BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.03.2014 CORAM THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM Crl.O.P(MD)No.20108 of 2013 and Crl.O.P(MD)No.20109 of 2013 and M.P.(MD)Nos.2,2,3 and 3 of 2013 V.Geetha Rani ..Petitioner/Accused versus D.Dhamodahr ..Respondent/Complainant Petitions filed under Section 482 of the Code of Criminal Procedure, to to call for the records pertaining to S.T.C.Nos.27 and 840 of 2011 on the file of the Judicial Magistrate No.1, (Fast Track Court).Karur and quash the same.
!For Petitioner ..Mr.M.Bindran ^For Respondent ..Mr.RMS.Sethuraman :COMMON ORDER
These petitions have been filed to call for the records in STC Nos.27 and 840 of 2011, on the file of the Judicial Magistrate No.1, (Fast Track Court).Karur and quash the same.
2.The brief facts of the case are as follows:- The petitioner/accused approached the complainant on 18.04.2010 and 22.08.2010 and borrowed a sum of Rs.15,00,000/- and Rs.4,50,000/- respectively for her husband's business, agreeing to repay the same with interest at the rate of Rs.1.00, per Rs.100/- per month and executed a demand promissory note in favour of the complainant.
Despite of repeated requests and demand made by the complainant, on 03.10.2010 issued four post dated cheques bearing Nos.061743, 061744 and 061748 for a total sum of Rs.9,00,000/- towards part satisfaction of the said loan, drawn on Bank of India, Saibaha Colony Branch, Coimbatore and when the cheques were presented on 05.02.2011 through the State Bank of India, Karur, it was returned with an endorsement ".Insufficient Funds".
by memorandum, dated 07.02.2011 and therefore, the complainant issued a legal notice, dated 14.02.2011 and even though, the same was received, the petitioner has not come forward to pay the amount.
Hence, the complainant filed two private complaints before the learned Judicial Magistrate No.1, (Fast Track Court).Karur and the same were taken on file as S.T.C.Nos.27 and 840 of 2011.
Aggrieved over the same, these criminal original petitions are filed by the petitioner to quash STC Nos.27 and 840 of 2011 respectively.
3.The learned counsel for the petitioner argued that 138 of NI Act, proceedings were initiated by the respondent before the Judicial Magistrate No.1, (Fast Track Court).Karur, but without considering the cheques issued and the cheques presented for realization in some other branch, the Judicial Magistrate has taken the private complaints filed by the complainant on file and since, the learned Judicial Magistrate, Karur has no jurisdiction to try the offence, the criminal proceedings against the petitioner are liable to be quashed.
4.In support of his contention, he relied upon the decision of the Hon'ble Apex Court reported in AIR2001Supreme Court 1161 [Shri Ishar Alloys Steels Ltd., versus Jayaswals NECO Ltd.]., wherein it is held as follows:- ".(A) Negotiable Instruments Act (26 of 1881).S.138, S.5, S.6 - Dishonour of cheque - Offence of - Presentation of cheque to ".the bank".
within a period of six months from date on which it is drawn is mandatory requirement - Post-dated cheque -Six months period for presentation - Has to be reckoned from date written on cheque - Post-dated cheque becomes a cheque under the Act on the date which is written on the said cheque - Till that date it is only a bill of exchange.
(Para 6) (B) Negotiable Instruments Act (26 of 1881).S.138, Proviso (a).S.3, S.72 - Dishonour of cheque - Offence of - Essential ingredient - Presentation within six months from date on which it is drawn - Has to be on drawee bank on which cheque is drawn either directly or indirectly through collecting bank of payee - Use of direct article ".The".
in words ".The bank".
- indicates this intention of legislature.
A.B.K.Publications Ltd.V.Tamil Nadu Newsprint and Papers Ltd., 1999 Crl LJ2741(Madras).Overruled (2000) 3 MPLJ216 Reversed.".
5.
