Judgment:
Heard finally. Rule returnable forthwith.
2. Petitioner (HDFC Bank Ltd.) questions legality of order dated 5th October 2010 passed by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai in the three proceedings initiated for an offence punishable under Section 138 r/w. 141 of Negotiable Instruments Act, 1881, thereby the learned Judge has observed the Court at Mumbai has no territorial jurisdiction to try the complaint and hence, the complaint was returned under Section 201(a) of Cr.P.C., for presentation to proper Court.
3. The Respondents M/s. New Tech Forge and Foundry Ltd. and Ors. had availed financial facilities from Centurion Bank of Punjab Ltd. (For short Centurion Bank). The Respondent – Company had issued certain cheques in favour of Centurion Bank. On 23.05.2008, Centurion Bank was amalgamated with the H.D.F.C. Bank Ltd. (Petitioner). After amalgamation, H.D.F.C. Bank sought to release the cheques by presenting them for collection at Mumbai. However, same were dishonoured by the partners of Respondents at Rajkot. The Petitioner had dispatched statutory notice to the Respondents from Mumbai demanding payment at Mumbai but no payments were made and hence, the complaint for an offence punishable under Section 138 r/w. 141 of Negotiable Instruments Act is filed at Mumbai.
4. In earlier round of litigation, issuance of process was questioned and this Court, in Criminal Writ Petition No.1388 of 2009 and group matters on February 17, 2010, directed the learned Metropolitan Magistrate to cause enquiry in terms of Section 202 (amended provisions) of Cr.P.C. and to pass appropriate order. It was, in this situation, the impugned orders are recorded by the learned Metropolitan Magistrate.
5. Mr. Ponda, learned Counsel for the Petitioner submits that the HDFC – Bank is shuttling for four years for its just cause. The procedure that has been followed by the learned Judge, does not contemplate exercise of return of complaint by virtue of Section 201(a) of Cr.P.C. The territoriality is never a ground for competence of the learned Judge to send a complaint to the appropriate Court. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises.
6. The learned Counsel has relied to the Judgment in the matter of Trisuns Chemical Industry V/s. Rajesh Agarwal and Ors. (1999) 8 SCC 686, the Hon'ble Supreme Court, in paragraphs 14 and 15 observed as under:-
“14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to make cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post-cognizance stage and not earlier.
15. Unfortunately, the High court, without considering any of the aforesaid legal aspects rushed to the erroneous conclusion that the “Judicial Magistrate of the First Class, Gandhidham has no power to take cognizance of the offences alleged” merely because such offences could have been committed outside the territorial limits of the State of Gujarat. Even otherwise, without being apprised of the fuller conspectus a decision on the question of jurisdiction should not have been taken by the High Court at a grossly premature stage as this.”
6. The learned Counsel submits that the scheme in terms of prosecution under Section 138 of Negotiable Instruments Act and jurisdiction of the Court is well defined in catena of Judgments. He has relied upon the following Judgments:-
(1) 1996 (1) Mh.L.J. 164 - Kirti Dal Udyog, Nagpur V/s. Bhanwarlal Ramchandra Chandak.
(2) 2010 (2) Bom. C.R. (Cri.) 770 – Hemlata Raghunath Pendharkar V/s. Jaswantsingh Rajaram Sonawane and anr. (Bombay High Court)
(3) 2011 All MR (Cri.) 243 – Subhiksha Trading Services Ltd. and Ors. V/s. Kotak Mahindra Bank Ltd. and Anr. (Bombay High Court)
(4) 2010 All MR (Cri.) 2391 – M/s. Ruchi Soya Industries Ltd. V/s. State of Maharashtra and Ors. (Bombay High Court)
(5) 2009 Cri. L.J. 1304 - Smt. Shamshad Begum V/s. B. Mohammed. (Supreme Court)
(6) 2011 (3) Bom. C.R. (Cri.) 30 – ASR Systems Pvt. Ltd. and Anr. V/s. Kimberly Clark Hygiene Products Pvt. Ltd. and Anr. (Bombay High Court)
(7) 2012 92) Bom. C.R. (Cri.) 826 – Rajendra Marga Gaikwad V/s. Kail Limited. (Bombay High Court)
(8) 2012 (1) Bom. C.R. (Cri.) 208 – Narendramal Mishrimal Bafna and Anr. V/s. State of Maharashtra and Anr. (Bombay High Court)
(9) 1999 (7) SCC 510 – K. Bhaskaran V/s. Sankaran Vaidhyan Balan and Anr. (Supreme Court)
(10) 1998 (4) All MR 281 – M/s. Yashomala Engineering Pvt. Ltd. and Ors. V/s. Tata SSL Ltd. and Anr. (Bombay High Court)
(11) 2010 All MR (Cri) 1025 – Mrs. Preetha S. Babu V/s. Voltas Ltd. and Anr. (High Court Division Bench)”
7. Sum and the substance of the learned Counsel for the Petitioner is, since the registered office of the Petitioner is in Mumbai, cheque is deposited in Fort Branch at Mumbai, demand notice has been dispatched from Mumbai, the demand for deposit of the amount was to be at Mumbai. The jurisdiction of learned Metropolitan Magistrate, Mumbai will be squarely applicable and hence, the order impugned deserves to be set aside.
8. There is no quarrel on the legal proposition as highlighted in the matter of K. Bhaskaran v/s. Sankaran, of the five aspect of jurisdiction 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, followed by subsequent pronouncements and discussed by the Division Bench of this Court in Mrs. Preetha S. Babu v/s. Voltas Ltd. and Anr., in respect of five components to deal with jurisdictional aspect.
