branch office at Chandigarh. It is not in dispute that the transactions were carried on only from Chandigarh. It is furthermore not in dispute that the cheque was issued and presented at Chandigarh. The complaint petition is totally silent as to whether the said cheque was presented at Delhi. As indicated hereinbefore, the learned counsel appearing on behalf of the respondent complainant contended that in fact the cheque was put in a drop box but as the payment was to be obtained from the Delhi branch, it was sent to Delhi. In support of the said contention, a purported certificate issued by Citibank NA has been enclosed with the counter-affidavit which reads as under: This is to confirm that M/s National Panasonic India (P) Ltd. (NPI) having registered office at AV-11, Community Centre, Safdarjung Enclave, New Delhi 110 029 are maintaining Current Account No. 2431009 with our Bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi 110 001 only and not at any other place in India including Chandigarh. Further confirmed that Citibank has provided the facility for collection of cheques/demand drafts from branches of NPI located at various places/cities in India. However, all amounts of cheques/demand drafts so collected on behalf of National Panasonic India (P) Ltd. are forwarded and debited/credited to the aforesaid Current Account No. 2431009 with our bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi 110 001. 7. In the case of Dalmia Cement (Bharat) Ltd. Vrs. Galaxy Traders & Agencies Ltd., (2201) 6 S.C.C. 463, the Hon'ble Supreme Court has observed that while "issuance of 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 completes. Giving of notice, therefore, cannot have any precedent over the service. 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 completes. Giving of notice, therefore, cannot have any precedent over the service. Therefore, the fact situation arises for consideration in this case is that the service of notice on the petitioner (accused) was at Keonjhar, therefore, the mere issuance of notice on behalf of the complainant (Opp. Party No. 1) by a lawyer situated at Cuttack and as held by the Hon'ble Supreme Court in the case of Harman Electronics (supra) the learned S.D.J.M. at Cuttack does not possess the necessary jurisdiction to entertain the same. 8. In the present case, both the complainant as well as the accused-petitioner reside in the district of Keonjhar. The alleged loan in cash was given by the complainant to the petitioner-accused at Keonjhar. The purported cheque given by the accused-petitioner to the complainant was at Keonjhar. The complainant presented the cheque for encashment at Keonjhar and the bank intimated about the dishonour of cheque at Keonjhar. The advocate notice on behalf of the complainant was issued by the lawyer located at Cuttack. The learned counsel for the opposite party-complainant orally submitted that the accused-petitioner had "handed over the cheque" to the complainant-opposite party at Cuttack. Learned counsel for the opposite party-complainant was called upon by the Court to point out any averment made either in the complaint petition under Annexure-1, demand notice under Annexure-2 and initial statement recorded under Annexure-3 to support his oral submission as noted hereinabove. Learned counsel failed to point out any such averment made in either of the Annexures 1, 2 and 3 and, therefore, the averments made by the learned counsel for the opposite party is held to be unsubstantiated. At best, the declaration made in the complaint petition by the opposite party, claiming to have resided temporarily at Cuttack and declaring the cause of action arose at Cuttack have to be held to be mere mis-declaration made solely for the purpose of attempting to bring the matter within the territorial jurisdiction of the learned S.D.J.M., Cuttack. At best, the declaration made in the complaint petition by the opposite party, claiming to have resided temporarily at Cuttack and declaring the cause of action arose at Cuttack have to be held to be mere mis-declaration made solely for the purpose of attempting to bring the matter within the territorial jurisdiction of the learned S.D.J.M., Cuttack. In the judgment of the Hon'ble Supreme Court in the case of Rajiv Modi (supra), it has been held that the issue of territorial jurisdiction of a court must be decided on the basis of the averments made in the complaint. The observation of the Hon'ble Supreme Court has to be understood to mean the complaint petition as a whole and an unsubstantiated mis-declaration cannot clothe the court with the jurisdiction, which it otherwise does not possess. Any declaration made in the body of the complaint petition by itself has to be substantiated by the facts pleaded in the complaint petition as well as the initial statement. In the case at hand, on a prima facie reading of the complaint petition (Annexure-1), demand notice (Annexure-2) and initial statement (Annexure-3) no averment exists there to justify and/or substantiate the territorial jurisdiction of the court of learned S.D.J.M., Cuttack. Hence, this Court is of the considered view that while no enquiry as to the correctness of the facts may be gone into, yet, the complaint petition, as a whole, has to be considered and not merely the declaration or mis-declaration made in the cause title page of the complaint petition. Further, while there is no averment in any of the documents under Annexures 1, 2 and 3 regarding the alleged handing over the cheque by the accused-petitioner to the complainant-opposite party at Cuttack, this Court is of the view that the declaration of temporary residence at Cuttack and further declaration that cause of action occurred at Cuttack as contained in the cause title page of the complaint petition are nothing else but mis-declarations not supported by any averments made on behalf of the complainant either in the complaint petition, demand notice or initial statement. Apart from the above, the only issue left for consideration is as to whether the learned S.D.J.M., Cuttack would have territorial jurisdiction in the facts of the present case, since the counsel for the complainant issued the demand notice to the accused-petitioner is based at Cuttack. Apart from the above, the only issue left for consideration is as to whether the learned S.D.J.M., Cuttack would have territorial jurisdiction in the facts of the present case, since the counsel for the complainant issued the demand notice to the accused-petitioner is based at Cuttack. This issue is no longer resintegra and has been settled by the Hon'ble Supreme Court in the case of Harman Electronics Private Limited and another (supra) wherein the Hon'ble Supreme Court has held that the mere "issue of notice" does not satisfy the requirement of Section 138 N.I. Act and such notice has to be "served" all cause of action to arise. Admittedly, notice was "served" on the accused-petitioner at Keonjhar and, therefore, no part of cause of action for initiating the complaint arose at Cuttack. Therefore, when the test as laid down by the Hon'ble Supreme Court in the case of K. Bhaskaran (supra) is applied, they are answered as follows: (i) The cheque was dishonoured at Joda at Keonjhar. (ii) The cheque was presented by the complainant to his bank located at Keonjhar. (iii) The complainant-bank at Keonjhar returned the cheque unpaid by drawee bank at Keonjhar. (iv) 07.11.2012 Notice in writing was given to the drawer of the cheque (petitioner) demanding payment of cheque amount on behalf of the complainant by the counsel located at Cuttack but such notice was "served/received" by the petitioner-accused at Keonjhar. Therefore, applying the judgment of the Hon'ble Supreme Court as laid down in the case of K. Bhaskaran (supra), this Court is of the considered view that no part of cause of action arose within the territorial jurisdiction of the learned S.D.J.M., Cuttack. 9. It is further submitted by the learned counsel for both the parties that the trial in the matter has progressed substantially and in the interest of both the parties, this Court in exercise of jurisdiction u/s 482 Cr.P.C. may direct transfer of the said case to a court at Keonjhar. Considering the submissions made, the District Judge, Cuttack is directed to transfer ICC Case No. 1062 of 2010 from the court of the J.M.F.C., Cuttack to the District Judge, Keonjhar. On receipt of the case record, the District Judge, Keonjhar shall allot the said case to a competent Magistrate, who shall proceed with the matter after issuing fresh notice to both the parties and complete the trial at the earliest. On receipt of the case record, the District Judge, Keonjhar shall allot the said case to a competent Magistrate, who shall proceed with the matter after issuing fresh notice to both the parties and complete the trial at the earliest. With the aforesaid observations and directions, the CRLMC is allowed and consequently interim orders stand vacated. No costs.