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In the High Court of Bombay at Goa
U.V. BAKRE, J.
Crompton Greaves Limited
Versus
Kantibhai, Prop. Mahavir & Another
CRIMINAL APPEAL NO. 77 OF 2009
Decided on: 20-04-2012
Held - Merely because the complainant has fan and electricity concerning the accused, Ponda Court would not have territorial jurisdiction on this ground Impugned order is quashed.
Cheque may be presented by the holder of the cheque to the drawee bank in person if the cheque is payable to the bearer or order. However, where the cheque is crossed, it would be required. to be presented by the holder to the drawee bank only through a bank for being credited to his account. Where the holder of the cheque maintains an account in the same branch of the bank on which the cheque is drawn the drawee bank would credit the account of the holder if there is available balance in the account of the drawee. In case of insufficiency of funds in the account of the drawer, the drawee bank would return it to the holder in that very branch and that very place. This situation presents no difficulty as the cheque is returned to the holder at the branch on which the cheque is drawn. However, when the holder of the cheque has an account in a different bank, perhaps in a different town, he would deposit the cheque in his bank (collecting bank). The collecting bank would then present the cheque to the drawee bank either by itself or through the network of its branches. The cheque would be presented at the branch of the drawee bank where the drawer of the cheque maintains the account. If the balance in drawee’s account is adequate, the drawee bank would pay the amount of the cheque when the cheque is presented to it by the collecting bank through clearing house or through any other mechanism of payment recognised and approved by the banking system. Where however the balance in the account of the drawer is inadequate, the drawee bank would return the cheque unpaid to the collecting bank; the cheque is returned and delivered to the collecting bank there’ and then or through the clearing house in the same town, in the ordinary course. When the collecting bank presents the cheque to the drawee bank, it acts an agent of the holder of the cheque and not as an agent of the drawer of the cheque.
The reference made to the Hon’ble Division Bench, in the present appeal, was only on a limited point as to whether the Court In whose jurisdiction the payee or holder in due course of cheque ordinarily resides or carries on business or works for gain or for that matter has a branch office shall have jurisdiction to enquire into or try the offence under Section 138 of the Act or not. It is seen that the Division Bench, to which the reference was made in this appeal, has not held that the complaint cannot be filed at the place of the collecting bank. A perusal of the Judgment of the Hon’ble Division Bench of the High Court in Preetha S. Babu (supra), reveals that the Division Bench has agreed with the Single Judge’s view in the case of Ahuja Nandkishore Dongre v. State of Maharashtra, 2007 (1) Bom CR (Cri) 1031, to the extent that ’the bank’ referred to in Clause (a) to proviso to Section 138 of the Act would mean the drawee-bank on which the cheque was drawn. But the Division Bench has observed that the view taken by the Single Judge in that case in the context of jurisdiction of the Court to entertain complaint under Section 138, that the cheque has to be presented to the drawee-bank at the place mentioned in the cheque and only the Court within whose jurisdiction, the drawee bank is situated will have jurisdiction to entertain the complaint and not the Court at another place where it is presented for realization needs to be reconsidered by a larger Bench in an appropriate case. The judgment of the Hon’ble Division bench in the case of Preetha S. Babu (supra), is an authoritative pronouncement based on the Judgment of the Hon’ble Supreme Court in the case of K. Bhaskaran (supra). It is an accepted rule or principle that the statement of law by a Bench is considered binding on a Bench of the same or lesser number of Judges. The principle held in paragraph 31 of the judgment in Preetha’s case is binding on the Court. Therefore since the cheque was presented and returned unpaid/dishonoured by ICICI Bank at Ponda, the Ponda Court has jurisdiction to entertain and try the case.
This is complainants' appeal from Order dated 9th April, 2009 passed by the learned Judicial Magistrate First Class, Ponda (trial Magistrate, for short) in Criminal Case No.582/OA/2006/C holding that he has no territorial jurisdiction to entertain the said complaint.
2. The said complaint is in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the Act, for short).
3. The complainant is a company registered under the Companies Act, 1956 and having its registered office at Worli, Mumbai and various divisions including Fan and Electrical Division at Bethoda, Ponda Goa. The accused was the authorized dealer of the complainant for various ranges of electrical items. The accused had from time to time placed orders with the complainant and the complainant had sold, supplied and delivered to the accused various electrical items. According to the complainant, the accused had accepted the delivery of the same without raising any dispute as to its quality and/or quantity thereof and the complainant thereafter had raised, issued and delivered to the accused their invoices, which were accepted by the accused, and the complainant was assured that the amount there under will be paid very shortly. The complainant has alleged that after a number of requests and reminders being made by the complainant, the accused effected various part payments from time to time and towards the balance payment, the accused issued in favour of the complainant a cheque No. 318590 duly signed & filled in, except the amount in figures and words and the date, as the accused was not aware of the exact amount due and payable by him to the complainant on the day when he issued the said cheque. The complainant has further stated in the complaint that the accused requested the sales representative of the complainant to fill the amount after adjusting various credit notes etc. and had assured that the said cheque will be honoured on its presentation. The said cheque was drawn on C. K. P. Co-Operative Bank Ltd., Thane. It is submitted by the complainant that later on the amount of Rs. 1,05,892.82 paise was found legally due and payable by the accused to the complainant and therefore the blanks in the said cheque were filled in. The cheque was presented by the complainant to their bankers namely ICICI Bank Ltd., Ponda Branch for realization. The said cheque was returned unpaid on 20/07/2006. A legal notice was therefore sent from Ponda by the complainant who is dated 26/07/2006 and the same was received by the accused at Thane on 03/08/2006. The accused failed to make the payment of the cheque amount which was demanded and replied the said notice by letter dated 09/08/2006. Therefore, the complainant lodged the complaint on 04/09/2006 in the Court of Judicial Magistrate First Class at Ponda, Goa, under section 138 of the Act.
4. Process was issued by the trial Magistrate against the accused, who pleaded not guilty to the substance of accusation that was explained to him. The complainant adduced its evidence & tendered the affidavit-in-evidence of its power of attorney holder. He was cross-examined. He has produced various documents on record. The statement of the accused came to be recorded under section 313 of the Code of Criminal Procedure. When the case was pending for defence evidence, the accused filed an application dated 20/03/2009 thereby challenging the territorial jurisdiction of the trial Magistrate.
5. The contention of the accused was that the the cheque in question was drawn on C. K. P. Co-Operative Bank Ltd., Gokhale Road, Thane and was handed over to the complainant at its office at Worli and the payment against the said cheque was stopped at Thane & therefore the Trial Magistrate had no jurisdiction to entertain the complaint. The accused prayed that the complaint be returned to the complainant for presentation to the proper Court. He placed reliance on the Judgment of the Aurangabad Bench of this Court in
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