In 2011 (3) RCR (Criminal) 137 [Pritish Tewari versus Vista Security Technics Private Limited, Chennai]., this Court has held as follows:- ".Case Note: Criminal - Jurisdiction - Section 138 of Negotiable Instruments Act, 1882 - Petitions filed against cognizance taken by Magistrate under Section 138 of Act - Whether territorial jurisdiction lies at Judicial Magistrate where complaint was filed - Held, in K.Bhaskaran versus Sankaran Vaidhyan Balan and Anr, Supreme Court held that territorial jurisdiction had been resettled to where cheque had been issued, where cheque had been returned by drawee bank and where notice had been received by drawer - Place of presentation of cheque to holder's bank and place of issue of notice would no more confer jurisdiction - Complainant averred in complaint that they had supplied various materials having Office at other place in respect of which Petitioner company had issued cheques - There was no averment to show that transaction was carried on at jurisdiction of present Trial Court - Following ratio laid down in above matter, Court was of view that Courts at other place alone was having territorial jurisdiction for trial of alleged offence under Section 138 of Act - Petitions disposed of by directing Respondent to withdraw complaints within four weeks and present same before Courts at other place which had territorial jurisdiction within four weeks thereafter.".
6.On the other hand, the learned counsel for the respondent argued that the Judicial Magistrate No.1, Karur, has got jurisdiction and according to 138 NI Act, there are five grounds viz., (1)Drawing of 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.
If any one of cause of action arose, on that basis also, the complaint has to file for the offence under section 138 of NI Act in a particular Magistrate Court, following the procedures contemplated under section 138 NI Act and therefore, the complainant has correctly initiated proceedings before the appropriate court and only in order to delay the proceedings, the petitioner filed these criminal original petitions, which are not maintainable and therefore, prays for the dismissal of the petitions.
7.Section 138 of N.I.Act reads as follows:- ".138.
Dishonour of cheque for insufficiency, etc., of funds in the account.
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid.
either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice.
to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (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 fifteen 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 couRs.of the cheque, within fifteen days of the receipt of the said notice.
Explanation.- For the purposes of this section,".
debt or other liability".
means a legally enforceable debt or other liability.
8.It is admitted that charges were framed against the petitioner/accused and the cheques were presented for collection on 05.02.2011 through State Bank of India, Karur Branch to the Bank of India, Saibaha Colony, Coimbatore and the cheques were returned on the ground of 'Insufficient Funds' on 07.02.2011 and subsequently, notice was issued by the complainant on 14.02.2011 and the same was received by the petitioner on 17.02.2011 and subsequently, payment was not made as per the complaint.
9.It is also admitted that the criminal proceedings are pending before the learned Judicial Magistrate No.1, (Fast Track Court).Karur, till today.
10.It is admitted by both parties that cheques were issued by the present petitioner to the respondent on 03.11.2011 and the cheques were drawn on Bank of India, Coimbatore, and the said cheques were sent for collection through the State Bank of India, Karur and the cheques were dishonoured with an endorsement as 'Insufficient Funds' and notice was issued by the respondent through his counsel from Karur and the for that, reply was also received.
11.From the above, it is made clear that cheques were drawn on Bank of India, Saibaba Colony Branch, Coimbatore and when the same were sent for collection through State Bank of India, Karur Branch, the cheques were returned with endorsement 'Insufficient Funds".12.In the judgment reported in (2013)10 SCC72 in the case of Nishant Aggarwal and versus Kailash Kumar Sharma, it has been held as follows:- ".Section 138 of the NI Act was interpreted in the light of sections 177, 178 and 179 Cr.P.C in K.Bhaskaran, (1999).SCC510and it was laid down that section 138 NI Act has five components, namely (1)drawing of the cheque; (ii)presentation of the cheque to the bank; (iii)returning the cheque unpaid by 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 the receipt of the notice.
The complainant can choose any one of the five places to file a compliant.
The place in the context of territorial jurisdiction as per the fifth component is ".failure of the drawer to make payment within 15 days of the receipt of notice'.
