IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL WRIT PETITION NO. 30 OF 2011
Rajendra Marga Gaikwad,
age 40 years, occ. Business,
Proprietor ‘Yashraj’ Agencies S.No.
143/1/1 Tathawade Chowk,
Opp. Savani Transport Co.
Tathawadegaon, Pune-411033 and
R/o Samrat Nagar, Near Budhavihar,
Near Kate Petrol Pump,Pimple
Saudagar, Pune-411027 …Petitioner
(Original Accused)
VERSUS
Kail Limited (which is formerly
known as Kitchen Appliances
(India) Ltd.), a company
incorporated under the
Companies Act, 1956, having its
Corporate office at C-6,
Ashok Steel Compound,
159, C.S.T. Road, Santacruz (East),
Mumbai-400098 (India and
Administrative and Registered Office
at Auto Cars Compound, Adalat
Road, Aurangabad-431005 …Respondent
(Original Complainant)
2 crwp30.11
…..
Shri P.R.Katneshwarkar, advocate holding for
Shri S.R.Andhale, advocate for the petitioner
Shri L.B.Palod, advocate for the respondent
…..
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 01.08.2011
DATE OF PRONOUNCING
THE JUDGMENT : 10.08.2011
J U D G M E N T :
1 Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, taken up for final
hearing.
2 The controversy in the present petition revolves
around the aspect of territorial jurisdiction regarding filing of the
complaint under Section 138 of the Negotiable Instruments Act,
and the petitioner herein i.e. original accused has filed the
present petition against the respondent i.e. original complainant
under Article 227 of the Constitution of India and prayed that
the impugned order passed on 23.9.2010, by the learned 10th
3 crwp30.11
Joint Judicial Magistrate, First Class, Aurangabad, below Exh.
13, in Summary Criminal Case No. 1077 of 2010 be quashed
and set aside.
FACTUAL MATRIX : –
3 The parties hereinafter are referred to as per their
original status i.e. ‘the complainant’ and ‘the accused’.
The petitioner (original accused) is the proprietor of
Proprietory Firm, namely ‘Yashraj Agencies’ and he is carrying
on the business of sale and purchase of various electronic
items at Tathawadegaon, Pune. The detailed address thereof
is given in the title clause of the present petition. He claims
that he looks after the day today affairs and management of the
said Company and is responsible for the entire dealings of the
said Firm and is solely liable to pay the dues to the complainant
Company, if any.
4 The complainant is a Company incorporated under
the Companies Act and having its corporate office at Mumbai
and administrative and registered office at Aurangabad and is
carrying on business of sale and purchase of various electronic
items, such as colour Television Sets, VCD, DVD, Audios, etc.
and having Branches throughout the country including Pune.
5 The complainant filed a complaint against the
accused under Section 138 of the Negotiable Instruments Act,
through its power of attorney holder Sunil Chandrakant
Bhukele, who is authorised to file the complaint on behalf of the
Company at Aurangabad. It is alleged in the said complaint that
the accused purchased electronic items from the complainant
and for the repayment of the said amount, the accused issued
cheque of Rs.3,36,751/- bearing No. 124636, dated 1.8.2009,
drawn on Indrayani Cooperative Bank Limited, Pimpri, Pune.
The complainant presented the said cheque for encashment
purpose through its banker H.D.F.C. Bank, Aurangabad.
However, the said cheque was dishonoured and returned
unpaid with the Bank memo, dated 26.11.2009, with the
endorsement “funds insufficient”. The accused’s banker
informed the said fact of dishonour of said cheque to the
complainant’s banker by its memo, and complainant’s banker
in turn informed to the complainant by memo on 8.12.2009.
Hence, the complainant issued demand notice dated
24.12.2009 to the accused and called upon him to make the
payment of the said cheque at Aurangabad. However, the
accused failed to comply with the requisitions contained in the
said notice in spite of the receipt thereof. Hence, the
complainant filed the complaint against the accused under
Section 138 of the Negotiable Instruments Act before the
learned Judicial Magistrate, First Class, Aurangabad.
