Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 558 (PAT)

Prafulla Kumar Tiwary v. State of Bihar

2013-04-26

ASHWANI KUMAR SINGH

body2013
ORDER The petitioner availed loan facility from Tata Motor Finance Limited (in short “the complainant”), a company incorporated under the provisions of Companies Act, 1956 and having its registered office at Mumbai vide loan no.5000157139 under the agreement executed by and between the complainant and the petitioner. The complainant granted loan facility to the petitioner on the terms and agreement set out in the said agreement. The petitioner had to pay the loan instalment under the agreement. He issued posted dated cheque no.196432 dated 2nd December, 2009 amounting to Rs.53091/- in favour of the complainant drawn on Central Bank of India towards the instalments due under the said agreement. The complainant presented the said cheque for encashment through its banker, HDFC Bank Ltd. The said cheque was dishonoured with endorsement “funds insufficient” vide bank memo dated 8th December, 2009. Thereafter, a legal notice dated 24th December, 2009, was dispatched through registered post with A/D by the complainant to the petitioner demanding payment of the sum of the dishonoured cheque being part of the dues of the complainant. The registered A/D packet came back with remark “absent” dated 19th January, 2010. After lapse of the stipulated period mentioned in the notice, the company filed complaint case no.2860/SS of 2010 before the Metropolitan Magistrate, 31st Court at Vikhroli, Mumbai. 2. It has been contended on behalf of the petitioner that the learned Magistrate concerned at Vikhroli, Mumbai has already taken cognizance of the offence and has issued summons to the petitioner. The petitioner has filed the instant application under Articles 226 and 227 of the Constitution of India seeking relief for quashing the aforesaid complaint case. The alternative prayer of the petitioner is that a writ in the nature of mandamus be issued directing the Magistrate concerned to transfer the case from Mumbai to Patna. 3. Mr. Gopal Prasad Roy, learned counsel for the petitioner submitted that the alleged offence, if any, was committed at Patna and, as such, the Vikhroli Court at Mumbai has no jurisdiction to try the offence. According to him, the agreement was made at the Patna Branch of the complainant, the cheque issued to the complainant was of the Central Bank of India, Boring Road Branch, Patna and the same was handed over to the Patna Branch of the complainant. 4. According to him, the agreement was made at the Patna Branch of the complainant, the cheque issued to the complainant was of the Central Bank of India, Boring Road Branch, Patna and the same was handed over to the Patna Branch of the complainant. 4. Learned counsel further submitted that admittedly no notice in terms of section 138 of the Negotiable Instrument Act, 1881 has ever been served upon the petitioner and, as such, the Vikhroli Court at Mumbai could not have taken cognizance of the offence. 5. On the other hand, Mr. Amresh Kumar Singh, learned counsel for the complainant, submitted that the application filed by the petitioner before this court is misconceived. The cheque, in question, issued by the petitioner was presented by the complainant for being credited in the HDFC Bank, Kanjur Marg Branch, Mumbai. An intimation regarding dishonour of the cheque was given to the complainant at Mumbai by the Kanjur Marg Branch of the HDFC Bank. A legal notice was sent to the petitioner by the Law Firm “Devi and Associates”, Mumbai and, as such, several parts of the cause of action had arisen at Mumbai. Hence, Vikhroli Court at Mumbai has committed no wrong in entertaining the complaint and proceeding with the same. 6. Having heard the rival submissions made on behalf of the parties, I find that a large number of events have taken place in Mumbai in respect of the allegations made in the complaint. The jurisdiction of the criminal courts in inquiries and trials has been dealt with in Chapter XIII of the Code of Criminal Procedure. I think it apt to reproduce Sections 177 and 178 of the Code of Criminal Procedure which are quoted herereinbelow: – “177. Ordinary place of inquiry and trial. – Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. 178. Place of inquiry or trial. I think it apt to reproduce Sections 177 and 178 of the Code of Criminal Procedure which are quoted herereinbelow: – “177. Ordinary place of inquiry and trial. – Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. 178. Place of inquiry or trial. – (a) When it is uncertain in which of several local areas an offence was committed, or (b) where an offence is committed partly in one local area and partly in another, or (c) where an offence is a continuing one, and continues to be committed in more local areas than one, or (d) where it 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. The word “ordinary” in Section 177 of the Code of Criminal Procedure indicates that the rule that every offence shall be tried by a court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle. 7. Section 178 of the Code of Criminal Procedure provides for the difficulty which may arise where there is conflict between different areas and there may be some doubt as to which particular Magistrate has jurisdiction to try the case. The section provides for four of the contingencies. The section lays down that in any of the above four contingencies the offence may be inquired into or try by a court having jurisdiction over any such local area. 8. In the present case, as noted above, there is no doubt that several parts of the cause of action had arisen at Mumbai and, as such, the court at Mumbai has the jurisdiction to entertain the complaint and try the offence. 9. Once I have held so, in case, the petitioner has any grievance regarding the legality or otherwise of any order passed by the Vikhroli Court at Mumbai, he can raise the same before the High Court having jurisdiction over the said court at Mumbai and not before any other High Court. 10. In the present case I am of the considered opinion that the remedy of the petitioner, if any, is before Mumbai High Court. This court can exercise its authority and jurisdiction under Article 227 of the Constitution of India over all courts and Tribunals within the State of Bihar. 10. In the present case I am of the considered opinion that the remedy of the petitioner, if any, is before Mumbai High Court. This court can exercise its authority and jurisdiction under Article 227 of the Constitution of India over all courts and Tribunals within the State of Bihar. The Vikhroli Court at Mumbai is certainly not under the jurisdiction of this court. 11. In that view of the matter, I do not find any merit in the present application. It is dismissed, accordingly.