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In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE V.R. KINGAONKAR
Dipti Kumar Mohanty & Another
Versus
M/s. Videocon Industries Ltd. & Another
Criminal Writ Petition No.497 of 2008 with Criminal Revision Application No.250 of 2007 and Criminal Revision Application No.251 2007
Decided on : 17-02-2009
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Cause of action - The mere fact that notice was not issued from said bank would not clothe the jurisdiction on Court of Judicial Magistrate at said place. - A Single Judge of this Court in Ahuja Nandkishore Dongre V. State of Maharashtra, 2006 All MR (Cri) 3357, held that jurisdiction has to be gathered from place where the money was intended to be paid. So, the Court within whose jurisdiction the cheque was merely presented for realisation, cannot be said to have jurisdiction to try the offence. It is important to note that there is no written agreement between the parties to pay the amounts shown under the cheques in question at Ahmednagar. The cheques were not drawn on the Bank office at Ahmednagar. The mere fact that notice was issued from Ahmed Nagar would not clothe the jurisdiction on the Court of Judicial Magistrate at Ahmednagar. As stated before, the receipt of the notice and non-payment of the demanded amounts are ingredients which will have precedence over the place where from the notice of demand was issued. Therefore, the Court of Judicial Magistrate at Ahmednagar cannot have jurisdiction to entertain the complaints.
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Cause of action may arise at two different places having regard to commission of any particular act of offender. - The transactions pertaining to delivery of goods did not take place within the territorial jurisdiction of the Court at Ahme dnagar. The offence under Section 138 is completed after commission of several interconnected acts as stated below :
(a) Drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for the discharge in whole or in part of any debt or liability;
(b) Presentation of the cheque by the payee or the holder in due course to the bank;
(c) Returning of the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque.
(d) Giving of notice in writing to the drawer of the cheque within 15 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount; and
(e) Failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
The five (5) acts stated above need not, of course, take place at the same place. The cause of action is a bundle of facts. It is well-settled that cause of action may arise at two (2) different places having regard to commission of any particular act by the offender. The scope of Section 177 of the Criminal Procedure Code would encompass within its fold, such several places where parts of the cause of actions may arise.
Negotiable Instruments Act, 1881 - Section 138 - Jurisdiction of Court - Cheque dishonoured Orissa - Issued in Orissa - Notices of demand issued by Ahmednagar Court - Opposed as to want of jurisdiction - Held - In absence of any written agreement to pay amount at Ahmednagar, jurisdiction cannot be assumed to be with said Court merely because it is stated in demand notice that payment shall be made there - Ahmednagar Court has no jurisdiction to entertain case. - The cheques were issued and drawn on branch of the bank at Tangi/ Khurda (Orissa). The demand notice was served on the concerned accused at the places situated in Orissa State. In the absence of any written agreement to pay the amounts at Ahmednagar, the jurisdiction cannot be assumed to be with the said Court merely because it is stated in the demand notice that the payment shall be made there.
Court of Judicial Magistrate at Ahmednagar has no territorial jurisdiction to entertain the complaint cases. Hence, Criminal Writ Petition No. 497/2008 is allowed. The impugned order is quashed.
Negotiable Instruments Act, 1881 - Section 138 - Jurisdiction of Court - Held - Receipt of notice of non-payment of demanded amount are ingredients which will have precedence over place where from notice of demand was issued - Demand notice issued from Ahmednagar - In absence of any agreement in this regard, jurisdiction cannot be assumed to be with said Court merely because it is stated in demand notice that payment shall be made there. - In the absence of any written agreement to pay the amounts at Ahmednagar, the jurisdiction cannot be assumed to be with the said Court merely because it is stated in the demand notice that the payment shall be made there.
The receipt of the notice and non-payment of the demanded amounts are ingredients which will have precedence over the place wherefrom the notice of demand was issued. Therefore the Court of Judicial Magistrate at Ahmednagar cannot have jurisdiction to entertain the complaints.
Negotiable Instruments Act, 1881 - Sections 138 and 177 - Dishonor of cheque - Complaint - The heads offices of both the companies are at Mumbai the goods were delivered by branch offices at Bhubaneshwar - Demand notice also served in State of Orissa, in absence of any written agreement to pay the jurisdiction cannot be assumed to be with said Court. - The averments in the complaint that the company carries on business at Ahmednagar is of not much relevance in the fact situation of the present case. It need not be emphasized that the head office of both the companies is at Mumbai. The goods were delivered by the branch offices situated at Bhubneshwar. The cheques were issued and drawn on branch of the bank at Tangi/Khurda (Orissa). The dema nd notice was served on the concerned acc used at the places situated in Orissa State. In the absence of any written agreement to pay the amounts at Ahmednagar, the jurisdiction cannot be assumed to be with the said Court merely because it is stated in the demand notice that the payment shall be made.
