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2014 DIGILAW 496 (KAR)

Ramkumar v. Beena Vijaya Kumar

2014-04-25

PRADEEP D.WAINGANKAR

body2014
Judgment :- 1. This revision petition under Section 397(1) r/w Sec. 401 of Cr.P.C. is filed against the judgment of conviction and sentence of the petitioner under Section 138 of the Negotiable Instruments Act by an order dated 20.05.2006 in CC No.1267/2005 on the file of the 5th JMFC, Mangalore, D.K. which has been confirmed in Crl. A. No.181/2006 on the file of the Fast Track Court, Mangalore by order dated 20.10.2010. 2. The revision petitioner was the accused before the Magistrate an a the respondent was the Complainant. Complainant filed a complaint before the Magistrate contending therein that the accused approached her in the month of July 2002 and borrowed a hand loan of Rs.5 lakhs from the Complainant for his urgent financial necessities. Towards repayment of the lean accused issued a cheque dt. 29.12.2004 for Rs.5 lakhs drawn on HDFC Bank Ltd in favour of the Complainant. On presentation of the cheque for collection, it came to be dishonoured for the reason 'account closed'. Complainant issued a legal notice dated 19.01.2005 informing the accused the factum of dishonour of the cheque and called upon him to pay the cheque amount within the stipulated period. Though the notice was received by the accused there was no response nor he paid the cheque amount, which prompted the Complainant to file a complaint against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (in short 'the Act') before the 5th JMFC, Mangalore. 3. The accused having denied the accusation for the offence punishable under Section 138 of the NI Act, the Complainant in order to prove her case examined herself as PW1 and marked Exs.Pl to P5. The accused, on the other hand, got himself examined as DW1 and relied upon Exs.D1 and D2. 4. The learned Magistrate upon going through the evidence placed on record and upon hearing both the learned counsel appearing for the parties by his judgment dated 20.05.2006 convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced him to pay a fine of Rs.5,80,000/- and in default to under go simple imprison for a period of six months. Crl. A. No.181/2006 filed by the accused before the Fast Track Court, Mangalore challenging the conviction and sentence came to be dismissed by an order dated 20.10.2010. 5. Crl. A. No.181/2006 filed by the accused before the Fast Track Court, Mangalore challenging the conviction and sentence came to be dismissed by an order dated 20.10.2010. 5. Questioning the legality and correctness of the orders passed by the both the courts below this revision is preferred. 6. I have heard both the learned counsel appearing for petitioner/accused and respondent/Complainant. Perused the records. 7. The learned counsel appearing for the accused would submit that court at Mangalore had no jurisdiction to entertain the complaint and to grant the relief claimed by the Complainant since the entire transactions have been taken place in Trichur, except the issuance of legal notice informing the factum of dishonour of cheque from Mangalore. It is also contended by the learned counsel that the cheque issued by the accused in favour of one Govardhan has been misused by the Complainant though there had been no transactions between the Complainant and the accused, much less the transaction in question. The learned counsel placed reliance on the decision of the Supreme Court in the case of M/s Harman Electronics (P) Ltd. & Anr. Vs. M/s National Panasonic India Limited reported in 2009 AIR SCW 410 and unreported decision of the Supreme Court in the case of M/s Escorts Limited vs. Rama Mukherjee delivered on 17.09.2.013 in Crl. A. No.1457/2013, in support of his arguments. Hence, he sought to allow the revision petition and to set aside the judgment of conviction and sentence, 8. Per contra, learned counsel appearing for the respondent/Complainant would contend that for the first time the accused has questioned the jurisdiction of the court at Mangalore to entertain the complaint and to grant the relief claimed by the Complainant and therefore, the accused is precluded from taking such a defence at this point of time. It is further submitted that the Complainant after compliance of all the mandatory requirements filed a complaint under Section 138 of the NI Act and that the learned Magistrate and the learned Sessions Judge upon appreciation and re- appreciation of the evidence rightly convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced him to pay a fine of Rs.5,80,000/- and that the judgment does not call for interference by this court. For these reasons learned counsel sought for dismissal of the revision petition. 9. For these reasons learned counsel sought for dismissal of the revision petition. 