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Calcutta High Court · body

2012 DIGILAW 82 (CAL)

East Coast Tradefin Ltd. v. .

2012-01-19

KANCHAN CHAKRABORTY

body2012
JUDGMENT 1. The legality, validity and propriety of the order dated 28.3.2008 passed by the learned Metropolitan Magistrate, 11th Court, Calcutta in C.1980 of 2007 under Section 138 of the Negotiable Instruments Act whereby the learned Court found that it has no jurisdiction to try the present case and discharged the opposite party, has been challenged in this revisional application by the defacto complainant mainly on the ground that the learned Court failed to consider that he could entertain the case under Section 138 of the N. I. Act and the case was maintainable in its Court because the demand notice was sent from an area falls within its jurisdiction; 2. A short reference to the back drop behind this revisional application is required to be given. 3. The petitioner/complainant filed one case under Section 138 of the Negotiable Instruments Act against the opposite parties herein who have failed to pay the cheque amount in view of the demand notice within the statutory period. The learned Trial Court issued process upon taking cognizance and on appearance, the opposite party challenged the maintainability of the case in the Court of the learned Magistrate on the ground of lack of territorial jurisdiction. The learned Court upon consideration of the fact found that sending of notice of demand simplicitor does not attract cause of action and as a consequence the territorial jurisdiction of the Court, in view of the decision of the learned Single Judge of this Court in Subrata Munsi Vs. ICICI Bank Ltd. & State of West Bengal, reported in 2007 (2) CHN 405 . The learned Trial Court discharged the opposite party with a direction to return the petition to the learned Advocate for presentation before the proper Court having territorial jurisdiction. 4. The only question which appears to be germane in this revisional application is whether or not service of demand notice simplicitor attracts jurisdiction of a particular Court under Section 138 of the Negotiable Instruments Act. 5. Mr. Ayan Bhattacharyya, learned Counsel appearing on behalf of the petitioner/defacto complainant takes me to the off quoted decision of the Hon’ble Apex Court in K. Bhaskaran Vs. 5. Mr. Ayan Bhattacharyya, learned Counsel appearing on behalf of the petitioner/defacto complainant takes me to the off quoted decision of the Hon’ble Apex Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr., reported in A.I.R. 1999 SC 3762 and contends that the Apex Court in that decision referred to above in paragraphs 14 and 15 made it abundantly clear that giving notice in writing to the drawer of the cheque demanding payment of cheque amount is an act which attracts jurisdiction of a particular Court of the area wherefrom the “giving of notice” has been done. 6. Mr. Bhattacharyya, in support of his contention also refers to the decision of the Hon’ble Apex Court in Smt. Shamshad Begum Vs. B. Mohammed, reported in A.I.R. 2009 SC 1355 wherein it has been held that jurisdiction of a particular Court is attracted if demand notice in writing to the drawer of the cheque was sent from the place that Court is having jurisdiction. 7. Mr. Bhattacharyya, distinguishes the decision of the Hon’ble Court in the case of M/s. Harman Electronics (P) Ltd. & Anr. Vs. M/s. National Panasonic India Ltd., reported in A.I.R. 2009 SC 1168 and contends that the decision in M/s. Harman Electronics (P) Ltd. (Supra) was passed on 12.12.2008, i.e., after passing of decision in Smt. Shamshad Begum’s case (Supra) dated 3.11.2008 and while the decision in M/s. Harman Electronics (P) Ltd. (Supra) was passed, the view of the Hon’ble Apex Court in Smt. Shamshad Begum’s case (Supra) was not taken into consideration. That being the fact, in view of the decision in Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors. reported in A.I.R. 2011 SC 312, the decision in M/s. Harman Electronics (P) Ltd. (Supra) which was passed by a coordinate Bench of the Apex Court is to be categorised as per incuriam. Mr. Bhattacharyya also refers to the another decision of the Hon’ble Apex Court in Prakash Amichand Shah Vs. State of Gujarat & Ors., reported in A.I.R. 1986 SC 468 in support of his contention. 