6 The accused appeared in the said complaint and
preferred an application Exh.13 on 31.7.2010 and raised the
objection in respect of the territorial jurisdiction contending that
as per Section 177 of the Code of Criminal Procedure, the
cause of action for the offence arose at Pune, and therefore,
the learned Judicial Magistrate, First Class, Aurangabad has no
jurisdiction to entertain and try the said complaint, and hence,
requested the learned Judicial Magistrate, First Class,
Aurangabad to return the said complaint for presentation
thereof before the proper forum/prayed for dismissal of the said
complaint.
7 After hearing the rival submissions advanced by the
learned counsel for the accused and the complainant, the
learned 10th Joint Judicial Magistrate, First Class, Aurangabad,
passed an order on 23.9.2010 and held that the said court has
territorial jurisdiction to entertain and try the said complaint,
relying upon the judgment in the case of K. Bhaskaran of Apex
Court and declined to hold that the Pune court shall have
jurisdiction, as contended by the accused, and consequently,
dismissed the said application.
8 Being aggrieved and dissatisfied by the said order,
dated 23.9.2010, the accused preferred the present writ petition
for the prayers as set out herein above.
SUBMISSIONS : –
9 Learned counsel for the petitioner (original accused)
submitted that Chapter XIII comprising Sections 177, 178 and
179 of the Code of Criminal Procedure deals with the territorial
jurisdiction aspect of the criminal courts in inquiries and trials,
and it is submitted that in the judgment of the Apex Court, in
the case of K. Bhaskaran vs Sankaran Vaidya and Co.,
reported at (1999) 7 SCC 510, the said aspect has been aptly
dealt with and the Apex Court opined that the offence under
Section 138 of the Negotiable Instruments Act can be
completed only with the concatenation of a number of acts,
namely (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; and (5)
failure of the drawer to make payment within 15 days of the
receipt of the notice. It was opined 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
and the complainant would be at liberty to file the complaint at
any of those places, as regards the requirement of giving notice
and also receipt thereof by the accused, it was stated.
10 Learned counsel argued that the said issue of
territorial jurisdiction was further developed and enunciated by
the Apex Court in the case of Harman Electronics (P) Ltd. Vs
National Panasonic India Ltd., reported at 2009 (1) SCC 720
and relying upon the said case, it was argued that the crucial
question is whether any part of the cause of action arose within
the jurisdiction of the Aurangabad court, in terms of Section 177
of the Code of Criminal Procedure, since it is the place where
offence was committed. In essence, it is the cause of action for
initiation of the proceedings against the accused. Accordingly, it
is submitted that the court derives the jurisdiction only when the
cause of action arose within its jurisdiction. It is also
canvassed that issuance of notice by itself would not give rise
to the cause of action, but the communication of the notice
would.
11 Thus, relying upon the said Ruling, learned counsel
for the accused canvassed that the whole transaction between
the accused and the complainant took place at Pune and even
the disputed cheque in question was issued by the accused to
the complainant at Pune and the drawee bank of the said
cheque was situated at Pune and the said cheque was
dishonoured at Pune and only by presenting the said cheque
9 crwp30.11
by the complainant from Aurangabad for realisation and
issuance of demand notice from Aurangabad after dishonour of
the said cheque and having administrative and registered office
of the complainant at Aurangabad, will not confer jurisdiction
upon court at Aurangabad and considering Sections 177 and
178 of the Code of Criminal Procedure, having conjoint reading
of Section 138 (a), (b) and (c) of the Negotiable Instruments Act
therewith, the only irresistible conclusion that can be drawn is
that Pune court shall have jurisdiction, and therefore, prayed
that present petition be allowed.
12 Learned counsel for the complainant countered the
said arguments vehemently and submitted that the
complainant’s administrative and registered office is situated at
Aurangabad, although it’s Branch office is situated at Pune and
disputed cheque in question was issued by the accused to the
complainant at Pune and the said cheque was presented by the
complainant for realisation through its collecting banker
H.D.F.C. Bank at Aurangabad and it was dishonoured and was
returned unpaid and the intimation thereof was received by the
complainant through its collecting banker at Aurangabad and
the complainant issued the demand notice on 24.12.2009 to the
accused from Aurangabad and called upon the accused to
make payment of the said dishonoured cheque at Aurangabad,
and accordingly, the accused failed to make the payment within
15 days from the date of receipt of the notice at Aurangabad, as
called upon to him by the said demand notice, and therefore, it
is submitted that the offence was constituted at Aurangabad
and the cause of action arose at Aurangabad, and hence,
Aurangabad court only has jurisdiction to entertain and try the
complaint filed by the complainant.
