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2014 DIGILAW 4021 (MAD)

P. Soundararajan v. Arputham Enterprises

2014-10-28

B.RAJENDRAN

body2014
Judgment 1. The accused in C.C. No. 23 of 2007 on the file the learned Judicial Magistrate, Ambattur is the revision petitioner in this Criminal Revision Case. 2. For the sake of convenience, the parties shall be referred to as “complainant” and “accused” as has been arrayed before the trial court. 3. The complainant/respondent herein, through her power of attorney agent/husband, has filed the complaint under Section 138 of the Negotiable Instruments Act complaining that the accused and his wife Sheeba have borrowed money as hand loan on several occasions for their urgent expenses and for repayment of the loan amount, the accused has handed over a cheque and promisory note in acknowledgment of the debt. As the accused did not repay the loan amount despite several demands made by the complainant, finally, the accused issued a consolidated cheque bearing No. 132177 dated 01.06.2006 for a total sum of Rs.4,00,000/- drawn on Indian Overseas Bank, Gummudipoondi Branch in favour of the complainant. Prior to issuing the cheque, the accused had given a letter of undertaking dated 01.12.2005 undertaking to pay the amount payable by him as also the debt payable by his wife. According to the complainant, the accused assured him that the cheque, on presentation, will be honoured as there was sufficient amount in his account to honour it. However, when the complainant presented the cheque in question for clearance on 02.11.2006 with his bankers Indian Bank, Jawahar Nagar Branch, it was dishonoured on the ground “referred to drawer”. As the cheque was dishonoured, the complainant issued a statutory notice dated 10.12.2006 calling upon the accused to pay the cheque amount. Though the notice was acknowledged by the accused, he has neither issued a reply notice or paid the cheque amount. Therefore, the complainant, through her power of attorney agent, has filed the complaint under Section 138 and 142 of The Negotiable Instruments Act. 4. The accused contested the complaint filed by complainant. During the course of trial, on behalf of the complainant, the husband of the complainant Tr. P. Venkatesan was examined as PW1 besides two other witnesses were examined as PWs 2 and 3. Exs. P1 to P33 were marked on behalf of the complainant. On behalf of the accused one Mrs. Manjula was examined as DW1, the wife of the accused Mrs. V.P. Sheeba was examined as DW2 and the accused himself was examined as DW3. P. Venkatesan was examined as PW1 besides two other witnesses were examined as PWs 2 and 3. Exs. P1 to P33 were marked on behalf of the complainant. On behalf of the accused one Mrs. Manjula was examined as DW1, the wife of the accused Mrs. V.P. Sheeba was examined as DW2 and the accused himself was examined as DW3. On behalf of the accused, Exs. D1 to D9 have been marked. 5. The trial court, on appreciation of the oral and documentary evidence, found the accused guilty of the offence punishable under Section 138 and 142 of the Negotiable Instruments Act and convicted and sentenced him to undergo simple imprisonment for a period of six months. The accused was also directed to pay compensation of Rs.4,00,000/- being the cheque amount under Section 357 of Cr.P.C. as fine. On deposit of the amount, the complainant was permitted to collect the cheque amount as compensation as contemplated under Sections 431 and 421 of Cr.P.C. 6. As against the judgment of conviction, the accused filed Criminal Appeal No.16 of 2012, unsuccessfully, inasmuch as the appellate Court confirmed the judgment of conviction passed by the trial court by the judgment dated 30.10.2012. As against the same, the accused is before this Court with this Criminal Revision Case. 7. The learned counsel appearing for the accused would mainly contend that even as per the admission of the complainant, the accused has borrowed only a sum of Rs.1,10,000/- whereas the cheque in question was made to be issued by the accused for a sum of Rs.4,00,000/-. The alleged borrowal of amount by the wife of the accused will not make the accused liable to pay the same in the cheque in question. The theorey put forward by the complainant that the consolidated cheque for Rs.4,00,000/- was issued by the accused only for discharge of the loan amount borrowed by him has not been proved. According to the complainant, the cheque in question was alleged to have been issued by the accused for the various amount borrowed by him and his wife, but there was no evidence to show that payment of money, especially a sum of Rs.60,000/-said to have been paid in cash. This was also duly denied by PW2, wife of the accused in her cross-examination stating that the sum of Rs.60,000/-was never paid in cash. This was also duly denied by PW2, wife of the accused in her cross-examination stating that the sum of Rs.60,000/-was never paid in cash. In any event, it is for the complainant to prove that the accused owe a sum of Rs.4,00,000/-and for discharge of the same, the cheque in question was issued. The complainant miserably failed to prove the contra and therefore the Courts below are not correct in convicting and sentencing the accused. The learned counsel for the accused further argued that Ex.P16 is the alleged letter of undertaking given by the accused. The said letter of undertaking has been obtained from the accused by threat, duress and coercion by one Mrs. Asha Kumar, who is the friend of the complainant and therefore, such letter of undertaking will not bind the accused in any manner. 