9. In view of the rival submission made by both the learned counsel appearing for the parties, I have examined the records of the case secured from the Courts below. The records disclose that the accused approached the Complainant and obtained hand loan of Rs.5 lakhs from the Complainant to mitigate his urgent financial requirements and towards repayment of the same he issued Ex.P1 a cheque for Rs.5 lakhs dated 29.12.2004 in favour of the Complainant drawn on HDFC Bank, Palace Road, Trichur. The cheque was presented by the Complainant for collection through her banker Punjab National Bank at Calicut. The cheque came to be dishonoured for the reason 'the account closed' as could be seen from Ex.P2, the Memorandum issued by the HDFC Bank. After dishonour of the cheque the Complainant issued a legal notice through her Advocate at Mangalore to the accused to his address at Ottappalam, Palghat District, Kerala State informing him the factum of dishonour of cheque and calling upon him to pay the cheque amount as is evident from Ex.P3 the Office copy of the legal notice. Ex.P4 is the postal acknowledgement due by the accused for having received the notice sent to him by R.PAD at his address Palghat in Kerala State. Since there was no response to the legal notice and the payment was not made as demanded by the Complainant, the Complainant filed a complaint before the 5th JMFC at Mangalore against the accused for the offence punishable under Section 138 of NI Act. Thus, from all these documentary evidence marked as Exs.Pl to P-4 coupled with the oral evidence of the Complainant-PW1 it is manifest that all the mandatory requirements to file a complaint for the offence punishable under Section 138 of the NI Act have been duly complied with. 10. Once a cheque is issued by the accused in favour of the Complainant Section 139 of N.I. Act mandates that it shall be presumed unless the contrary is proved that the complainant-holder of the cheque received the cheque towards the discharge of any debt or liability. The said presumption also includes existence of debt or liability as held by the Apex Court in 2013 (4) Crimes 393 (SC) (C. Keshavamurthy vs., H.K. Abdul Zabbar). The said presumption also includes existence of debt or liability as held by the Apex Court in 2013 (4) Crimes 393 (SC) (C. Keshavamurthy vs., H.K. Abdul Zabbar). Even otherwise the Complainant has produced a receipt Ex.P-5 issued by the accused on a stamp paper for Rs.50/- issued by Sub-Treasury on 29.06.2002 at Kozikode in Kerala State for having received an amount of ks.5 lakh from the Complainant, wherein the signature of the accused is at Ex.P5(a). Thus, the Complainant has produced necessary evidence to establish that the accused had taken a loan of Rs.5 lakh from the Complainant and towards the repayment of the same he issued a cheque in question and when the cheque was presented for collection it came to be disnonoured and even after receipt of legal notice intimating the factum of dishonour of cheque the accused failed to repay the amount within 15 days from the date of receipt of the notice and thereby on 16th day the offence committed by the accused under Section 138 of the NI Act is complete which gave rise to a cause of action to file the complaint for the offence under Section 138 of the NI Act. 11. The defence of the accused is that he had obtained an amount of Rs.25,000/- from one Govardhan as loan and as security he had given a blank cheque duly signed by him and though the accused repaid the amount to Govardhan, the biank cheque given by the accused towards security was not returned as it was misplaced and to his surprise the very same cheque has been misused by the complainant in this case. To substantiate this defence, the accused produced a receipt issued by Govardhan on a stamp paper of Rs.50/- as per Ex.D-1 The defence of the accused on the face of it is impossible to accept in view of Ex.P-4 a receipt issued by accused to the Complainant for having obtained a loan of Rs.5 lakhs on a stamp paper and towards repayment of the same he issued the cheque in question marked as Ex.P1. Rightly both the Courts below brushed aside the said defence putforth by the accused. 12. Yet another defence taken by the accused is that the Court at Mangalore had no jurisdiction to entertain the complaint filed by the Complainant and to grant the relief. Rightly both the Courts below brushed aside the said defence putforth by the accused. 12. Yet another defence taken by the accused is that the Court at Mangalore had no jurisdiction to entertain the complaint filed by the Complainant and to grant the relief. According to the accused the loan was obtained by him from the Complainant at Palghat District in Kerala State which is evident from Ex.P-4, the receipt issued by the accused to the Complainant on a stamp paper issued by Sub-Treasury in Kerala, the cheque issued by the accused in favour of the Complainant at Ex.P1 is drawn on HDFC Bank Ltd. Palace Road, Trichur, Kerala. The cheque was presented by the Complainant through her banker Punjab National Bank at Trichur. The intimation regarding the dishonour of the cheque was giver, by the HDFC Bank at Calicut. The accused is the resident of Palghat District in Kerala State. The Complainant is the resident of Mangalore and the notice informing the factum of dischonour was issued by the Complainant from Mangalore. Therefore, it is submitted that the place from where the notice is issued will not confer the jurisdiction upon the Court at Mangalore as no part of the cause of action to file complaint arose in Mangalore. 13. He further submitted that the notice has been received by the accused at Calicut and in spite of the receipt of the notice he failed to make payment of the cheque amount within 15 days from the date of receipt of the notice and thereby on 16th day the offence is complete which gave rise to the cause of action to file the complaint. In short, the submission of the earned counsel for the accused is that the cause of action to file complaint arose at Calicut and as such the complaint ought to have been filed before the Court at Calicut and the complaint filed before JMFC, Mangalore where no part of the cause of action arose, is not maintainable. 