13 Moreover, it is also canvassed by the learned counsel
for the complainant that it was agreed between the parties that
the transaction is subject to the jurisdiction of Aurangabad and
the said term is mentioned on the invoice and accepted by the
accused, and hence, it is submitted that the jurisdiction has
been conferred upon Aurangabad court only.
14 Learned counsel for the complainant relied upon the
judgment of the Division Bench of this court in the case of
Preetha S. Babu, Ernakulum vs Voltas Ltd., Chochin and
another, reported at 2010 (3) Mh.L.J. 234, (Hon’ble Smt. Justice
Ranjana Desai and Hon’ble Smt. Justice Mrudula Bhatkar),
wherein afore said both the judgments in the cases of K.
Bhaskaran and Harman Electronics (P) Ltd., rendered by
Hon’ble Supreme Court were discussed and it was held that if
the complainant calls upon the accused to make payment at a
place mentioned in the demand notice and if the accused fails
to make payment at that place, part of cause of action would
arise at that place.
15 Learned counsel for the complainant relied upon the
latest Ruling of Single Judge (Hon’ble Shri Justice J.H.Bhatia)
of this court in the case of ASR Systems Pvt. Ltd. New Delhi
and another vs Kimberly Clark Hygiene Products Pvt. Ltd. Mann
and another, reported at 2011 (4) Mh.L.J. 275, wherein it is
held as follows :
“ That in the case of dishonour of cheque and
as regards the territorial jurisdiction of the court
in the event of cheque issued by the accused at
Delhi against their accounts maintained with
the banks at Delhi and the cheque deposited
by the complainant at Pune bank for
presentation to the drawee bank at Delhi, the
complainant’s banker at Pune did not become
banker to whom the cheque was presented and
notice issued by the complainant from Pune
making demand of money of the bounced
cheques. Thereupon the accused was
expected to make payment at Pune and on
failure to make the payment, the court at Pune
had jurisdiction to entertain and decide the
complaint [2000 (1) Mh.L.J.(SC)193] relied
upon.“
16 Hence, learned counsel for the complainant asserts
that Aurangabad court only shall have jurisdiction to entertain
and try the complaint filed by it and learned Trial Court has
rightly rejected application Exh.13 preferred by the accused, by
order, dated 23.9.2010 raising objection regarding territorial
jurisdiction and no interference therein is called for and the
present petition, which bears no substance, be dismissed.
CONSIDERATION : –
17 Considering the rival submissions advanced by the
learned counsel for the parties and also after having gone
through the judicial pronouncements, cited by them, carefully, it
is necessary to reproduce relevant provisions of the Code of
Criminal Procedure and the Negotiable Instruments Act, in
respect of territorial jurisdiction, as stated below :-
“ Section 177 of the Code of Criminal Procedure –
Ordinary place of inquiry and trial : – Every offence shall
ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed.
Section 178 of the Code of Criminal Procedure –
Place of inquiry or trial : –
(a) When it is uncertain in which of several local
areas an offence was committed; or
(b) where an offence is committed partly in one local
area and partly in another, or
(c) where an offence is continuing one, and continues
to be committed in more local areas than one, or
(d) where it consists of several acts done in different
local areas,
it may be inquired into or tried by a Court having jurisdiction
over any of such local areas.
Section 179 of the Code of Criminal Procedure –
Offence triable where act is done or consequence ensues :-
When an act is an offence by reason of anything which has
been done and of a consequence which has ensued, the
offence may be inquired into or tried by a Court within whose
local jurisdiction such thing has been done or such
consequence has ensued. “
“ Section 138 of the Negotiable Instruments Act
Dishonour of cheque for insufficiency, etc., of funds in the
account :-
………………….. …………….
