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2021 DIGILAW 349 (MP)

Ashish Sethi v. Deepak Singh

2021-03-12

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. Present Criminal Revision has been filed challenging the order dated 18.1.2013 passed by learned JMFC, Vidisha in Cr. Case No. 1408 of 2006 whereby, the application filed for recalling complainant in the witness box has been rejected. 2. It is argued that a private complaint was filed by the respondent against the petitioner under Section 138 of the Negotiable Instrument Act (hereinafter would be referred as "NI Act") with regard to four cheques. The learned trial has taken cognizance in the matter and trial has commenced thereafter. Statement of complainant was recorded on 17.7.2006. Another complaint was filed against the petitioner by the respondent/complainant with respect to separate cheque in which, cognizance has also been taken and the matter is pending consideration. The complainant was got examined in the other case wherein, he has categorically sated that all the transactions have been taken place at Indore outside the justification of district Vidisha, therefore, the complaint is not maintainable before the court at district Vidisha. After closure of the defence evidence, an application was filed on 18.1.2013 for recalling the complainant in the witness box owing to the development that the complainant himself in the other case has accepted the fact that all the transactions have taken place at Indore, therefore, cognizance cannot be taken at Vidisha for filing complaint under NI Act. It is submitted that recalling of complainant is required in the matter for confronting the complainant with respect to the cause of action. Aforesaid permission be granted to the petitioner as it is a basic question which goes to the root of the case as the question of territorial jurisdiction at Vidisha is involved in the matter. In such circumstances, the court ought to have permitted the petitioner for recalling the complainant. He has relied upon the judgment passed in the case of Harman electronics private Limited and Another Vs. National Panasonic India Pvt. Ltd. reported in 2009 (I) SCC 720 with respect to the territorial jurisdiction of the court for trying the offence and has argued that the Hon'ble Supreme Court has considered the aforesaid aspect and has given verdict with respect to the jurisdiction of the court to entertain the application under Section 138 of NI Act at the place where the cause of action arises. He has also relied upon the judgment passed by Hon'ble Supreme Court in the case of Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.) reported in (2007) 2 SCC 258 which deals with the right of petitioner/accused for fair trial. The basic question of jurisdiction of the court is involved in the matter and the petitioner is having right to just, proper and fair trial. In such circumstances, the application for recalling complainant should have been allowed by learned trial court. Petitioner has filed a copy of agreement to demonstrate the fact that the transactions have taken place at Indore. 3. Per contra, counsel for the respondent has opposed the prayer of the petitioner contending that there is no illegality committed by the trial court in rejecting the application. It is argued that the court at Vidisha is having jurisdiction to entertain complaint under Section 138 of the NI Act for the simple reason that the transactions have taken place at Vidisha. The cheques were given to the complainant at Vidisha and dishonour of the same was also taken place at Vidisha much less that the complainant/respondent is resident of Bada Bazar, Vidisha. In such circumstances, there is no illegality committed by the trial court. Even otherwise, evidence of another case cannot be considered and relied upon in the present case dealing with dishonour of the cheques. The law is well settled with respect to the territorial jurisdiction of the trial court in respect of private complaint. He has relied upon the judgment passed by this court in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another reported in 2000 (1) MPLJ 1 wherein, the Hon'ble Supreme Court has held that there are five places where complaint can be filed. Case of the petitioner falls under the aforesaid guidelines issued by the Hon'ble Supreme Court also. He has further relied upon the judgment rendered by this court in the case of Murli Dhar Vs. Ishwar Dayal Girdhani reported in 2011 (2) MPHT 221 and in case of Shamshad Begum (Smt.) Vs. Case of the petitioner falls under the aforesaid guidelines issued by the Hon'ble Supreme Court also. He has further relied upon the judgment rendered by this court in the case of Murli Dhar Vs. Ishwar Dayal Girdhani reported in 2011 (2) MPHT 221 and in case of Shamshad Begum (Smt.) Vs. B. Mohammed reported in (2008) 13 SCC 77 wherein, the Hon'ble High Court and Supreme Court had categorically held that it is not necessary that concatenation of five acts constituting an offence under Section 138 NI Act should have been perpetrated at the same locality and even a part of cause of action arises at a place is sufficient to take cognizance. In such circumstances, when the cheques were issued and presented at Vidisha court, the court at Vidisha was having jurisdiction to entertain the private complaint. 4. Heard learned counsel for the parties and perused the record. 5. From perusal of record, it is not disputed that the private complaint was filed with respect to dishonor of four cheques and another for one case at Vidisha. The complainant is resident of Vidisha. From perusal of private complaint, it is reflected that the cheques were presented at Vidisha which were dishonored at Vidisha. Legal notices were issued from Vidisha and above all, the complainant is resident of Bada Bazar, Vidisha. 6. The Hon'ble Supreme Court in the case of K. Bhaskaran (Supra) has held as under: "The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. 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". 7. In case of Shamshad Begum (Smt.) (Supra), the Hon'ble Apex Court has held as under: "It is not necessary that 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 concatenation of all the above five is sine qua non for the completion of the offence under Section 138 of the Act". 8. It is possible that each of those five acts could be done at five different localities. But concatenation of all the above five is sine qua non for the completion of the offence under Section 138 of the Act". 8. Thus, from perusal of the facts and circumstances of the case and also the judgments rendered by Hon'ble Apex Court in the cases stated above, the private complaint has rightly been entertained at Vidisha as the cause of action had arises at Vidisha. As far as recalling of witness is concerned, the application was rightly turned down by the trial court as the same is not maintainable as the cheques were dishonored at Vidisha and the complainant himself had presented them at Vidisha. The complaint was also filed at Vidisha as the complainant is resident of Vidisha. 9. Considering the overall facts and circumstances of the case, present criminal revision is sans merits and is hereby dismissed. Interim order passed by this court stands vacated. 10. A copy of this order be communicated to the learned trial court for necessary action.