8. According to the counsel for the accused, the cheque in question was issued towards chit transaction and it was not issued for discharge of legally acceptable debt. Such cheques issued by the accused have been misused and abused by the complainant for instituting the present Criminal case. It is further argued that even though the complainant has gone on record by stating that the amount borrowed by the accused and his wife have been duly reflected in the income tax statements produced by him, the complainant did not file any such documentary evidence before the trial court. Therefore, both the courts below ought to have drawn an adverse inference against the complainant for non-production of the income tax statements by the complainant, but failed to do so. The instant complaint has been given against the accused only due to personal motives. The complainant has already given a complaint against the accused before the Economic Offence Wing officials. This could be substantiated by the fact that the three cheques said to have been issued by the accused and his wife i.e., Exs. P2, P11 and P17, being the cheque in question, were not voluntarily signed by the accused. Rather, in all the three cheques, except the signature, all the other details were type written. This would only indicate that the cheque in question was not issued for any legally enforceable debt or liability and the complaint is not maintainable under law. P2, P11 and P17, being the cheque in question, were not voluntarily signed by the accused. Rather, in all the three cheques, except the signature, all the other details were type written. This would only indicate that the cheque in question was not issued for any legally enforceable debt or liability and the complaint is not maintainable under law. In fact, the accused was targetted by a group of persons at the instance of the complainant and as many as 14 cases have been filed against him. Many of the cases filed against the accused have been split up and this would indicate the motive of the complainant in filing the present case. 9. As regards the jurisdiction of the trial court to entertain the complaint, earlier, the accused along with his wife have filed Crl.O.P. No. 5935 of 2013 before this Court seeking to quash the criminal proceedings pending against them in C.C. No. 1420 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai. In that case also, the very same jurisdictional point was raised and this Court in the order dated 16.07.2014, relying on the decision of the Honourable Supreme Court in the case of Nishant Aggarwal vs. Kailash Kumar Sharma (2013) 10 SCC 72 held that the address of the office of the counsel for the complainant cannot form the basis for invoking the jurisdiction of the Criminal Court. The territorial jurisdiction of the Criminal Court can be determined with that of the address of the complainant on whose behalf the notice was issued. Therefore, it is contended on behalf of the accused that the trial court has no jurisdiction to try the complainant inasmuch as the complaint was filed in an incompetent Court on the basis of the address of the counsel for the complainant who issued the statutory notice. 10. Lastly, the learned counsel for the accused would contend that the complainant, in order to prove the contents of the complaint, did not examine himself. It is only the husband of the complainant who examined himself as PW1 before the trial Court. The husband of the complainant do not have any specific knowledge about the transaction, which is reflected in his own deposition. PW1 has no direct knowledge or information about the transaction between the complainant and the accused which was also admitted by him. It is only the husband of the complainant who examined himself as PW1 before the trial Court. The husband of the complainant do not have any specific knowledge about the transaction, which is reflected in his own deposition. PW1 has no direct knowledge or information about the transaction between the complainant and the accused which was also admitted by him. While so, the oral evidence of PW1 is inadmissible in evidence and it cannot be taken into account to prove the complaint filed by the complainant. In this context, the learned counsel for the accused relied on the decision of the Honourable Supreme Court in the case of (A.C. Narayanan and another vs. State of Maharashtra and another) 2013 (5) CTC 560 for the proposition that when there is no assertion in the complaint about the role played by the power of attorney holder, such power of attorney holder cannot be examined and if examined, his deposition need not be relied on by the Court for arriving at any conclusion. Relying on the aforesaid decision of the Honourable Supreme Court, the learned counsel appearing for the accused prayed for allowing the Criminal Revision Case. 11. On the contrary, the learned counsel appearing for the respondent/ complainant would contend that the accused admitted that he and his wife have borrowed money from the complainant. The complainant did not choose to give a reply to the statutory notice issued by the complainant. DW2, who is the wife of the accused, has admitted in her cross-examination regarding the various amount borrowed by her. The accused is a Government servant employed in SIPCOT and he had conducted unauthorised chit, collected various amount from the subscribers and committed default in repayment of the chit amount. In this context, the complainant along with other subscribers who