Hence, the place of failure to pay the amount has been clearly qualified as the place where the drawer resides or the place where the payee resides.
In view of the same and in the light of the law laid down in K.Bhaskaran case, the Magistrate at Bhiwani clearly has territorial jurisdiction to try the complaint filed by the respondent as the respondent is undisputedly a resident of Bhiwani.
Further, in K.Bhaskaran case, while considering the territorial jurisdiction at great length, the Supreme court has concluded that the amplitude of territorial jurisdiction pertaining to a complaint under the NI Act is very wide and expansive.
' 13.
In the above decision, at paragraph Nos.18 and 19, the Hon'ble Apex Court has held as follows:- ".18.
In Ishar Alloy Steels a three-Judge Bench of this Court defined the term ".the bank".
appearing in clause (a) of Section 138 of the NI Act as the drawer's bank.
It was defined in the context of the statutory period of six months as mentioned in clause (a).hence, this Court held that the date of presentation of the cheque for calculating the statutory time period of six months will be the date of presentation of the cheque to the drawer's bank i.e.payee bank and not the drawee's bank i.e.collecting bank.
This Court has correctly applied the principle of strict interpretation appreciating that Section 138 of the NI Act creates an offence as the drawer of the cheque cannot be expected or saddled with the liability to hold the cheque amount in his account beyond six months.
The reading of the entire decision in Ishar Alloy Steels shows that jurisdiction of the Court to take cognizance arises only where the cheque is presented to the bank of drawer either by drawee's bank or the drawee/payee personally within six months.
In other words, on the analysis of the said decision, the ratio of Ishar Alloy Steels deals with such a situation where the cheque has been presented within six months to the drawer's bank by the payee in any manner.
Inasmuch as the interpretation relates to filing of complaint within the statutory time period of six months, we are of the view that the reliance on the law laid down in Ishar Alloy Steels has no relevance as far as the present case is concerned.
In fact, that is the reason that in Ishar Alloy Steels, the judgment in K.Bhaskaran was not discussed since territorial jurisdiction was not the issue in that case.
In view of the same, the definition of the term ".the bank".
envisaged in Ishar Alloy Steels cannot be employed to decide the jurisdictional aspect and dilute the ratio of the judgment in K.Bhaskaran.
Hence, we are of the view that on the strength of the judgment in Ishar Alloy Steels defining the term ".the bank"., it cannot be said that jurisdiction to file a complaint under Section 138 of the NI Act does not lie at the place of drawee's bank.
19.
To put it clearly, the judgment in Ishar Alloy Steels does not affect the ratio of the judgment in K.Bhaskaran which provides for jurisdiction at the place of residence of the payer and the payee.
In such circumstances, we are of the view that the judgment in Ishar Alloy Steels as well as the judgments of various High Courts relied on by the appellant cannot be read against the respondent to hold that the Magistrate at Bhiwani does not have the jurisdiction to try the complaint.".
14.In the above decision, the Hon'ble Apex Court held that the court within whose jurisdiction the cheque was issued and in whose jurisdiction cheque was presented for collection and there is failure to make payment within 15 days of the receipt of the notice, any one of the Court can have jurisdiction to try the offence under section 138 of NI Act.
15.In this case, admittedly the cheques were presented for collection In State Bank of India, Karur Branch to the Bank of India, Saibaba Colony Branch, Coimbatore and the same were dishonoured and hence, Karur court is also having jurisdiction to try the complaint.
16.
Therefore, the contention of the learned counsel for the petitioner that since the cheques were drawn on Bank of India, Coimbatore, hence, Karur court has no jurisdiction to try the offence cannot be accepted.
Hence, this court is of the considered view that the complaints filed by the respondent/complainant before the Judicial Magistrate Court No.I, (Fast Track Court).Karur, is maintainable.
17.In the result, both the criminal original petitions are dismissed.
Consequently, connected Miscellaneous are closed.
er/jrl