8. Mr. Arindam Jana, learned Counsel appearing on behalf of the opposite party contends that the decision of the Hon’ble Apex Court in M/s. Harman Electronics (P) Ltd. (Supra) has set the question at rest. State of Gujarat & Ors., reported in A.I.R. 1986 SC 468 in support of his contention. 8. Mr. Arindam Jana, learned Counsel appearing on behalf of the opposite party contends that the decision of the Hon’ble Apex Court in M/s. Harman Electronics (P) Ltd. (Supra) has set the question at rest. The Hon’ble Apex Court while taken the decision in M/s. Harman Electronics (P) Ltd. (Supra), considered the view taken in K. Bhaskaran’s case (Supra). The Hon’ble Apex Court discussed the view taken in K. Bhaskaran’s case (Supra) elaborately and came to a finding that sending of demand notice from a particular place wherein other ingredients constituting an offence under Section 138 of the Negotiable Instruments Act are done at a different place, does not provide territorial jurisdiction with the Court of that particular place because “giving of notice” does not create cause of action under Section 138 of the N. I. Act --- it is receiving of notice and failure to make payment upon receiving of the notice gives rise to cause of action. 9. The position has been elaborately dealt with by a learned Single Judge of this Court in the case of Arani Murali Vs. State of West Bengal & Anr., reported in E. Cr. N. 2010 (1) (Cal) 941. The learned Single Judge was pleased to take into consideration the decisions of K. Bhaskaran’s case (Supra) and Smt. Shamshad Begum’s case (supra) as well. 10. In the instant case, everything was done, i.e., a) drawing of the cheque; b) presentation of the cheque to the Bank; c) returning the cheque unpaid by the drawee bank; d) receiving of the demand notice in writing by the drawer of the cheque and e) failure of the drawer to make payment within 15 days from the receipt of the demand notice, at a place falling within the jurisdiction of Court situated in the District of 24-Paraganas (South) at Alipore. The demand notice was sent by Advocate having its office within the territorial jurisdiction of Metropolitan Magistrate Court at Calcutta and it was sent through General Post Office, Calcutta. The letter was addressed to the drawer who is residing within the jurisdiction of the Court situated under the District of 24-Paraganas, South at Alipore. The demand notice was sent by Advocate having its office within the territorial jurisdiction of Metropolitan Magistrate Court at Calcutta and it was sent through General Post Office, Calcutta. The letter was addressed to the drawer who is residing within the jurisdiction of the Court situated under the District of 24-Paraganas, South at Alipore. The notice was sent on behalf of the defacto complainant who is a man of an area comes within the territorial jurisdiction of the Court of the District 24-Paraganas, South at Alipore. The cheques in question were placed in a bank and returned by the Bank situated within the territorial jurisdiction of the Court at Alipore. 11. Therefore, in fact and in substance, no act constituting an offence has been done within the jurisdiction of Metropolitan Magistrate Court, excepting sending the notice through the General Post Office situated within the Metropolitan area of Calcutta city. The question is whether this fact simplicitor gives jurisdiction to the Metropolitan Magistrate to entertain the petition of complaint or not. 12. The learned Trial Court found that it has got no jurisdiction because of the view taken by this Court in Subrata Munsi’s case (Supra). 13. On careful perusal of the decision of the Hon’ble Apex Court in K. Bhaskaran’s case (Supra), it can well be understood that no question as whether place of giving notice gives rise to jurisdiction of a particular Court of a particular place was raised before the Hon’ble Apex Court. The main question before the Hon’ble Court was presumption of service of notice and application of Section 27 of the General Clauses Act, 1897 in the matter of service of notice. While discussing that question, the Hon’ble Court also considered and distinguished “giving” of notice and “receipt” of the notice. The Hon’ble Court came to a finding that “giving of 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 in the correct address. No doubt Section 138 of the Negotiable Instruments Act does not require that the notice should be given only by post. “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 in the correct address. No doubt Section 138 of the Negotiable Instruments Act does not require that the notice should be given only by post. Nonetheless, the principles incorporated in Section 27 of the General Clauses Act can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. It was observed by the Apex Court further that rising of question of jurisdiction of Magistrate Court is an idle exercise because it is difficult to fix up any particular locality as place of occurrence for an offence under Section 138 of the N. I. Act. In course of discussions, the Hon’ble Apex Court set out the following acts which are components of the said offence; “1) Drawing of the cehque, 2) Presentation of the cheue 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.” 