| SooperKanoon Citation | sooperkanoon.com/973546 |
| Court | Rajasthan Jodhpur High Court |
| Decided On | May-30-2012 |
| Appellant | Ram Kumar |
| Respondent | Darbara Singh |
30. May, 2012. HON'BLE MR. JUSTICE SANDEEP MEHTA Mr.MK Garg, for the petitioner. Mr.VK Bhadu, for the respondent. ... BY THE COURT : Reportable Heard learned counsel for the parties. The instant misc. petition has been preferred by the petitioner challenging the order dated 2.6.2010 passed by the learned Additional Sessions Judge No.1, Sri Ganganagar rejecting the revision petition filed by him against the order dated 12.3.2010 passed by learned Special Judicial Magistrate (NI Act Cases), Sri Ganganagar in Criminal Case No.227/2009. The petitioner, who is facing trial in the court of learned Special Judicial Magistrate (NI Act Cases), Sri Ganganagar in Criminal Case No.227/2009, filed an application praying that the proceeding of the complaint filed in the Court of learned Special Judicial Magistrate (NI SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (2) Act Cases), Sri Ganganagar was without jurisdiction as the Court at Sri Ganganagar had no territorial jurisdiction to try the case. Succinctly stated the facts necessary for the disposal of the instant misc. petition are that the respondent Darbara Singh filed a complaint in the Court of A.C.J.M., Sri Ganganagar against the petitioner with the allegation that the petitioner handed over a cheque of Rs.40,000/- payable at UCO Bank, Jaitsar to the complainant on 31.8.2007. The complainant alleged that the cheque was handed over to him by the accused at Sri Ganganagar with the assurance that the same would be honoured on being presented to the bank. The complainant further alleged that he presented the cheque for encashing in his bank i.e. UCO Bank, Jaitsar on 11.9.2007 from where an intimation was received that the funds were insufficient in the account held by the accused. Thereupon, the complainant gave a legal notice to the accused through his counsel at Sri Ganganagar. When the payment was not forthcoming despite the receipt of the notice, a complaint was filed in the court of learned A.C.J.M., Sri Ganganagar from where the same has been transferred to the Court of learned Special Judicial Magistrate (NI Act Cases), Sri Ganganagar. The accused petitioner on appearing submitted an SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (3) application under Section 177 Cr.P.C. praying that the complaint filed in the jurisdiction of the Court at Sri Ganganagar was without jurisdiction as none of the parts of cause of action for entertaining the complaint has arisen in the territorial jurisdiction of the Courts at Sri Ganganagar and it was thus, prayed that the complaint be dismissed as having been filed in the Court having no jurisdiction. The said application was rejected by the order dated 12.3.2010. The petitioner challenged the said order by filing a revision and the learned revisional court has also rejected the revision by order dated 2.6.2010. Assailing the orders impugned, learned counsel for the petitioner submitted that the only reason for which the complaint has been entertained in the Court at Sri Ganganagar is that the legal notice was given by the complainant through his counsel from Sri Gangangar. It is also submitted that the judgment rendered by the Hon'ble Apex Court in the case of Smt. Shamsad Begum vs. B. Mohammed reported in AIR 200.SC 1355.on the strength whereof the prayer made by the accused for challenging the jurisdiction of the court was rejected, does not apply to the facts of the case. It is also submitted that a detailed consideration of aspect regarding the jurisdiction to entertain a complaint being available to the Court simply on SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (4) the basis of the place from where the legal notice was issued, was made by the Hon'ble Apex Court in its salutory judgment rendered in the case of M/s. Harman Electronics Pvt. Ltd. vs. National Panasonic India Ltd. reported in AIR 200.SC 1168.It is submitted that in the light of this decision, mere issuance of a notice from Sri Ganganagar would not form a part of cause of action so as to entitle the complainant to file the complaint at the Court located at Sri Ganganagar. It is further submitted that since all the actions giving rise to the cause of action for the offence under Section 138 of the Negotiable Instruments Act took place at Jaitsar, only the Court having jurisdiction to try the complaints for the offences committed in that area, could entertain the complaint. Thus, it is prayed that the misc. petition deserves to be accepted and the proceedings of the complaint filed at Sri Ganganagar deserve to be quashed. Per contra, learned counsel for the respondent/ complainant has opposed the arguments advanced on behalf of the petitioner and submitted that the decision of the Hon'ble Apex Court rendered in the case of Shamsad Begum (supra) is directly and squarely applicable to the facts of the case. It is also submitted that in this case, admittedly, the legal notice was issued from Sri Ganganagar SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (5) and thus, the Court at Sri Ganganagar undoubtedly has the jurisdiction to entertain the complaint. On consideration of the arguments advanced at bar and