14. In short, the submission of the earned counsel for the accused is that the cause of action to file complaint arose at Calicut and as such the complaint ought to have been filed before the Court at Calicut and the complaint filed before JMFC, Mangalore where no part of the cause of action arose, is not maintainable. 14. The learned counsel placed reliance on the decision of the Supreme Court in case of M/s Harman Electronics (P) Ltd., and another vs. M/s National Panasonic India Ltd., reported in 2009 AIR SCW 410 and decision Of Division Bench of the Supreme Court in Criminal Appeal No.1457/2013 between M/s Escorts Ltd., vs. Rama Mukherjee decided on 17.09.2013 arising out of SLP (Criminal) No.7325/2012, reported in (2014) 2 SCC 255 , wherein the question involved was territorial jurisdiction of a Court to try an offence under Section 138 of the N.I. Act. 15. The main grievance of the accused in the case before the Supreme Court in M/s Harman Electronics (P) Ltd., (supra) is that the accused persons as well as the complainant are carrying their business at Chandigarh. The cheque was given by the accused to the complainant in Chandigarh and it was presented to their banker at Chandigarh. Only notice was given by the complainant to the accused from New Delhi. That the same was served on the accused admittedly at Chandigarh and that both the parties are carrying their business at Chandigarh. Therefore, it is contended that it would amount to absurdity if the complaint of the complainant is entertained in Delhi. The said contention did not find favour with Additional Sessions Judge, Delhi, before whom the jurisdiction of the Magistrate was challenged and also it did not find favour with the High Court before whom the revision was preferred in view of the Case-Law reported in AIR 1999 SC 3782 (K. Bhaskaran vs. Sankaran Vaidhyan Balan and another), wherein it is held that under Section 178(d) of Cr.P.C. the complainant can choose any one of those Courts having jurisdiction over any of the local areas within the territorial limits of any one of the following five components of the offence took place namely: i) Drawing of the cheque. ii) Presentation of the cheque to the bank. iii) Returning of the cheque unpaid by the drawee bank. iv) Giving of the demand notice. ii) Presentation of the cheque to the bank. iii) Returning of the cheque unpaid by the drawee bank. iv) Giving of the demand notice. v) Failure of the drawer to make payment within 15 days of the receipt of demand notice. 16. The Division Bench of the Supreme Court after hearing the rival submissions made at the Bar and after detailed discussions, by referring to earlier decision in K Bhaskaran's case and M/s Dalmia Cement (Bharat) Ltd., vs. M/s Galaxy Traders & Agencies Ltd., & Ors, in para 24 of the judgment observed as under:- "24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his 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, 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 in Dalmia Cement (Bharat) Ltd., v. Galaxy Traders & Agencies Ltd., [ (2001) 6 SCC 463 ) emphasis has been laid on service of notice." 17. Finally, the Supreme Court held that Delhi Court has no jurisdiction to try the case and ordered to transmit the records to District and Sessions Judge, Chandigarh for assignment of the case. 18. The question of jurisdiction also came up for consideration before the Division Bench of the Supreme Court in M/s Escort Ltd., (supra). Finally, the Supreme Court held that Delhi Court has no jurisdiction to try the case and ordered to transmit the records to District and Sessions Judge, Chandigarh for assignment of the case. 18. The question of jurisdiction also came up for consideration before the Division Bench of the Supreme Court in M/s Escort Ltd., (supra). The Supreme Court after referring to the decisions in K. Bhaskaran's case and M/s. Harman Electronics (supra), observed in para 12 of the judgment as under: "12In such circumstances, we are of the view that Harman Electronics (supra) is only an authority on the question where a Court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from other principles laid down in K. Bhaskaran (supra). This Court has accepted that the place where the cheque was presented and dishonoured has jurisdiction to try the complaint. " 19. From reading the observations made by the Supreme Court in the aforesaid decisions relied upon by the learned counsel for the revision petitioner/accused, I have no hesitation to hold that the observation made by the Supreme Court regarding the territorial jurisdiction is aptly applicable to the facts of this case. Since no part of the cause of action arose in Mangalore, the Court at Mangalore ought not to have entertained the complaint. The mere issuance of the demand notice from Mangalore will not confer the jurisdiction to the Court at Mangalore to entertain the complaint for the offence under Section 138 of the N.I. Act and to grant the relief. Both the Courts below have failed to consider and appreciate this crucial aspect of the matter in its proper perspective and thereby the orders passed by the Courts below have resulted in miscarriage of justice. It is needies to say that the order passed by the Court having no jurisdiction is no order at all in the eye of law, as such it is liable to be set aside. Accordingly, I pass the following order. ORDER The revision petition is allowed. The order dated 20.05.2006 in CC No.1267/2005 passed by the 5th JMFC, Mangalore, D.K. which has been confirmed in Crl. A. No. 181/2006 on the file of the Fast Track Court, Mangalore by order dated 20.10.2010, is set aside. The accused is acquitted of the charge under Section 138 of the N.I. Act.