have been deceived by the accused have given complaint to the Economic Offence Wing Officials. Upon investigation, charge sheet was filed before the TANPID Court. During the course of trial, the accused repaid the amount to the subscribers and therefore the complaint was closed. In any event, the accused admitted his liability by executing Ex.P16, letter of undertaking wherein he had specifically undertook to repay the money due to the complainant. Ex.P16 was executed voluntarily by the accused. During the course of trial, the accused repaid the amount to the subscribers and therefore the complaint was closed. In any event, the accused admitted his liability by executing Ex.P16, letter of undertaking wherein he had specifically undertook to repay the money due to the complainant. Ex.P16 was executed voluntarily by the accused. Had it been made to be written as alleged by the complainant, he ought to have denied the same either by giving any complaint or by giving reply to the statutory notice sent by the complainant, but he failed to do so. In Ex.P16, the sum of Rs.2,40,000/-due and payable by the wife of the accused has also been admitted. Therefore, it is futile on the part of the accused to contend that the cheque in question was not issued for any legally enforceable debt and liability. Both the courts below have scrutinised the oral as well as documentary evidence made available by the complainant as well as the accused, and came to a correct conclusion and it need not be interfered with by this Court. 12. The learned counsel for the complainant would contend that the cheque in question was handed over by the accused in the presence of Tr. N. Ramalingam and Tr. V. Dayalan and they were examined as PWs 2 and 3 on the side of the complainant. The accused also did not dispute the fact that he had handed over the cheque in question. However, the accused would only contend that Ex.P16, letter of undertaking as well as the cheque in question have been forcefully obtained from him at the instance of the complainant and one Ms. Asha Kumar, for which, there is no documentary evidence filed by the accused. On the contrary, the accused, being a Government servant, has conducted unauthorised chit by soliciting subscription from the subscribers in which the complainant, Asha Kumar and others have joined. As the accused did not repay the matured chit amount, they have given a complaint against him before the officials of the Economic Offence Wing based on which the case in Crime Nos. 5 and 6 of 2005 came to be registered against him. On the basis of the said complaints, the accused was arrested and remanded to judicial custody. The accused was under incarceration for more than 71 days. 5 and 6 of 2005 came to be registered against him. On the basis of the said complaints, the accused was arrested and remanded to judicial custody. The accused was under incarceration for more than 71 days. In view of his arrest and consequential incarceration, the accused was dealt with by his employer-SIPCOT departmentally and by an order dated 07.05.2012, the accused was removed from service. 13. As regards the jurisdiction of the trial court to entertain the complaint, the learned counsel for the complainant would contend that at the time when the complaint was filed it was well within the jurisdiction of the trial court and it cannot be raised by the accused before this Court. The courts below, after analysing the entire evidence have convicted and sentenced the accused under Section 138 of the Negotiable Instruments Act and it calls for no interference by this Court. 14. I heard the counsel for both sides and perused the materials placed on record. The main argument putforth by the learned counsel for the accused is that the court below failed to consider that even as per the admission of the complainant, the amount was borrowed by the accused and his wife as hand loan and only towards repayment of the same, the cheque in question was issued. 15. When we examine the evidence available on record, the complainant would contend that apart from receiving amount by way of cheque, a sum of Rs.60,000/-was paid by way of cash. Thus, according to the complainant, a total sum of Rs.1,10,000/-was paid to the accused and Rs.2,40,000/- was paid to the wife of the accused separately by way of three cheques. Earlier, cheques have been issued by the accused and his wife for repayment of the amount, but the cheques have been dishonoured. After negotiation, the accused, accepting and acknowledging the debt of himself and his wife has issued the cheque in question for Rs.4,00,000/-/, including the amount of Rs.2,40,000/- owed by his wife. The accused also undertook to repay the cheque amount by means of a letter of undertaking and this would indicate that the cheque in question was issued for a legally enforceable debt and liability. The explanation offered by the accused is that the cheque in question has not been issued for a legally enforceable debt or liability and the cheque in question was issued towards chit transaction. The explanation offered by the accused is that the cheque in question has not been issued for a legally enforceable debt or liability and the cheque in question was issued towards chit transaction. By abusing and misusing the cheque in question, the complainant has filed the present case. 16. According to the accused, in respect of chit transaction, there were some dispute. In this context, various complaints have been given against the accused purportedly at the instance of the complainant herein. The