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2015 DIGILAW 181 (CAL)

Shantanu Banerjee v. State of West Bengal

2015-02-26

SHIB SADHAN SADHU

body2015
Judgment Shib Sadhan Sadhu, J. 1. This is a petition filed under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 seeking for setting aside the impugned order dated 12.12.2013 passed by the Learned Metropolitan Magistrate, 5th Court, Calcutta in case No.C-10236 of 2007 rejecting the petition dated 12.12.2013 filed by the present petitioner praying for acquittal from that case. 2. The aforesaid case being case No.C-10236 of 2007 was filed for offence under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the “Act”). The allegation is that the accused/petitioner was supplied with ceramic tiles by the complainant (O.P.No.2 herein) price of which was Rs.4,66,820/- and the petitioner paid Rs.90,000/- in cash and issued a cheque dated 09.05.2007 for the balance amount of Rs.3,77,020/- in favour of the complainant (O.P.No.2). When it was presented for encashment it was dishonoured due to insufficiency of fund. Even after issuance of statutory notice, there was no payment. In such circumstances, the aforesaid case was filed before the Learned Trial Court. Annexure-P1 (Page 14) is the complaint of that case. 3. I have heard Mr. Anirban Mitra, Learned Advocate appearing for the petitioner and Mr. Amitava Deb, Learned Advocate appearing on behalf of the O.P. No.2. I have also perused all the available materials on record including the impugned order with meticulous care. 4. Mr. Mitra, Learned Advocate appearing on behalf of the petitioner, submitted that the petitioner/accused is a resident of Raja Manindra Road, Paikpara under P.S. Tala which is clearly outside the territorial jurisdiction of the Learned Metropolitan Magistrate, Calcutta. Therefore, in terms of the mandatory provision as laid down under Section 202 of the Cr.P.C. it was obligatory on the part of the Learned Magistrate to make further enquiry into the case by himself or by directing an investigation to be made by a Police Officer or by any other person for deciding whether or not there was sufficient ground for proceeding. But admittedly the Learned Metropolitan Magistrate has not complied with the mandatory provisions. Therefore, according to him, the impugned order is bad in law and is liable to be set aside. He relied on the decisions reported in (2013) 1 CCrLR (SC) 585 (National Bank of OMAN V. Barakara Abdul Aziz & Anr.) and (2013) 3 CCrLR (Cal) 691 (M/s. Nishka Properties (Pvt.) Ltd. & Anr. Therefore, according to him, the impugned order is bad in law and is liable to be set aside. He relied on the decisions reported in (2013) 1 CCrLR (SC) 585 (National Bank of OMAN V. Barakara Abdul Aziz & Anr.) and (2013) 3 CCrLR (Cal) 691 (M/s. Nishka Properties (Pvt.) Ltd. & Anr. V. The State of West Bengal & Anr.) in support of his submission. 5. Mr. Dev, Learned Advocate appearing on behalf of the O.P.No.2, on the other hand, submitted that the offence under Section 138 of the Act has got five components: (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 notice in writing to the drawer of the cheque demanding payment of the cheque amount; (v) failure of the drawer to make payment within 15 days of the receipt of the notice. Therefore, any 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, can become the place of trial for the offence under Section 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. Thus since the cheque was drawn on ICICI Bank, Chowringhee Branch and it was deposited by the complainant with his banker ICICI Bank, Gurusaday Road Branch, Kolkata and upon receipt of dishonoured memo from the bank the complainant issued the legal notice from his Advocate’s office at 6, Old Post Office Street, Kolkata-700 001 and those places being within the jurisdiction of the Court of Metropolitan Magistrate, Calcutta, the Court has certainly territorial jurisdiction to entertain the complaint. He, therefore, insisted upon dismissal of the instant Revisional Application. He relied on the decision reported in (1999) 7 Supreme Court Cases 510 : AIR 1999 SC 3762 (K. Bhaskaran V. Sankaran Vaidhyan Balan & Anr.) in support of his submission. 6. Having regard to the rival submission advanced by the Learned Advocates in the light of the decisions placed I find that the Hon’ble Supreme Court in the aforesaid case of K. Bhaskaran V. Sankaran Vaidhyan Balan & Anr. 6. Having regard to the rival submission advanced by the Learned Advocates in the light of the decisions placed I find that the Hon’ble Supreme Court in the aforesaid case of K. Bhaskaran V. Sankaran Vaidhyan Balan & Anr. (Supra), has interpreted Section 138 of the Act in the light of the provisions of Sections 177/178 & 179 of the Criminal Procedure Code and laid down that Section 138 has five components, 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 notice in writing to the drawer of the cheque demanding payment of the cheque amount; and v) failure of the drawer to make payment within 15 days of receipt of the notice and concluded that the complainant can choose any one of the five places to file a complaint. 7. The Hon’ble Supreme Court further held in that judgment: “14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The 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. 15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below: “178.(a)-(c) * * * (d) where the offence consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas.” 8. The Hon’ble Supreme Court further clarified the place in the context of territorial jurisdiction as per the fifth component, namely, “Failure of the drawer to make payment within 15 days of the receipt.” 9. The Hon’ble Supreme Court further clarified the place in the context of territorial jurisdiction as per the fifth component, namely, “Failure of the drawer to make payment within 15 days of the receipt.” 9. In the decision reported in A.I.R. 2013 Supreme Court 2634 (Nishant Aggarwal V. Kailash Kumar Sharma) following the aforesaid decision of K. Bhaskaran (Supra) has held that the place of residence of the payer and the payee provides for jurisdiction. That is to say that it has been held by the Hon’ble Supreme Court that the place where the cheque was presented and dishonoured has jurisdiction to try the complaint. 10. Relying on the ratio laid in the case of Nishant Aggarwal V. Kailash Kumar Sharma (Supra), the Hon’ble Supreme Court in a recent decision reported in (2014) 2 Supreme Court Cases 255 (Escorts Limited V. Rama Mukherjee) has made the position more clear by holding that the Courts within whose jurisdiction cheque was presented and dishonoured also have jurisdiction to try offence under Section 138 of the N.I. Act. 11. Admitted fact is that the cheque was drawn by the petitioner/accused on ICICI Bank, Chowringhee Branch. It is also undisputed fact that the O.P./complainant presented the cheque for encashment in ICICI Bank, Gurusaday Road Branch, Kolkata and that he issued the notice from his Advocate’s Office situated at 6, Old Post Office Street, Kolkata. It is further established position that the complainant Company has its Regional and Branch Office at 53D, Mirza Ghalib Street, Kolkata-700 016 under the Park Street Police Station. Therefore, it follows that the Learned Metropolitan Magistrate, Calcutta has territorial jurisdiction to try the complaint. 12. Chapter XV (Sections 200-203) relates to “Complaints to Magistrates” and covers cases before actual commencement of proceedings in a court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused. 13. Thus, it is clear, that, 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 under Section 138 of the Act. To put it differently, 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. The amplitude is now so widened and so expansive that it is a futile exercise to raise jurisdictional question regarding the offence under Section 138 of the Act. 14. In view of the aforesaid discussion I do not find any merit in the instant Revisional Application and the same is accordingly dismissed. 15. Keeping in view the age of the case and also the nature of the offence, the Learned Metropolitan Magistrate, 5th Court, Calcutta is directed to dispose of this case finally as expeditiously as possible but not later than two months from the date of communication of this order. 16. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.