upon going through the two judgments referred to above, this Court is of the opinion that the judgment rendered by the Hon'ble Apex Court in the case of Harman Electronics (supra) is a view which has been arrived at after a detailed comparative consideration of relevant provisions of law i.e. Sections 177, 178 and 179 Cr.P.C. and Section 138 of the Negotiable Instruments Act and lays down the law in the correct perspective. If the view as expressed by the Hon'ble Apex Court in the case of Shamsad Begum is accepted, then a situation may arise wherein the banking institution or a finance company, which has in its possession numerous cheques of a loanee, would have the various cheques presented & dishonoured from banks located at different States all over the Country and thereafter have the legal notices issued from different places and from a dispute arising from a single transaction, different complaints would be filed at Courts located at different places all over the country. This, in the opinion of this Court, cannot be the intention of law. The Hon'ble Apex Court in the case of Harman Electronics (supra) while considering the provisions of SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (6) Section 138 of the Negotiable Instruments Act vis-a-vis Section 177 Cr.P.C. observed as below :- Territorial jurisdiction of a court to try an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") is in question in this appeal. The said question arose in the following circumstances : Appellants and respondent entered into a business transaction. Appellant is a resident of Chandigarh. He carries on business in Chandigarh. The cheque in question admittedly was issued at Chandigarh. Complainant also has a branch office at Chandigarh although his Head Office is said to be at Delhi. It is stated that the cheque was presented at Chandigarh. However, it is in dispute as to whether the said cheque was sent for collection to Delhi. The cheque was dishonoured also at Chandigarh. However, the complainant-respondent issued a notice upon the appellant asking him to pay the amount from New Delhi. Admittedly, the said notice was served upon the respondent at Chandigarh. On failure on the part of the appellant to pay the amount within a period of 15 days from the date of communication of the said letter, a complaint petition was filed at Delhi. In the complaint petition, it was stated :
"0. That the complainant presented aforesaid cheque for encashment through its banker Citi Bank NA. The Punjab and Sind Bank, the banker of the accused returned the said cheque unpaid with an endorsement "Payment stopped by drawer" vide their memo dated 30.12.2000. The aforesaid memo dated 30.12.2000 was received by the complainant on 3.1.2001.
11. Upon dishonour of the above- mentioned cheque, the complainant sent notice dated 11.1.2001 in terms of section 138 of Negotiable Instruments Act to the accused persons demanding payment of aforesaid cheque amount at Delhi. The accused persons were served with said notice by registered A/D.
12. By the said notice the accused persons SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (7) were called upon to pay to the complainant the sum of Rs. 5,00,000/- within 15 days of the receipt of said notice.
13. Despite the service of notice dated 11.1.2001 the accused persons have failed and/or neglected to pay amount of aforesaid cheque within the stipulated period of 15 days after the service of the notice.
14. Accused persons clandestinely/ deliberately and with mala fide intention and by failing to make the payment of the said dishonoured cheque within the stipulated period have committed the offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881.
15. The complainant further submit that the complaint is being filed within 1 month from the date of expiring of the 15 days grace time given under the notice for payment of said amount.
16. This Hon'ble Court has jurisdiction to entertain the present complaint as complainant carries on its business at Delhi. The demand notice dated 11.1.2001 was issued from Delhi and the amount of cheque was payable at Delhi and because accused failed to make the payment of amount of said cheque within statutory period of 15 days from receipt of notice."
3. Cognizance of the offence was taken against the appellant by the learned Judge. Questioning the jurisdiction of the court of Additional Sessions Judge, New Delhi, an application was filed which was disposed of by the learned Additional Sessions Judge, New Delhi in terms of an order dated 3.2.2003 stating : "2. The main grievance of the accused is that the accused persons, as well as the complainant are carrying their business at Chandigarh. The cheque in question was given by the accused to the complainant in Chandigarh, and it was present to their banker at Chandigarh. Only notice was given by the complainant to the accused persons, from Delhi. That the same was SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (8) served on the accused admittedly, at Chandigarh and that both the parties are carrying out their business also at Chandigarh. Therefore, it is contended that it would amount to absurdity if the complaint of the complainant is entertained, in Delhi, in view of the case law reported in AIR 199.SC 3782.K. Bhaskaran vs. Sankaran Vaidhyan Balan and another.