(a) the cheque has been presented to the
bank within a period of six months from the date
on which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course
of the cheque, as the case may be, makes a
demand for the payment of the said amount of
money by giving a notice in writing, to the
drawer of the cheque, within thirty days of the
receipt of information by him from the bank
regarding the return of the cheque as unpaid;
and
(c) the drawer of such cheque fails to
make the payment of the said amount of money
to the payee or as the case may be, to the
holder in due course of the cheque within fifteen
days of the receipt of the said notice.
…………………….. ……………….. “
18 Keeping in mind the aforesaid relevant provisions
pertaining to the territorial jurisdiction, and coming to the case
of Division Bench of this court in Preetha S. Babu vs Voltas Ltd.
(supra), wherein it is observed as follows :-
“ 9 It is necessary to see how the
Supreme Court proceeded to deal with the
question of jurisdiction. The Supreme Court
referred to Chapter 13 of the Code of Criminal
Procedure, 1973 (for short, “the Code”) which
pertains to jurisdiction of the criminal courts in
inquiries and trials. The Supreme Court referred
to Section 177 of the Code which says that
“every offence shall ordinarily be inquired into
and tried by a court within whose local
jurisdiction it was committed.” The Supreme
Court observed that Section 177 has been
framed by the legislature thoughtfully by using
the precautionary word `ordinarily’ to indicate
that the rule is not invariable in all cases. The
Supreme Court then referred to Section 178 of
the Code which pertains to place of inquiry or
trial. It was observed that Section 178 suggests
that if there is uncertainty as to where, among
different localities, the offence would have been
committed, the trial can be had in a court having
jurisdiction over any of those localities. The
Supreme Court observed that this provision has
further widened the scope by stating that in case
where the offence was committed partly in one
local area and partly in another local area, the
court in either of the localities can exercise
jurisdiction to try the case. The Supreme Court
then turned to Section 179 of the Code and
observed that Section 179 of the Code stretches
its scope to a wider horizon. Section 179 of the
Code states that when an act is an offence by
reason of anything which has been done and of
a consequence which has ensued, the offence
may be inquired into or tried by a court within
whose local jurisdiction such thing has been
done or such consequence has ensued.
Therefore, the court within whose local
jurisdiction the consequences ensue can also
have jurisdiction to try that offence. The
Supreme Court cautioned that the above
provisions of the Code must be borne in mind
when the question regarding territorial
jurisdiction of the court to try the offence is to be
determined.
10 The Supreme Court then stated the
components of offence under Section 138 of the
NI Act. Paragraph 14 of the said judgment
needs to be quoted.
“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)
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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.”
11 The Supreme Court then observed
that 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, the
concatenation of all the above five is a sine qua
non for the completion of the offence under
Section 138 of the NI Act. To emphasis these
points, the Supreme Court referred to Section
178(d) of the Code which states that when it is
uncertain in which of several local areas an
offence was committed or where it consists of
several acts done in different local areas, it may
be inquired into or tried by a court having
jurisdiction over any of such local areas. After
referring to Section 178(d) of the Code, the
Supreme Court observed that the five different
acts, which are the components of Section 138
of the NI Act as stated by it in paragraph 14,
which we have quoted hereinabove, are 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 NI Act. It is
necessary to quote paragraph 16 because it has
great relevance to this case.
“16. Thus it is clear, 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. 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. As the
amplitude stands so widened and so
expansive it is an idle exercise to raise
jurisdictional question regarding the
offence under Section 138 of the Act.”
12 It is pertinent to note that on the facts
of the case before it, the Supreme Court
observed that the locality where the bank which
dishonoured the cheque is situated cannot be
regarded as the sole criteria to determine the
place of offence (emphasis supplied). Implicit in
this observation of the Supreme Court is it’s view
that the place where the cheque is dishonoured
can be a criterion to determine the place of
19 crwp30.11
offence. The Supreme Court further observed
that offence under Section 138 of the NI Act
would not be completed with the dishonour of the
cheque. It attains completion only with the failure
of the drawer of the cheque to pay the cheque
amount within the expiry of 15 days mentioned in
clause (c) of the proviso to Section 138 of the NI
Act. The Supreme Court further went on to say
that it is normally difficult to fix up a particular
locality as the place of failure to pay the amount
covered by the cheque. A place, for that
purpose, would depend upon a variety of factors.
