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In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE U.D. SALVI
Crompton Greaves Ltd. Appellant
Versus
M/s. Shivam Traders & Others Respondent
Criminal Revision Application No.7 of 2009
Decided on : 17-11-2009
Negotiable Instruments Act, 1881 - Sections 138 and 126 - Territorial jurisdiction - Complainant issued notice - Accused could not receive and neglected dues - Complaint under Section 138 - Replied challenging jurisdiction of Court - Trial Court held - Transaction of goods taken at place beyond jurisdiction of Court - Cheque drawn in Thane - Appellant submitted under Section 126 of Act - Payment by cross cheque is expected at any place where payee situates - Respondents in order to make payments were expected to make good under dishonored cheque - Magistrate remained unmind-full of fact that drawer of dishonored cheque failed to make payment to complainant at place where payee worked for gain - Order impugned set aside. - Notice in writing demanding the payment of the amount of cheque dishonoured within 15 days from the date of the receipt of the said notice was addressed on behalf of the undertaking/electrical division of M/s. Crompton Greaves Ltd. at Ponda, Goa to the respondent accused. The complaint also reveals that the applicant complainant M/s. Crompton Greaves Ltd. was operating its electricaldivision at Betoda, Ponda, Goa. This fact was reiterated in verification Exh. 9. The respondents/accused in order to come out of the net of the offence under Section 138 of the N.I. Act, were expected to make good the payment due under the dishonoured cheque to the complainant at his undertaking at Ponda as required by the demanded notice dated 31.1.2007. Failure of the respondents/ accused - drawer of the dishonoured cheque to make payment as demand completes the offence under Section 138 of the Act.
The payee or holder in due course of the cheque can legitimately expect the payment of cheque amount either at the place where he ordinarily resides or carries on business or works for gain.
It is difficult to concur with the view that the judgment of the learned Single Judge of Nagpur Bench in Ahuja Nandkishore Dongre’s case is directly contrary to the law laid down by the Apex Court in K. Bhaskaran’s case.
The accused was required to make the payment to the complainant at his undertaking at Ponda, his view regarding the territorial jurisdiction to enquire and try into an offence in the said case was swayed by the judgment in Ahuja Dongre’s case merely for the reason that business transaction had not taken place in Ponda and the money must be paid at the place where the business transaction takes place.
The impugned order dated 16.11.2008 returning the complaint to the complainant passed by JMFC, ’C’, Court, Ponda is set aside. The case is remanded back to the learned JMFC, ’C’ Court at Ponda for disposal according to the law.
1. A question as to the territorial jurisdiction of J.M.F.C. 'C' Court, Ponda, Dist. North Goa to try an offence punishable under Section 138 of N.I. Act arises in the present Criminal Revision Application. Facts giving rise to the aforesaid offence are as under:
The respondents / accused Nos.2 and 3 proprietors of the respondent / accused No.1 Shubham Traders had issued three post dated cheques in the total sum of Rs.11,46,276.86ps. in favour of the appellant/ complainant M/s. Crompton Greaves Ltd. having its registered office at Mumbai and its Electric Division at Ponda, Goa towards full and final settlement of their dues arising out of purchase of the electrical items. One of these cheques being cheque No.963905 dated 2.1.2007 for Rs.10,55,574/- drawn on Thane Janata Sahakari Bank, Khopat, Thane branch was presented within the validity period for realisation through Union Bank of India, Ponda, Goa Branch-appellant's/complainant's banker; and drawee bank Janata Sahakari Bank Ltd, Khopat, Thane Brnach had dishonoured and returned the said cheque on the ground that the respondents/accused had closed their account with return memo dated 12.1.2007. The appellant/complainant, therefore, issued a legal notice dated 31.01.2007 through its Advocate from Ponda, Goa calling upon the respondents/accused to effect the payment of the cheque amount within 15 days from the date of the receipt of the said notice to the appellant/complainant Company having its undertaking at Ponda, Goa. The respondents/ accused received the said legal notice on 08.02.2007. However, the respondents/accused failed and neglected to effect the payment of the cheque within stipulated period of 15 days i.e. on or before 23.02.2007. Notice remained unreplied. The cause of action, according to the appellant/complainant, for filing the said complaint arose on 24.02.2007. Eventually, the complaint in respect of the commission of the offence under Section 138 of the N.I. Act was lodged against the respondents/accused on 07.03.2007 in the Court of J.M.F.C, Ponda. After recording the verification of the complainant, the learned J.M.F.C., Ponda issued process under Section 138 of N.I. Act against the respondents / accused.
2. On 03.10.2008, the respondents/ accused moved an application for returning the complaint to the complainant for want of jurisdiction. The appellant/complainant replied the said application. After hearing the parties, the learned J.M.F.C, Ponda allowed the application dated 03.10.2008 and returned the complaint to the complainant for its presentation before the Court of competent jurisdiction.
3. The learned J.M.F.C, Ponda concluded that the transaction of the purchase of electrical goods had actually taken place outside its jurisdiction and the cheque drawn on the bank at Thane was issued by the respondents/ accused at Mumbai i.e. outside its jurisdiction. The learned J.M.F.C. did consider the fact that the complainant has its undertaking in Ponda, cheque was presented at Ponda, returned unpaid at Ponda, demand notice was issued in Ponda, monies against the cheque amount were required to be paid to the complainant at Ponda, and further concluded with reference to the judgment reported in 2007 Criminal Law Journal 115-Ahuja Nandkishore Dongre Versus State of Maharashtra that monies are always required to be paid at the place where the business transaction had taken place and, therefore, the aforesaid considerations flowing from the aforesaid facts are not the grounds to file the complaint before it. On this premise the learned J.M.F.C. returned the complaint to the appellant/ complainant for presenting the same before the Court of competent jurisdiction.
4. Learned Advocate Lotlikar for the appellant/complainant submitted that issuance of cheque authorizes the payee named therein to receive the payment at any place lawfully and, therefore, the place of presentation of cheque to its banker Union of India, Ponda, Goa Branch spells out a jur
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