Negotiable Instruments Act, 1881 - Section 138 - Proviso (a) Expression "the bank", mere presentation of cheque in question in bank of payee is of no consequence. - Expression "the bank" referred to in clause (a) to the Proviso to Section 138 of the Negotiable Instruments Act would mean the drawee bank on which the cheque is drawn and not any other bank. Obviously, mere presentation of the cheque in question in the bank of the payee at Ahmednagar is of no consequence. The argument of the advocate ’Pallad’ and learned senior advocate Mr. Dixit, on this score, is, therefore, unacceptable. The presentation of the cheques in question at Ahmednagar by itself cannot be a cause of action available within the territorial jurisdiction of that Court.
1. By this common judgment, the writ petition and criminal revision applications noted above are being decided together in as much as questions of law and facts involved therein are of identical nature.
2. A brief resume of background facts in the context of Writ Petition (Cri.W.P. No. 497/2008) may be stated. The petitioner and the respondent - M/s Videocon Industries Ltd. were having transactions. The petitioner is proprietor of M/s Monisha Agency. The respondent is a multinational Company. One of its branch office is at Bhubneshwar. The petitioner used to purchase goods from the respondent’s branch at Bhubneshwar. The petitioner allegedly issued a cheque dated 05-06-2006 for Rs. 3,00,000/- (rupees three lacs) in favour of Videocon International Ltd. The cheque was drawn on UCO Bank. The cheque was presented by the respondent in State Bank of India, Ahmednagar for encashment. It was sent by the said Bank to the drawee Bank i.e. UCO Bank, branch at Tangi (Orissa) for realization. The cheque was dishonoured by the payee Bank with remark "funds insufficient". The respondent issued demand notice dated 22-11-2006 to the petitioner by registered post. Inspite of service of the notice, the payment was not made within 15 days. Consequently, the respondent instituted a private complaint case (S.T.C. No. 8704/2006) against the petitioner for commission of offence under section 138 of the Negotiable Instruments Act.
3. The petitioner filed an application (Exh-20) to dismiss the complaint for want of jurisdiction. The petitioner contended before the learned Magistrate that his place of business is at Chandpur (Orissa). The transactions were with branch of the respondent (complainant) at Bhubneshwar (Orissa). The cheque was issued at Chandpur (Orissa) and was dishonoured within the territorial jurisdiction of the Criminal Court at Khurda (Orissa) or Bhubneshwar, but on basis of fake cause of action, the criminal complaint was instituted in the Court at Ahmednagar.
4. The learned Judicial Magistrate held that part of cause of action arose within jurisdiction of Ahmednagar Court. The learned Judicial Magistrate noticed that the payment was demanded under the demand notice from the petitioner at the branch office situated at Ahmednagar and, therefore, the complaint was maintainable within the jurisdiction of Ahmednagar. The application was accordingly rejected.
5. In the context of the two (2) revision applications, noted above, it may be stated that two (2) different cheques were issued by the respondent Smt. Manisha, who is proprietor of M/s Kalyani Agency, Bhubneshwar. The original complainant M/s Kitchen Appliances (India) Ltd. is the revision applicant of both the revision applications. The cheques were drawn on United Bank of India, branch at Khurda (Orissa). They were presented by the complainant at State Bank of India, Ahmednagar branch. They were sent to the payee Bank. Both the cheques were dishonoured due to insufficiency of funds in the account of the respondent. Then, demand notices were issued on 27-06-2007 through an advocate from Ahmednagar. The respondent gave reply dated 17-07-2007. The non-payment of the demanded amount at Ahmednagar, according to the complainant, gave cause of action to file the criminal complaints (S.T.C. No. 3824/2007 and S.T.C. No. 3825/2007).
6. In both the criminal complaint cases, similar applications were submitted by the respondent - Smt. Manisha for dismissal of the complaint cases on the ground of lack of territorial jurisdiction. The learned Judicial Magistrate held that no cause of action arose within the jurisdiction of the Court at Ahmednagar and, therefore, directed return of the complaint cases under section 201 of the Criminal Procedure Code to the complainant for presentation of the same at the appropriate Court having jurisdiction to entertain the complaints.
7. By filing criminal writ petition, the original accused in the criminal complaint case bearing S.T.C. No. 8704
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