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2012 DIGILAW 318 (BOM)

E. Gomathi v. Ketki Amit Thatte

2012-02-10

M.L.TAHALIYANI

body2012
Judgment Admitted. Heard finally by consent of the counsel for the parties. 2. The applicant is the accused in Summary Criminal Case No.5066/2009 pending on the file of learned Judicial Magistrate, First Class, 25th Court, Nagpur. The non-applicant is the complainant in the said case. 3. The applicant is facing trial for the offence punishable u/s. 138 of the Negotiable Instruments Act ( henceforth "the said Act" in short ) on the complaint made by the non-applicant. It is the case of non-applicant before the learned trial Magistrate that she is the proprietress of Kataline Industries having it s registered office at Survey No.25/2(A) at Shivpur (Bhuyari) village, Post: Dhamana, Nagpur-Amravati Highway, Nagpur. The said Proprietory concern has its administrative office at 37 Shankarnagar Nagpur-440 010. It is the case of the non-applicant that the business is being run from the said office situated at Shankarnagar, Nagpur. The non-applicant is engaged in supplying raw material like Thermo-plastic and other similar products. 4. It is alleged in the complaint that the applicant had placed order for the raw material with the complainant. During the course of business, the material was being supplied to the applicant by the non-applicant. The applicant had made payment of Rs.9,20,000/-and an amount of Rs.5,33,500/-was due from the applicant. The applicant had issued a cheque of Rs.3,60,000/-on 23rd August 2008 drawn on Federal Bank Chennai-17. The applicant had also issued one more cheque on 23rd August, 2008 drawn on the same Bank. Both the cheques were dishonoured by the Bankers of the applicant. The non-applicant, however, was assured by the applicant that the cheques would be honoured if deposited again. The non-applicant, therefore, deposited the cheque bearing No.659706 dated 23rd August 2008 with her Banker at Nagpur. It was again dishonoured by the Bank of the applicant. On receiving the intimation from the Bank on 17th February 2009, a notice was issued to the applicant by the non-applicant on 2nd March, 2009. Despite the alleged service of notice, the payment was not made. Therefore, a complaint has been lodged in the Court of Judicial Magistrate, First Class Nagpur for the offence punishable u/s. 138 of the said Act by the non-applicant against the applicant. Despite the alleged service of notice, the payment was not made. Therefore, a complaint has been lodged in the Court of Judicial Magistrate, First Class Nagpur for the offence punishable u/s. 138 of the said Act by the non-applicant against the applicant. The non-applicant prayed for issuance of process to the applicant for his appearance before the Court to answer the charge for the offences punishable u/s. 138 of the said Act and Sec.420 of the Indian Penal Code. After recording statement of the non-applicant on oath, the learned trial Magistrate, however, had issued process to answer the charge u/s. 138 of the said Act only. It is, therefore, clear that the learned Magistrate was not inclined to issue process for the offence punishable u/s 420 of the IPC. 5. After appearing before the learned trial Court, the applicant had moved the trial Court for dismissal of the complaint on the ground that the Nagpur Court had no jurisdiction to try the offence as the cheque was drawn on Federal Bank, Chennai No.2 and that the statutory notice was received by the applicant at Chennai. It is, thus, the case of the applicant before the trial Magistrate that none of the acts which might give cause of action to the non-applicant had occurred within the jurisdiction of Nagpur Court. 6. The non-applicant, on the other hand, had submitted that the transaction had taken place at Nagpur, the goods were supplied to the applicant from Nagpur, the cheque in question was issued to the non-applicant at Nagpur, the notice was issued to the applicant from Nagpur and that the applicant was expected to pay the amount at Nagpur. 7. As such, the dispute is regarding jurisdiction of the Court. The applicant contends that the Nagpur Court had no jurisdiction to entertain the complaint, whereas the contention of the non-applicant is that Nagpur Court is one of the Courts which had jurisdiction to try the complaint filed by the applicant. 8. Though a host of judgments have been cited by both the sides, the issue can be resolved by reference to the judgment of the Hon'ble Supreme Court in the matter of K. Bhaskaran vs. Sankaran Balan and another reported in (1999) 7 SCC 510 . 