It can either be at the place where the drawer
resides or at the place where the payee resides
or at the place where either of them carries on
business. The Supreme Court held that the
Kerala High Court was, therefore, right in holding
that the trial court had jurisdiction to entertain the
complaint.
13 In Shamshad Begam, a Single
Judge of the Karnataka High Court had
dismissed the petition under Section 482 of the
Code where a prayer was made to quash the
case pending on the file of learned Magistrate at
Mangalore arising out of Section 138 of the NI
Act. The appellant accused had filed the petition
in the Karnataka High Court on the ground that
the Mangalore court had no jurisdiction to try the
case because the agreement was entered into at
Bangalore and the cheques were returned by the
banks at Bangalore. The complainant stated that
before issuing the notice, he had shifted his
residence to Mangalore and, therefore, he had
issued the notice from Mangalore which was
received by the appellant-accused and the reply
was sent by her to the appellant-accused at
Mangalore address. As the notice in writing to
the drawer of the cheque demanding payment of
cheque amount was sent from Mangalore, the
court at Mangalore has jurisdiction to try the
case. The High Court noted that one of the
components of the offence was giving notice in
writing to the drawee of the cheque by
demanding payment of the cheque amount.
The said action had taken place in Mangalore
and, therefore, the petition was without merit.
The Supreme Court referred to K. Bhaskaran
and quoted extensively from it. The Supreme
Court reaffirmed that offence under Section 138
of the NI Act has five components i.e. (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 and (5) failure of
the drawer to make payment within 15 days of
the receipt of the notice. The Supreme Court
reiterated that it is not necessary that the above
five acts should have been perpetrated at the
same locality and it is possible that each of these
five acts could be done at five different localities.
The Supreme Court refused to interfere with the
High Court’s order. In our opinion, the law of
jurisdiction has been succinctly stated in K.
Bhaskaran followed by Shamshad Begam and
we need to say nothing more on this aspect.
14 In Harman, the complainant and the
accused entered into a business transaction.
The accused was a resident of Chandigarh. He
carried on the business in Chandigarh. He
issued the cheque in question at Chandigarh.
The complainant had a Branch Office at
Chandigarh although his Head Office was at
Delhi. He presented the cheque given by
the accused at Chandigarh. The cheque was
dishonoured at Chandigarh. The complainant
issued a notice upon the accused asking him to
pay the amount from New Delhi. The said notice
was served on the accused at Chandigarh. On
failure on the part of the accused to pay the
amount within fifteen days from the date of the
communication of the said letter, the complainant
filed a complaint at Delhi. In the complaint it
was stated that the Delhi Court has
jurisdiction to try the case because the
complainant was carrying on business at Delhi;
the demand notice was issued from Delhi; the
amount of cheque was payable at Delhi and the
accused failed to make the payment of the said
cheque within statutory period of fifteen days
from the date of receipt of notice.
15 Cognizance of the offence was taken
by learned Magistrate. The accused questioned
the jurisdiction of the Magistrate at Delhi before
the Additional Sessions Judge, New Delhi.
Learned Sessions Judge held that the Magistrate
at Delhi had jurisdiction to entertain the
complaint as admittedly the notice was sent by
the complainant to the accused from Delhi
and the complainant was having its registered
office at Delhi and was carrying on business at
Delhi. Learned Judge also observed that the
accused failed to make payment at Delhi as the
demand was made from Delhi and the payment
was to be made to the complainant at Delhi. The
Delhi High Court dismissed the petition filed by
the accused.
16 The accused approached the
Supreme Court. The Supreme Court considered
Section 138 of the NI Act. It referred to K.
Bhaskaran and quoted the five components
of offence under Section 138 of the NI Act which
have been noted in K. Bhaskaran . The Supreme
Court reiterated that if five different acts which
are the components of offence under Section
138 of the NI Act 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 NI Act and the complainant
would be at liberty to file a complaint/petition at
any of those places.
