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2014 DIGILAW 209 (HP)

Vikas Sharma v. Raj Kumar Sharma

2014-03-14

DHARAM CHAND CHAUDHARY

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Judgment Dharam Chand Chaudhary, J. 1. This judgment shall dispose of the present application under Section 5 of the Limitation Act for condonation of delay, as occurred in filing the main revision petition. 2. Challenge in the main revision petition is to an order, passed by learned Judicial Magistrate 1 Class, Court No.1, Kasauli, on 29.1.2013in an application registered as CMA No.22/04 of 2013, preferred by the petitioner, hereinafter referred to as “the accused”, with a prayer to return the complaint under Section 138 of the Negotiable Instruments Act, filed against him by the respondent, hereinafter referred to as “the complainant”, on the ground that since both the parties are residents of Punjab and Haryanba, respectively and the drawee bank is located at Panchkulla (Haryana), therefore, the Court below has no territorial jurisdiction to entertain and try the same. 3. Learned trial Magistrate has considered the application and dismissed the same, vide order impugned in the main revision petition, which is time barred and sought to be entertained on condonation of delay. 4. The delay of more than one year has been sought to be condoned on the ground, inter-alia, that on receipt of the information qua dismissal of the application, the accused went to Kasauli to meet his counsel there, who advised to challenge the order in the High Court. Being not aware about the legal provisions and on account of domestic problems, he could not contact any Advocate at Shimla immediately. It is due to this reason, the delay allegedly occurred in filing the main revision petition. 5. Having gone through the impugned order and the record available at this stage as well as taking into consideration the submission made by learned counsel, I am of the view that sufficient cause has not been shown for condonation of an inordinate delay of more than one year, as occurred in filing the main revision petition. The only ground that the accused was not aware about the legal provisions is neither valid nor plausible for the reason that ignorance of law is no excuse. 6. On merits also, the proceedings in the complaint under Section 138 of the Act admittedly are in advanced stage, as according to leaned counsel, the case is at the stage of recording of evidence. 6. On merits also, the proceedings in the complaint under Section 138 of the Act admittedly are in advanced stage, as according to leaned counsel, the case is at the stage of recording of evidence. Above all, vide order impugned in the main petition, the application filed by the accused with a prayer to return the complaint on the ground of territorial jurisdiction has been rejected. The impugned order on the face of it reveals that the same is reasoned and speaking. This Court finds no error apparent on the face of the record nor the Court below can be said to have committed any illegalit y or irregularity while passing the impugned order. 7. Admittedly, the disputed cheque Ext. CW1/B was presented for encashment in Parwanoo Branch of Baghat Urban Cooperatie Bank. The said bank forwarded the same to Punjab National Bank, Panchkulla, the drawee bank. It was, howev er, returned vide a memo. Ext. CW1/C having been dishonoured. The cheque, therefore, was returned vide memo. CW1/D to the complainant at Parwanoo. Not only this, but on receipt of the cheque, the complainant even served the accused with statutory notice, issued by his counsel Shri Rajiv Garg, Advocate at Solan. Such material available on record itself speaks in plenty that the Court at Kasauli has the jurisdiction to entertain and try the complaint. 8. Learned trial Magistrate has also taken into consideration the law laid down by the Apex Court by way of various judicial pronouncement on the subject. As a matter of fact, the ratio of the judgment of Hon’ble Apex Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another, (1999) 7 SCC 510 , clinches the point in controversy, because in view of this judgment in order to constitute the offence punishable under Section 138 of the Act, following five acts are essentially required to be pleaded and proved: “(i) Drawing of the cheque. (ii) Return of the cheque unpaid by the drawee bank. (iii) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount. (iv) Failure of the drawer to make payment within 15 days of the receipt of the notice.” 9. The jurisdiction to entertain and try the complaint under the Act was vested with the Court within whose jurisdiction any of such acts has taken place. (iv) Failure of the drawer to make payment within 15 days of the receipt of the notice.” 9. The jurisdiction to entertain and try the complaint under the Act was vested with the Court within whose jurisdiction any of such acts has taken place. Here the cheque was presented for encashment in Parwanoo branch of Baghat Urban Cooperative Bank and the same was returned by the same bank at Parwanoo on account of being dishonoured. Therefore, in view of the ratio of the judgment of the Apex Court in K. Bhaskaran’s case supra, it is the Court of Judicial Magistrate, Kasauli, which has the jurisdiction to entertain and try the complaint. Therefore, on merits also, no case is made out warranting any interference with the order impugned in the main revision petition. I, therefore, dismiss the present application. As a consequence thereof, the main revision petition, which is time barred, also stands disposed of, with pending applications, if any.