complaints have been given by the complainant, one Ms. Asha Kumar and others against the accused for non-payment of chit amount. Therefore, it is clear that there was some chit transaction between the complainant and the accused. It is also to be pointed out that when a cheque is issued for a specified sum, there should have been some consideration for the amount mentioned thereof. From the evidence let in by both sides, it is clear that the cheque was issued towards the amount alleged to have been received by the accused and his wife and there was no payment made by the complainant or received by the accused to the tune of Rs.4,00,000/- being the cheque amount. Therefore, if at all, the petitioner is liable for the amount borrowed by him and not for the entire amount of Rs.4,00,000/-alleged by the complainant, including the amount borrowed by his wife. This is more so that the wife of the accused is not a signatory to the cheque nor the cheque was issued in an account held jointly by the accused and his wife. Even as per the admission of the complainant, the wife of the accused has given a separate cheque dated 12.09.2005 for Rs.2,40,000/-and on its presentation, it was dishonoured. However, the complainant, for the reasons best known, did not initiate any proceeding for the dishonour of the cheque issued by the wife of the accused. 17. As far as the complaint is concerned, it has to be proved by the complainant to the satisfaction of the Court. Even though the complainant has gone on record that he had duly paid income tax to the various amount paid to the accused and there are documents to that effect, nothing has been produced before the Court below. Even though this argument was raised before the courts below, it was not considered at all. Even though the complainant has gone on record that he had duly paid income tax to the various amount paid to the accused and there are documents to that effect, nothing has been produced before the Court below. Even though this argument was raised before the courts below, it was not considered at all. The court below ought to have carefully analysed that the accused has borrowed some amount and that his wife has also borrowed amount for which separate cheque has been issued by her, which was dishonoured. Therefore, the courts below ought to have held that the accused cannot be mulct with the liability of his wife in the instant cheque. 18. In a Criminal proceedings, the benefit of doubt will always enure to the accused. If we apply the said theory, such benefit will go to the accused in this case especially the complainant failed to account for Rs.60,000/- said to have been paid in cash and there is no explanation offered to mulct the accused with the liability for the entire amount of Rs.4,00,000/-. 19. The learned counsel for the accused brought to the notice of this Court that as against a complaint given by Asha which was pending in C.C. No. 1420 of 2007 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, the accused along with his wife have filed Crl.OP No. 5935 of 2013 before this Court. This Court, by order dated 16.07.2014, quashed the proceedings pending against the accused. In that case also, reference was made to the jurisdictional issue inasmuch as the complaint was filed invoking the jurisdiction of the Court relating to the office address of the counsel who issued the statutory notice. This Court, in Para No. 24 and 25 of the order dated 16.07.2014 held as follows:- “24. However, the learned counsel for the petitioner has canvassed yet another point for quashing the complaint. By relying upon the decision of this Court in the case of Angu Parameswari Textiles (P) vs. Sri Rajam & Co., (supra), it is submitted that the complainant in the complaint has admitted that the cheque was drawn for Rs.7,33,000/- and according to the complainant, the petitioners are due and payable to the tune of Rs.6,83,300/-. Further, there is an admission that the cheque in question was given as a surety, pursuant to an understanding made under an undertaking-cum-promissory note. Further, there is an admission that the cheque in question was given as a surety, pursuant to an understanding made under an undertaking-cum-promissory note. Therefore, even as per the averment made in the complaint, the petitioners are not liable to pay the cheque amount and it is the case of the complainant, the amount due is Rs.6,83,600/- though the undertaking dated 19.08.2014, is stated to be a letter of undertaking-cum-promisory note, it has not been stamped, therefore, it is rather difficult to accept the case of the complainant that it is a promisory note. Even going by the averments made in the said letter of undertaking, it is stated that the complainant has retained the two cheques as security for the amount and if the first petitioner commits default in paying the amount, the complainant is at liberty to utilise the same and unless and otherwise the complainant should keep the cheques for the purpose of security and she should return the same, after the instalments are over. Therefore, when the complainant himself has admitted that part amount has been paid and a lesser amount is only due and the cheque amount is not the amount due and payable and the cheques having been retained only for security, there is no further proof required to be placed before the Court by way of oral evidence or other documentary evidence, as the complaint speaks for itself and there is no further proof required in this regard. 