6. I have considered the arguments advanced at the bar, and I am of the considered opinion that this court has jurisdiction to entertain this complaint, as admittedly the notice was sent by the complainant to the accused persons from Delhi, and the complainant is having its registered office at Delhi, and that they are carrying out the business at Delhi. Admittedly, it is also evident from the record that accused allegedly failed to make the payment at Delhi, as the demand was made from Delhi and the payment was to be made to the complainant at Delhi."
4. By reason of the impugned judgment, Criminal Miscellaneous Petition filed by the appellant has been dismissed.
5. Mr. Ashok Grover, learned Senior Counsel appearing on behalf of the appellant would submit that as the entire cause of action arose within the jurisdiction of the courts at Chandigarh, the learned Additional Sessions Judge, New Delhi had no jurisdiction to take cognizance of the offence.
6. Mr. Sakesh Kumar, learned counsel appearing on behalf of the respondent, on the other hand, would contend : i. The cheque although was deposited at Chandigarh, the same having been sent by Citi Bank NA for collection at Delhi, the amount became payable at Delhi. ii. Giving of a notice being a condition precedent for filing a complaint petition under Section 138 of the Negotiable Instruments Act, a notice having been SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (9) issued from Delhi, the Delhi Court had the requisite jurisdiction, particularly when demand was made upon the appellant to pay the complainant at Delhi.
9. Reliance has been placed by both the learned Additional Sessions Judge as also the High Court on a decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. [(1999) 7 SCC 510]. This Court opined that the offence under Section 138 of the 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, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It was opined that if 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 a complaint petition at any of those places. As regards the requirements of giving a notice as also receipt thereof by the accused, it was stated:
"8. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address." SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (10) 12. Indisputably, the parties had been carrying on business at Chandigarh. The Head Office of the complainant-respondent may be at Delhi but it has a branch office at Chandigarh. It is not in dispute that the transactions were carried on only from Chandigarh. It is furthermore not in dispute that the cheque was issued and presented at Chandigarh. The complaint petition is totally silent as to whether the said cheque was presented at Delhi. As indicated hereinbefore, the learned counsel appearing on behalf of the complainant- respondent contended that in fact the cheque was put in a drop box but as the payment was to be obtained from the Delhi Bank, it was sent to Delhi. In support of the said contention, a purported certificate issued by the Citi Bank NA has been enclosed with the counter-affidavit, which reads as under : "This is to confirm that M/s. National Panasonic India Pvt. Ltd. (NPI) having registered office at AB- 11, Community Centre, Safdarjung Enclave, New Delhi - 110029 are maintaining a Current Account No. 2431009 with our Bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi-110001 only and not at any other place in India including Chandigarh. Further confirmed that CITI Bank has provided the facility for collection of Cheques/Demand Drafts from branches of NPI located at various places/cities in India. However, all amounts of Cheques/Demand Drafts so collected on behalf of National Panasonic India Private Limited are forwarded and debited/credited to the aforesaid Current Account No. 2431009 with our Bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi 110001."
13. The complaint petition does not show that the cheque was presented at Delhi. It is SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (11) absolutely silent in that regard. The facility for collection of the cheque admittedly was available at Chandigarh and the said facility was availed of. The certificate dated 24.6.2003, which was not produced before the learned court taking cognizance, even if taken into consideration does not show that the cheque was presented at the Delhi Branch of the Citi Bank. We, therefore, have no other option but to presume that the cheque was presented at Chandigarh. Indisputably, the dishonour of the cheque also took place at Chandigarh. The only question, therefore, which arises for consideration is that as to whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instruments Act.
14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (12) 17. The distinction between passing of an order which is final and a communication thereof is not necessary has been noticed by this Court subsequently in State of Punjab vs. Khemi Ram [(1969) 3 SCC 28.stating : "In our view, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a Government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word 'communication' ought not to be given unless the provision in question expressly so provides. Actual knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in The State of Punjab u. Amar Singh (AIR 196.SC 1313.contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid." For constitution of an offence under Section 138 of the Act, the notice must be received by the accused. It may be deemed to have been received in certain situations. The word 'communicate' inter alia means 'to SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (13) make known, inform, convey, etc.' 18. This Court in Sultan Sadik vs. Sanjay Raj Subba and Ors [(2004) 2 SCC 377], held :
"3. The decision of this. Court in Khemi Ram [(1969) 3 SCC 28.relied upon by Mr. Bachawat is not apposite as therein an order of suspension was in question. This Court in the said decision itself referred to its decision in State of Punjab v. Amar Singh Harika [AIR 196.SC 1313], which stated that communication of an order dismissing an employee from service is imperative. If communication of an order for terminating the jural relationship is imperative, a fortiori it would also be imperative at the threshold."