17 The Supreme Court held that the
Chandigarh court had jurisdiction to entertain the
complaint because the parties were carrying on
business at Chandigarh; branch office of the
complainant was in Chandigarh; the
transactions were carried on only from
Chandigarh and the cheque was issued and
presented at Chandigarh. The Supreme Court
observed that the complaint did not show that
the cheque was presented at Delhi, it was
absolutely silent in that regard and, therefore,
there was no option but to presume that the
cheque was presented at Chandigarh.
Undisputedly the dishonour of the cheque also
took place at Chandigarh and, therefore,
according to the Supreme Court, the only
question which arose for consideration was
whether sending of notice from Delhi itself would
give rise to a cause of action in taking
cognizance under the NI Act.
18 Harman is, therefore, only an authority
on the question whether a court will have
jurisdiction because only notice is issued from
the place which falls within its jurisdiction and it
does not deviate from the other principles laid
down by the Supreme Court in K. Bhaskaran.
The Supreme Court accepted that the place
where the cheque was presented and
dishonoured has jurisdiction to try the complaint.
The Supreme Court concluded that issuance of
notice would not by itself give rise to a cause of
action but communication of the notice would.
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. The
Supreme Court in effect affirmed what it had said
in K. Bhaskaran that court within whose
jurisdiction the cheque is presented and in
whose jurisdiction there is failure to make
payment within 15 days of the receipt of the
notice can have jurisdiction to try the offence
under Section 138 of the NI Act. “
19 It is material to note that the Apex Court while holding
that Chandigarh court has jurisdiction, has observed in the case
of Harman Electronics (P) Ltd. that in the case before it, the
complaint was silent as to whether the said cheque was
presented at Delhi. However, in the present case, it is
categorically stated that disputed cheque in question was
presented for realisation at Auangabad through the collecting
banker of complainant i.e. H.D.F.C. Bank, Aurangabad and in
the present case, it is also categorically stated that dishonour of
the disputed cheque in question took place at Aurangabad,
since the complainant’s banker informed the fact of dishonour
of said cheque to the complainant company by its memo
received by the complainant company on 8.12.2009, as stated
in para no.6 of the complaint, and therefore, the offence
constituted and cause of action took place at Aurangabad,
which consequently, confers jurisdiction for filing the complaint
in Aurangabad court.
20 Moreover, it is also important to note that in the case
of Preetha S. Babu (supra), the Division Bench of this court has
considered the Ruling of the learned Single Judge of this court
(R.C.Chavan, J.) in Ahuja Dongre’s case and also considered
the judgment of another learned Single Judge of this court
(V.R.Kingaonkar, J.) in Dipti Kumar Mohanty, where Ahuja
Dongre’s case was followed., and also considered the judgment
of learned Single Judge of this court (S.A.Bobde, J.) in the
case of Nutan Damodar Prabhu, as well as considered the
judgment of learned Single Judge (R.M.S.Khandeparkar, J.) in
the case of Damodar S.Prabhu, and observed that the view
taken in Ahuja Dongare’s case is contrary to the view taken by
Hon’ble Supreme Court in the case of K.Bhaskaran, and agreed
with the view taken by the learned Single Judge in Ahuja
Dongare’s case to the extent that ‘the Bank’ referred to in
Clause (a) to the proviso to Section 138 of the Negotiable
Instruments Act, would mean that the drawee bank on which
the cheque is drawn, but with great respect further observed
that the view taken by the learned Single Judge in that case in
the context of jurisdiction of the court to entertain complaint
under Section 138 of the Negotiable Instruments Act, that the
cheque has to be presented to the drawee bank at the place
mentioned in the cheque and only the court within whose
jurisdiction, the drawee bank is situated will have jurisdiction to
entertain the complaint and not the court at another place
where it is presented for realization, needs to be reconsidered
by a larger bench in an appropriate case.
21 Thereafter, having considered the judgment of
Hon’ble Supreme Court in the case of Ishar Alloys Steels Ltd.