9. The Supreme Court has also observed, “ the locality where the bank which dishonoured the cheque is situated cannot be regarded as the sole criteria to determine the place of offence.” In M/s. Harman's case Electronics Pvt. Ltd. and Anr. V/s. M/s. National Panasonic India Limited (2009) 1 All MR (Cri.) 280 (SC), the complainant and the accused entered into business transaction, the accused was resident of Chandigarh. The Complainant had a branch office at Chandigarh although his office is at Delhi. He presented cheque at Chandigarh, cheque was dischonoured at Chandigarh, however, the complainant issued notice upon the accused asking him to pay the amount at New Delhi. The said notice was served on the accused at Chandigarh. The statutory notice demanded payment at Delhi and then the complaint was filed. The Supreme Court did not agree to this situation as it referred to K. Bhaskaran (supra) and quoted five components under the Section 138 of Negotiable Instruments Act. The Hon'ble Supreme Court felt that it was the jurisdiction of the Court at Chandigarh to entertain the complaint.
10. Section 202 of Cr.P.C. conceive : “Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either 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 or not there is sufficient ground for proceeding.”
11. The factual matrix/case illustrate that by virtue of an agreement entered into by Centurion Bank with the Petitioner – Bank, the process of amalgamation is ensued. There was an Agreement between Centurion Bank and Respondent.
Clause 3.15 of the Agreement is as under:-
“3.15. The Borrower (referring Respondent) expressly recognizes and accepts that the Bank (referring Centurion Bank) shall be absolutely entitled and have full power and authority to sell, assign, securize or otherwise transfer in any manner whatsoever, in whole or in part, and in such manner and on such terms as the Bank may decide, (including reserving a right to the Bank to retain its power hereunder to proceed against the Borrower on behalf of the purchaser, assignee or transferee) any or all outstanding and dues of the Borrower to any third party of the Bank's choice with or without any underlying security, without any further reference or intimation or notice and without seeking any consent of the Borrower. Any such action and any such sale, assignment or transfer or secruitization shall bind the Borrower to accept such third party as creditor exclusively or as a joint creditor with the Bank as the case may be. The Borrower shall not assign this Agreement or any of the rights, duties or obligations of the Borrower hereunder, except with the prior written consent of the Bank.”
12. These terms in the agreement will at the most bind the Respondent as borrower to face action of recovery or otherwise contemplated by the Petitioner – Bank. However, this agreement will not take away the rights and denude of it accrued to the Respondents by virtue of agreement it had, with Centurion Bank, including question of jurisdiction.
13. There was absolutely no financial transaction with H.D.F.C. Bank at any of its Branch by the Respondents. The effect of amalgamation made the Petitioner – Bank to step in the shoes by payee and has to enchash the cheques issued in favour of the Centurion Bank as the dishonour thereof has taken place at Ahmadabad on its presentation. It is pertinent that in the agreement dated 11th May 2008, between the Respondent and Centurion Bank, the jurisdiction was engrafted at Ahmadabad and not at Panaji, at Goa (Head Office of Centurion Bank) or at Mumbai. The payments were to be made at Ahmadabad. In this scenario of the matter, the Petitioner – HDFC Bank would not get better right than what was prevalent for payee Centurion Bank. The Petitioner could have deposited the cheques at Ahmadabad, as it has a branch at Ahmadabad but the Petitioner chose to prosecute the matter from its registered office at Mumbai. There is no question of inconvenience to the Petitioner - Bank to prosecute its cause from Ahmadabad. Mere presentation of the cheque for collection by the Petitioner at Mumbai alone would not be enough to exhaust territorial jurisdiction for Mumbai. The credit facility extended by the Centurion Bank having been taken place at Ahmadabad Branch and the cheque was dishonoured at Ahmadabad, the cheque was drawn on the bank located at Ahmadabad, consequently, the Petitioner as complainant was expected to invoke jurisdiction to the Court at Ahmadabad and it could not be to the learned Metropolitan Magistrate at Mumbai, at the whims of Petitioner – Bank, taking recourse to its Registered office, oblivious to basic facts.
14. The provisions of Section 482 of Cr.P.C. confers a separate and independent power of this Court alone in cases where grave and substantial injustice has been done and where the process of the Court has been seriously abused. The powers under Section 482 of Cr.P.C. would not be within the bracket of revisional powers as separate remedy is provided under Section 397, 401 of Cr.P.C. In State of Harayana v/s. Bhajanlal (1992) SCC 335, the Hon'ble Supreme Court has indicated myrid kinds of cases wherein such powers should be exercised. This illustrate, the existence of alternate remedy is a bar for invocation of inherent powers under Section 482 of Cr.P.C. or under Article 227 of Constitution of India. The remedy of revision could not be overlooked.
15. Another feature of the matter is, the impugn order is dated 5th October 2010. The certified copy was received on 18th October 2010 and Writ Petition is belatedly filed on 2nd May 2011, by-passing the provisions under Section 397 of Cr.P.C. before the Sessions Court. There was no eventuality for the Petitioners to invoke extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India or Section 482 of Cr.P.C.
16. By virtue of amendment in Section 202 of Cr.P.C., the inquiry as to jurisdictional aspect having been directed by this Court, the learned Judge was, within his competence to decide the same. This need not be now questioned as the conspectus of the same has been decided by this Court in the above referred Writ Petition. The observations in the matter of Trisuns (supra) by Hon'ble Supreme Court are to be considered post amendment to Section 202 of Cr.P.C. Whether inquiry u/s. 202 for jurisdiction is discretionary or mandatory need not be pressed into as Petitioner did not challenge orders in Writ Petition No.1388 of 2009. No error or perversity is seen in the questioned order.
17. In the result, Writ Petitions dismissed with costs. Rule Discharged.