14. It has further been observed as a continuation of the same, “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 if 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.” 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.” 15. In Smt. Shamshad Begum’s case (Supra), the Hon’ble Apex Court had taken a view that if notice in writing to the drawer of the cheque demanding payment of cheque amount was sent from a particular place, Court that place is having jurisdiction to try the case. That view was taken by the Hon’ble Court basing on the decision in K. Bhaskaran’s case (Supra). 16. In M/s. Harman Electronics (P) Ltd. (Supra), the question categorically raised before the Court was whether issuance of notice simplicitor itself gives rise to cause of action and provides territorial jurisdiction to a particular Court. The Hon’ble Court came to a conclusion that issuance of notice itself does not give rise to cause of action because cause of action rises only on service of the notice and giving of notice have no precedent of over services of notice. In the case of M/s. Harman Electronics (P) Ltd. (Supra), the Hon’ble Court elaborately discussed all the views including the view of the Apex Court in K. Bhaskaran’s case (Supra). 17. In M. Natarajan Vs. State by Inspector of Police, SPE, CBI, ACB, Chennai, reported in 2008 (3) SCC (Cri) 507, it was held; “…..Once this Court had noticed the observations made in Hira Lal case and then narrowed the width of the observations expressed in para 27 thereof, we must proceed in terms of the subsequent judgment where the earlier judgment was taken note of.” 18. The Hon’ble Supreme Court, in a later point of time after taking into consideration its earlier decisions, has practically narrowed the scope of invoking territorial jurisdiction by a particular Court basing on sending of notice simplicitor. That was not done in Smt. Shamshad Begum’s case (Supra). Therefore, the decision in M. Natarajan’s case (Supra), is squarely applicable in the matter of accepting the view passed by co-ordinate Bench. Herein, the decision of the Hon’ble Court in M/s. Harman Electronics (P) Ltd. (Supra) appears to be more applicable in view of the facts and circumstances of the case. Therefore, the decision in M. Natarajan’s case (Supra), is squarely applicable in the matter of accepting the view passed by co-ordinate Bench. Herein, the decision of the Hon’ble Court in M/s. Harman Electronics (P) Ltd. (Supra) appears to be more applicable in view of the facts and circumstances of the case. The learned Single Judge of this Court in Arani Murali’s case (Supra) after taking all the abovementioned decisions of the Apex Court came to a finding that no Court has territorial jurisdiction to hold a trial of an offence punishable under Section 138 of the N. I. Act merely because the notice was sent from a place situated within its territorial limit. Example can be drawn also from Subrata Munsi’s case (Supra). 19. In view of the discussions above, I do not concede the proposition of Mr. Bhattacharyya. The order impugned is not suffering from any illegality, incorrectness and impropriety. The order is not required to be interfered with. 20. However, the petitioner herein is not precluded to file a complaint before the Court having territorial jurisdiction at Alipore, 24-Paraganas, South on the selfsame cause of action. This Court gives liberty to the petitioner/complainant to file a petition of complaint against the opposite party afresh within one month from the date of receipt of the certified copy of this order in the Court of the learned Chief Judicial Magistrate, Alipore, 24-Paraganas, South. 21. This revisional application is, thus, disposed of. 22. Urgent Photostat certified copy of this order, if applied for, be given to the learned Advocates of the parties upon compliance of necessary formalities.