8. Though a host of judgments have been cited by both the sides, the issue can be resolved by reference to the judgment of the Hon'ble Supreme Court in the matter of K. Bhaskaran vs. Sankaran Balan and another reported in (1999) 7 SCC 510 . The Hon'ble Supreme Court, while dealing with the issue of territorial jurisdiction of the Court in cases u/s. 138 of the said Act has, at paragraphs 14,15 and 16 said thus:- "14. The offence under section 138 of the Act can be completed only with the concatenation of a number of acts. The 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. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence under section 138 of the Code. In this context, a reference to Section 178 (d) of the Code is useful. It is extracted below : (d) where the offence consists of several acts done in different local areas, "178. (a) to ( c) * * * it may be enquired 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 of those courts having jurisdiction over any of the local areas within the territorial limits of which any 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." 9. In other words, the complainant can choose any of those courts having jurisdiction over any of the local areas within the territorial limits of which any 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." 9. In the present case, the grounds on which the process is challenged by the applicant are as under :- (1) The cause of action could arise only at the place where the dishonour of cheque had taken place; (2) The cause of action could arise at the place where the Bank on which the cheque was drawn is situated; (3) The complainant's Bank at Nagpur was only an intermediary or presenting Bank and not the drawee Bank. 10. Let me deal with the third ground in the first place. The third ground of the applicant is acceptable inasmuch as Banker of the non-applicant at Nagpur were not the Bank on which the cheque was drawn. The cheque was obviously drawn on the Bank at Chennai Branch. As such, the drawer-Bank was situated at Chennai and not at Nagpur. 11. Now let me take the first ground of the applicant. The contention of the applicant that cause of action could arise only at the place where the dishonour of cheque had taken place cannot be accepted and needs to be dismissed summarily. The Hon'ble Supreme Court has stated in so many words that the complaint can be filed at any one of the five places mentioned in paragraph 14 of the said judgment which has been reproduced by me hereinabove. 12. The second ground also needs to be dismissed summarily for the reasons stated by me in the earlier paragraph. It is not denied by the applicant that the transaction had taken place at Nagpur; the goods were supplied to the applicant from Nagpur. It is also not denied that the cheque was received by the non-applicant at Nagpur. It is further not denied that the notice was also issued from Nagpur and the applicant was expected to make payment at Nagpur. 13. It is also not denied that the cheque was received by the non-applicant at Nagpur. It is further not denied that the notice was also issued from Nagpur and the applicant was expected to make payment at Nagpur. 13. Apart from what is stated in paragraphs 14, 15 and 16 of the judgment in the case of K. Bhaskaran (supra), the observations made by the Hon'ble Supreme Court at paragraph 11 are also equally important to be taken into consideration in the present set of facts. Paragraph 11 runs as under : "11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under Section 177 of the Code " every offence shall ordinarily be enquired 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 criterion 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." 14. It is, thus, clear that in a case under section 138 of the said Act, the place for the purpose of trial would depend upon 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. In the present case, it is not denied that the non-applicant carries on her business from Nagpur. 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. In the present case, it is not denied that the non-applicant carries on her business from Nagpur. The goods were delivered from Nagpur; the transaction has taken place at Nagpur and goods were also delivered form Nagpur; payments were expected at Nagpur and notice was also issued from Nagpur. As such, it is amply clear that though Chennai Court, being the drawee-Bank, also might try the present case, but that does not take away the jurisdiction of Nagpur Court. If the non-applicant has opted to file criminal complaint at Nagpur and on the basis of material on record, it is amply clear that the Nagpur Court has jurisdiction to try the complaint. I do not find any merit in the Application filed by the applicant who is accused in Summary Criminal Case No.5066/2009 pending in the Court of Judicial Magistrate, First Class, 25th Court, Nagpur. 15. In the result, the Application stands dismissed.