Vs Jayaswals NECO Ltd., 2001 (3) Mh.L.J. (SC) 1, the Division
Bench of this court in the case of Preetha’s case (supra)
observed that therefore, the cheque can be presented at the
collecting bank of the payee. The collecting bank has to then
send it to the drawee bank. That must be done within six
months. If the cheque is dishonoured and money is not paid
within 15 days of the notice, complaint can be filed at the place
where the collecting bank is situated. The idea is that the
cheque should reach the drawee bank within six months. It can
be directly presented to it or it can be presented through the
collecting bank.
22 Applying the afore said parameters to the present
case, it is apparently clear that the accused issued disputed
cheque in question at Pune, drawn on its drawee bank, namely
Indrayani Cooperative Bank, Pimpri, Pune, but the complainant
presented the said cheque for realisation and encashment
through its collecting banker i.e. H.D.F.C. Bank at Auragnabad
and the said cheque was dishonoured by the bank of the
accused and sent the same to the complainant’s banker i.e.
H.D.F.C. Bank, Aurangabad, with the remark “funds insufficient”
along with memo, dated 26.11.2009, and consequently, the
complainant’s banker H.D.F.C. Bank, Aurangabad informed the
said fact of dishonour of the said cheque to the complainant by
its memo on 8.12.2009.
23 Thereafter, the complainant issued the demand
notice to the accused from Aurangabad on 24.12.2009 and
called upon the accused to make the payment of the said
cheque to the complainant at Aurangabad (emphasis supplied)
and the said notice was received by the accused, but the
accused failed to make the payment of the said cheque to the
complainant at Aurangabad, within 15 days as contemplated
therein at Aurangabad, as specifically called upon by the
complainant to the accused to do so (emphasis supplied), and
therefore, the offence was constituted at Aurangabad and it
cannot be construed that whole cause of action took place at
Pune only, since part of cause of action arose at Aurangabad,
and hence, inevitably Aurangabad court shall have the territorial
jurisdiction to entertain and try the complaint lodged by the
complainant.
24 Moreover, the very root cause in the present matter
i.e. the invoice cannot be ignored and it was agreed between
the parties that the transaction is subject to the jurisdiction of
Aurangabad and the said term is mentioned on the invoice and
accepted by the accused, as rightly observed by the learned
Trial Court in the impugned order, dated 23.9.2010.
25 Besides, as observed by the Apex Court in Harman
Electronics (P) Ltd.’s case that it is necessary to strike a
balance between the right of the complainant and the right of an
accused vis-a-vis the provisions of the Code of Criminal
Procedure, it is possible that the accused can take exemption
from appearance in the court; whereas the complainant runs
the risk of his complaint being dismissed in his absence, and
therefore, hardship caused to the complainant is more, and
therefore also, the Aurangabad court where the complainant’s
administrative and registered office is situated, and where part
of cause of action arose, as stated hereinabove, shall have
jurisdiction to entertain and try the complaint.
26 In the light of the afore said discussion, and having
conjoint reading of Sections 177, 178 and 179 of the Code of
Criminal Procedure and Section 138 (a), (b) and (c) of the
Negotiable Instruments Act, and considering the guidelines, in
respect of law of territorial jurisdiction, laid down by the Hon’ble
Supreme Court and the Division Bench of this Court, as afore
stated, it is amply clear that the learned Trial Court has rightly
dismissed the application Exh.13 in Summary Criminal Case
No. 1077 of 2010 in respect of the objection of territorial
jurisdiction raised by the accused and has rightly declined the
submission of the accused that only court at Pune can have
jurisdiction and rightly held that Aurangabad court shall have
jurisdiction to entertain and try the complaint filed by the
complainant and no interference therein is warranted in the
extraordinary jurisdiction of this court, and hence, the present
petition bears no substance and same is devoid of any merits
and therefore, same deserves to be dismissed.
27 In the result, present petition is dismissed. The
impugned order, dated 23.9.2010, passed by the learned 10th
Joint Judicial Magistrate, First Class, Aurangabad, below Exh.
13, in Summary Criminal Case No. 1077 of 2010 is upheld and
confirmed. Rule stands discharged accordingly.
(SHRIHARI P. DAVARE, J.)
ADVOCATE MAGESH 