25. This Court, in the case of Angu Parameswari Textiles (P) vs. Sri Rajam & Co., (Supra) has held that if the cheque is more than the amount due, the offence under Section 138 of the Negotiable Instrument Act, cannot be attracted. If the contentions are disputed, then the proper procedure would have been to direct the parties to agitate this issue at the time of trial, but when contentions are admitted, manifest on the face of the complaint and clear from the letter of undertaking, no further proof is required. Therefore, this Court is inclined to follow the decision of this Court in the case of Angu Parameswari Textiles (P) vs. Sri Rajam & Co., (Supra) and hold that the offence under Section 138 of the Act, does not stand attracted.” 20. Therefore, this Court is inclined to follow the decision of this Court in the case of Angu Parameswari Textiles (P) vs. Sri Rajam & Co., (Supra) and hold that the offence under Section 138 of the Act, does not stand attracted.” 20. In this case also, the cheque amount is not the amount payable by the accused and even according to the complainant, the amount borrowed by the wife of the complainant has also been included in the cheque amount. However, as mentioned supra, the complainant has not accounted for the entire amount due and payable by the accused and his wife. In any event, for the amount payable by the wife of the accused, the accused cannot be made liable especially by issuing a cheque thereof. When there is difference in the actual amount borrowed by the accused as well as the cheque amount, it cannot be said that the cheque in question was issued for a legally enforceable debt and liability by the accused. 21. Yet another legal point raised by the counsel for the accused is that the accused did not examine himself by stepping himself into the witness box and only her husband was examined as PW1. According to the learned counsel for the accused, the husband of the complainant did not participate himself in the transaction between the complainant and the accused or he has no direct evidence relating to the transactions in question i.e., between the complainant, accused and his wife and this was also admitted by PW1 in his cross-examination. The complaint was filed by the husband in his capacity as power of attorney agent for the complainant/wife. While so, the courts below erred in relying on the oral testimony of PW1 to convict and sentence the accused for the offence. For this purpose, the learned counsel for the accused relied on the decision of the Honourable Supreme Court in the case of (A.C. Narayanan and another vs. State of Maharashtra and another) reported in 2013 (5) CTC 560 wherein in para No. 23 and 24, it was held as follows:- “23. In the light of the discussions, we are of the view that the Power of Attorney Holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. In the light of the discussions, we are of the view that the Power of Attorney Holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the Power of Attorney Holder of the complainant does not have a personal knowledge about the transaction then he cannot be examined. However, when the Attorney Holder of the Complainant is in charge of the business of the Complainant-Payee and the Attorney Holder is personally aware of the transactions, there is no reason why the Attorney Holder cannot depose as a witness. Nevertheless, an explicit exception as to the knowledge of the power of attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question become infructuous. 24. In view of the discussion, we are of the opinion that the Attorney Holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a Proprietary concern, the complaint can be filed (i) by the Proprietor of the Proprietary concern, describing himself as the Sole proprietor of the “payee” (ii) the Proprietary concern, describing itself as a Sole Proprietary concern, represented by its Sole Proprietor and (iii) the Proprietor or the Proprietary concern represented by the Attorney Holder under a Power of Attorney executed by the Sole Proprietor.” 24. Applying the decision mentioned above, in the present case, the complainant did not examine herself as a witness, but her husband, in his capacity as power of attorney agent, examined himself as PW1. During his cross-examination, PW1 admitted that he has no direct knowledge with respect to the transaction between the complainant, accused and his wife. In the above decision, the Honourable Supreme Court has also held that the complainant has to make specific assertion in the complaint as to the knowledge of the power of attorney holder in the said transaction explicitly. In the present case, there is no averments made in the complaint with regard to the knowledge of the power of attorney holder with respect to the transaction between the complainant, accused and his wife. In the present case, there is no averments made in the complaint with regard to the knowledge of the power of attorney holder with respect to the transaction between the complainant, accused and his wife. Therefore, the oral testimony of PW1 is untrustworthy and it ought not to have been relied on by both the courts below for basing a judgment of conviction as against the accused in this case. 25. Yet another legal point raised by the counsel for the accused is that the complaint itself is not maintainable in view of the fact that the jurisdiction of the trial court has been invoked on the basis of the address of the counsel who issued the statutory notice. In this context, learned counsel for the accused relied on the decision of the Honourable Supreme Court in the case of (Harman Electronics Private Limited and another vs. National Panasonic India Private Limited) reported in (2009) 1 Supreme Court Cases 720 wherein the Honourable Supreme Court has held that issuance of statutory notice would not by itself give rise to a cause of action but communication of the notice would. In Para No.20, the Honourable Supreme Court held as follows:- “20. