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2012 DIGILAW 968 (BOM)

Suresh Kumar Pritam Gurung v. Rajesh

2012-05-08

M.L.TAHALIYANI

body2012
JUDGMENT : M.L. Tahaliyani, J. 1. The applicant, who is complainant in Complaint Case No. 12641 of 2003, feels aggrieved by the order of the Judicial Magistrate, First Class, 5th Court, Chandrapur passed on 22nd October, 2010. The applicant had filed complaint case against the respondent for the offence punishable u/s 138 of the Negotiable Instruments Act at Chandrapur Court. The learned Magistrate took the view that Chandrapur Court had no territorial jurisdiction to entertain and try the complaint filed by the applicant and he, therefore, directed the complaint to be returned to the applicant for being presented before the Court having jurisdiction. It will be necessary to state the facts in brief to examine the order of the learned Magistrate as to whether the same is sustainable or otherwise. Briefly stated, the applicant has stated in his complaint that the respondent is his friend. The respondent was in need of money in the year 2001. The applicant had, therefore, given hand loan of Rs. 6,25,000/- to the respondent. The amount was to be returned within six months from the date of borrowing. The respondent, however, failed to make payment Ultimately, he had issued a cheque bearing No. 894018, dated 1st August. 2003, drawn on State Bank of India, Seminary Hills, Nagpur in the sum of Rs. 6,25,000/- in favour of the applicant. The applicant deposited the said cheque for clearance at Bank of India, Urja Nagar Branch, C.T.P.S., Chandrapur on 1st August, 2003. The cheque was dishonoured because the payment was stopped. Memo in respect of dishonour of cheque was received on 22nd August, 2003 and a statutory notice was issued to the respondent on 2nd December, 2003. As the amount was not paid within the period stipulated, a complaint alleging that the respondent had committed offence punishable u/s 138 of the Negotiable Instruments Act was filed in the Court of Judicial Magistrate, First Class. 2. After recording statement of the applicant on oath, a summon was issued to the respondent. It appears that an affidavit of evidence of the applicant and additional affidavits of his evidence have also been taken on record. It further appears that the cross-examination has not begun. The evidence of the applicant as P.W. No. 1 is completed on 28th March, 2006. It is on 28th January, 2010 i.e. after about four years the respondent had raised the issue of jurisdiction. 3. It further appears that the cross-examination has not begun. The evidence of the applicant as P.W. No. 1 is completed on 28th March, 2006. It is on 28th January, 2010 i.e. after about four years the respondent had raised the issue of jurisdiction. 3. Heard learned Counsel for the parties. 4. The learned Magistrate has considered the law laid down by the Supreme Court in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, AIR 1999 SC 3762 . After having considered the contents of paragraph 14 of the judgment and after having gone through the facts of the case before him, the learned Magistrate had come to following conclusion: (i) the Chandrapur Court of Judicial Magistrate First Class had no jurisdiction to entertain and try the complaint as; (a) the cheque was not drawn at Chandrapur; (b) the cheque was not presented to the Bank at Chandrapur; (c) the drawee Bank was not situated at Chandrapur; (d) notice in writing was not issued from Chandrapur; (e) the payment was not supposed to be made at Chandrapur. 5. Though the learned Magistrate has taken support of the judgment of the Hon'ble Supreme Court in the case of K. Bhaskaran (supra), he has mainly concentrated on paragraph 14 of the said judgment. Paragraph 14 of the said judgment runs as under: 14. The offence u/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. 6. The learned Magistrate failed to understand the import of contents of paragraph 14, because he did not go through the paragraphs 11 to 13 of the same judgment, which run as under: 11. We fail to comprehend as to how the trial Court could have round so regarding the jurisdictional question. 6. The learned Magistrate failed to understand the import of contents of paragraph 14, because he did not go through the paragraphs 11 to 13 of the same judgment, which run as under: 11. We fail to comprehend as to how the trial Court could have round so regarding the jurisdictional question. u/s 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 criteria to determine the place of offence. It must be remembered that offence u/s 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 u/s 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 'ordinary' 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. 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 enquired 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. It can be seen from paragraph 14 of the judgment that the Hon'ble Supreme Court has said that there are five components of the offence and one of the same is failure of the drawer to make payment within 15 days of the notice. In paragraph 11 of the said judgment it is said that: 11. 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. In the same judgment the Hon'ble Supreme Court in paragraph 16 has said that: 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 u/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. 7. As already stated the place where the failure to make payment has occasioned could also be a place of the offence and the Magistrate having jurisdiction over that place can entertain the complaint. The Hon'ble Supreme Court has also said that the place where the payee resides also could be a place where the complaint u/s 138 of the Negotiable Instruments Act could be lodged. The Hon'ble Supreme Court has also said that the place where the payee resides also could be a place where the complaint u/s 138 of the Negotiable Instruments Act could be lodged. This view has also been taken by Division Bench of this Court while interpreting the judgment of the Hon'ble Supreme Court in the case of Harman Electronics (P) Ltd. and Another Vs. National Panasonic India Ltd., AIR 2009 SC 1168 . The Division Bench of this Court in the case of Preeha S. Babu v. Voltas Ltd., 2010 All. MR (Cri) 1025 at paragraph 18 has said. ...The Supreme Court in effect affirmed what it had said in K. Bhaskaran that Court within whose jurisdiction the cheque is presented and in whose jurisdiction there is failure to make payment within 15 days of the receipt of the notice can have jurisdiction to try the offence u/s 138 of the N.I. Act. 8. In the present case, it is not disputed that the applicant/complainant ordinarily resides at Chandrapur. Though the notice was issued from the office of the Advocate who is practicing at Nagpur it was issued on behalf of the applicant. It need not be stated that the notices are always issued by the Advocates on the instructions of their clients. In the present case, though the notice was dispatched from the office of Advocate at Nagpur, it cannot be said that it was issued from Nagpur. If the applicant is ordinarily residing at Chandrapur and if he has chosen to issue notice by engaging a lawyer from other place it cannot be said that the notice was issued from the place where the office of lawyer is situated. It is to be borne in mind that the payment is always expected to be made to the person on behalf of whom the notice is issued. 9. In the case in hand money was given by way of hand loan by the applicant who is ordinarily staying at Chandrapur. Therefore, payment was expected Chandrapur. The respondent failed to make payment and after repeated demands issued a cheque which was dishonoured. Though the notice was issued from the office of Advocate practising at Nagpur, the payment was expected to be made to the applicant at Chandrapur. Therefore, failure of the drawer to make payment within 15 days of receipt of notice had occasioned at Chandrapur. The respondent failed to make payment and after repeated demands issued a cheque which was dishonoured. Though the notice was issued from the office of Advocate practising at Nagpur, the payment was expected to be made to the applicant at Chandrapur. Therefore, failure of the drawer to make payment within 15 days of receipt of notice had occasioned at Chandrapur. It, therefore, follows that Chandrapur Court had jurisdiction to entertain and try the offence. In view of this, the order of the learned Magistrate, returning the complaint, is not sustainable and needs to be set aside. The Criminal Revision Application is allowed. Order dated 22nd October, 2010 directing return of the complaint to the applicant is set aside. The complaint be restored to file and be heard as expeditiously as possible. Interim stay, if any, stands vacated. Parties to appear before the trial Court on 20th June, 2012.