19. Section 177 of the Code of Criminal Procedure determines the jurisdiction of a court trying the matter. The court ordinarily will have the jurisdiction only where the offence has been committed. The provisions of Sections 178 and 179 of the Code of Criminal Procedure are exceptions to Section 177. These provisions presuppose that all offences are local.
20. Therefore, the place where an offence has been committed plays an important role. It is one thing to say that a presumption is raised that notice is served but it is another thing to say. that service of notice may not be held to be of any significance or may be held to be wholly unnecessary.
21. In Mosaraf Hossain Khan vs. Bhagheeratha Engg. Ltd. [(2006) 3 SCC 658], this court held :
"0. In terms of Section 177 of the Code of Criminal Procedure every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. S. 178 provides for place of inquiry or trial in the following terms : '178. (a) When it is -uncertain in which of several local areas an offence was committed, or (b) where an offence is committed partly SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (14) in. one local area and partly in another, or (c) where an offence is a 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.
31. A bare perusal of the complaint petition would clearly go to show that according to the complainant the entire cause of action arose within the jurisdiction of the district courts of Birbhum and in that view of the matter it is that court which will have jurisdiction to take congnizance of the offence. In fact the jurisdiction of the court of CJM, Suri, Birbhum is not in question. It is not contended that the complainant had suppressed material fact and which if not disclosed would have demonstrated that the offence was committed outside the jurisdiction of the said court. Even if Section 178 of the Code of Criminal Procedure is attracted; the court of the Chief Judicial Magistrate, Birbhum will alone have jurisdiction in the matter.
32. Sending of cheques from Ernakulam or the respondents having an office at that place did not form an integral part of 'cause of action' for which the complaint petition was filed by the appellant and cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by the Chief Judicial Magistrate, Suri."
22. In Y. A. Ajit v. Sofana Ajit [AIR 200.SC 3151), this Court held : "The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (15) jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases."
23. Presumption raised in support of service of notice would depend upon the facts and circumstances of each case. Its application is on the question of law or the fact obtaining. Presumption has to be raised not on the hypothesis or surmises but if the foundational facts are laid down therefor. Only because presumption of service of notice is possible to be raised at the trial, the same by itself may not be a ground to hold that the distinction between giving of notice and service of notice ceases to exist.
24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. 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. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd., [(2001) 6 SCC 463.emphasis has been laid on service of notice.
25. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (16) from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature 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.
26. Learned counsel for the respondent contends that the principle that the debtor must seek the creditor should be applied in a case of this nature.
27. We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle. The conclusion arrived at by the Hon'ble Apex Court was to the effect that mere sending of notice from a particular place would not give rise to cause of action for launching a prosecution for the offence under the Negotiable Instruments Act. It was held and conclusively so that the cause of action arose from the communication of the notice. Thus, keeping in mind the salutary principles laid down by the Hon'ble Apex Court in the case of Harman Electronics (supra), this Court has no hesitation in arriving at a conclusion that only the Court which has the territorial jurisdiction to try the offences committed in Jaitsar, has the jurisdiction to entertain the complaint in this case. Resultantly, the present misc. petition succeeds and SB Criminal Misc. Petition No.1413/2010 Ram Kumar Avasthi. Vs. Darbara Singh. (17) now the learned Special Judicial Magistrate (NI Act Cases), Sri Ganganagar is directed to forward the complaint no.227/2009 to the concerned Court which has the jurisdiction to try the offences committed within the territorial area of Jaitsar. It is, however, made clear that if the case is being tried by the Special Judicial Magistrate (NI Act Cases), Sri Ganganagar as a part of the exercise of administrative powers of the Sessions Judge, Sri Ganganagar aimed at an expeditious disposal of the cases related to bouncing of cheques then this order shall not be construed to be an impediment for the case to be tried by the learned Special Judicial Magistrate. Stay petition also stands disposed of. (SANDEEP MEHTA), J.
S.Phophaliya