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight. A court derives a jurisdiction only when the cause of action arose within its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, the commission of an offence completes. Giving of notice therefore cannot have any precedent over the service. It is only from that view of the matter that in Dalmia Cement (Bharat) Limited vs. Galaxy Traders and Agencies Limited (2001) 6 SCC 463 emphasis has been laid on service of notice. 26. Giving of notice therefore cannot have any precedent over the service. It is only from that view of the matter that in Dalmia Cement (Bharat) Limited vs. Galaxy Traders and Agencies Limited (2001) 6 SCC 463 emphasis has been laid on service of notice. 26. In the latest decision of the Honourable Supreme Court delivered on 01.08.2014 in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra reported in 2014 (9) Scale 97 = 2014 4 CTC 666 it was held that the address of the advocate office from where the statutory notice was issued will not be a place to determine the cause of action for instituting the complaint under Section 138 of the Negotiable Instruments Act. The jurisdiction to try the case will be determined by reference to the place where the cheque is dishonoured by the bank on which it is drawn. Para Nos. 9, 10, 20 and 31 of the decision can usefully be extracted hereunder:- “9. We have also painstakingly perused Escorts Limited which was also decided by the Nishant two Judge Bench. Previous decisions were considered, eventually leading to the conclusion that since the concerned cheque has been presented for encashment at New Delhi, its Metropolitan Magistrate possessed territorial jurisdiction to entertain and decide the subject Complaint under Section 138 of the NI Act. Importantly, in a subsequent order, in FIL Industries Ltd., vs. Imtiyaz Ahmed Bhat passed on12th August 2013, it was decided that the place from where the statutory notice had emanated would not of its own have the consequence of vesting jurisdiction upon that place. Accordingly, it bears repetition that the ratio inBhaskaran has been drastically diluted in that the situs of the notice, one of the so-called five ingredients of Section 138, has now been held not to clothe that Court with territorial competency. The conflicting or incongruent opinions need to be resolved. Judicial Approach on Jurisdiction 10. Accordingly, it bears repetition that the ratio inBhaskaran has been drastically diluted in that the situs of the notice, one of the so-called five ingredients of Section 138, has now been held not to clothe that Court with territorial competency. The conflicting or incongruent opinions need to be resolved. Judicial Approach on Jurisdiction 10. We shall take a short digression in terms of brief discussion of the approach preferred by this Court in the context of Section 20 of the Code of Civil Procedure, 1908 (hereinafter referred to as, 'CPC'), which inter alia, enjoins that a suit must be instituted in a Court within the local limits of whose jurisdiction the Defendant actually and voluntarily resides, or carries on business, or personally works for gain, or where the cause of action wholly or in part arises. The Explanation to that Section is important; it prescribes that a corporation shall be deemed to carry on business at its sole or principal office, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Since this provision primarily keeps the Defendant in perspective, the corporation spoken of in the Explanation obviously refers to the Defendant. A plain reading of Section 20 of the CPC arguably allows the plaintiff a multitude of choices in regard to where it may institute its lis, suit or action. Corporation and Partnership firms, and even sole proprietorship concerns, could well be transacting business simultaneously in several cities. If sub-sections (a) and (b) of Section 20 are to be interpreted disjunctively from sub-section (c), as the use of the word “or” appears to permit the plaintiff to file the suit at any of the places where the cause of action may have arisen regardless of whether the Defendant has even a subordinate office at that place. However, if the Defendants' location is to form the fulcrum of jurisdiction, and it has an office also at the place where the cause of action has occurred, it has been held that the plaintiff is precluded from instituting the suit anywhere else. Obviously, this is also because every other place would constitute a forum non convenient. However, if the Defendants' location is to form the fulcrum of jurisdiction, and it has an office also at the place where the cause of action has occurred, it has been held that the plaintiff is precluded from instituting the suit anywhere else. Obviously, this is also because every other place would constitute a forum non convenient. This Court has harmonised the various hues of the conundrum of the place of suing in several cases and has gone to the extent of laying down that it should be courts endeavour to locate the place where the cause of action has substantially arisen. Patel Roadways Limited, Bombay v. Prasad Trading Company, AIR 1992 SC 1514 = (1991) 4 SCC 270 prescribes that if the Defendant-Corporation has a subordinate office in the place where the cause of action arises, litigation must be instituted at that place alone, regardless of the amplitude of options postulated in Section 20 of the CPC. We need not dilute on this point beyond making a reference to ONGC vs. Utpal Kumar Basu (1994) 4 SCC 711 and South East Asia Shipping Co. Ltd., vs. Nav Bharat Enterprises Pvt. Ltd (1996) 3 SCC 443 . 20. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e., applicability of complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not recommend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145 (2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145 (2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper court, in consonance with our exposition of the law. If such complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred. “31. To sum up: (i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank (ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138. (iii) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if (a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue. (b) If the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and (c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice. (iv) The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. (iv) The facts constituting cause of action do not constitute the ingredients of the offence under Section 138 of the Act. (v) The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant (vi) Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured (vii) The general rule stipulated under Section 177 of Cr.P.C. applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220 (1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182 (1) read with Sections 184 and 220 thereof. (emphasis supplied) 27. Applying the ratio laid down in the above said decision of the Honourable Court in the present case, admittedly, the complaint has been filed by the complainant by invoking the jurisdiction of the trial court on the basis of the fact that the statutory notice has been issued by the counsel for the complainant within whose office the trial court exercises its jurisdiction. As held by the Honourable Supreme Court in the decision cited supra, the office of the counsel for the complainant, who issued the statutory notice, will not give rise to a cause of action or it will be determined for the purpose of invoking the jurisdiction of the Criminal Court. 28. In the present case, it is not the case of the complainant that the cheque issued by the accused is towards legally enforceable debt and liability or that it was issued for the amount received by the accused alone. First of all, the complainant did not prove as to how the accused is liable to pay Rs.4,00,000/- being the cheque amount. This is more so that he did not account for payment of Rs.60,000/- in cash especially when it was disputed by the accused as well as his wife. First of all, the complainant did not prove as to how the accused is liable to pay Rs.4,00,000/- being the cheque amount. This is more so that he did not account for payment of Rs.60,000/- in cash especially when it was disputed by the accused as well as his wife. Further, the cheque was not dishonoured for want of funds or insufficient funds, but it was returned on the ground “referred to drawer”. The courts below erred in relying on the oral testimony of PW1, who stepped into the witness box without any knowledge about the transaction between the parties and it is not reliable as has been held by the Honourable Supreme Court in the decision referred to above. The complainant also placed heavy reliance on Ex.P16, letter of undertaking said to have been given by the accused himself, however, when the complainant did not properly account for the cheque amount, Ex.P16 need not be relied any further. This is more so that the accused has deposed that Ex.P16 has been obtained by duress and force. Further, there was admission by both sides that there were chit transaction between the parties. According to the accused, the cheques issued by him in blank towards chit transaction has been misused and abused by the complainant by filling the amount thereof. Further, in identical circumstances, a criminal complaint filed against the accused and his wife by Ms. Asha has been quashed by this Court. For all these reasons, I am inclined to set aside the judgment of conviction and sentence passed by both the Courts below. Having regard to the fact that the dispute between the parties has not only been adjudicated only on the basis of technicalities but also on merits, I am not inclined to remand the matter for determination afresh by the Courts below. 29. In the result, the Criminal Revision Case is allowed by setting aside the Judgment of both the courts below. The bail bond, if any, executed by the accused shall stand cancelled and fine amount, if any, paid shall be refunded. By virtue of this order, the accused is entitled for all the relief in accordance with law. 29. In the result, the Criminal Revision Case is allowed by setting aside the Judgment of both the courts below. The bail bond, if any, executed by the accused shall stand cancelled and fine amount, if any, paid shall be refunded. By virtue of this order, the accused is entitled for all the relief in accordance with law. It is needless to mention that it is open for the accused to work out his remedy as against the order of removal passed by his employer on the basis of the judgment of conviction passed in this case, in accordance with law.