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2013 Supreme(Bom) 1052
High Court of Judicature at Bombay
ABHAY M. THIPSAY, J.
Sharda Polycolours Private Limited & Others
Versus
The State of Maharashtra & Another
Criminal Writ Petition No. 1159 of 2012
Decided on: 14-06-2013
For the Petitioners:Amit Khare, Advocate.
For the Respondent:Mrs. M.R. Tidke, APP, R2, Niranjan Mundargi i/b Yogesh Israni, Advocates.
Headnote:Negotiable Instruments Act, 1881 - Section 138 - Territorial jurisdiction of Court to entertain complaint under Section 138.
Where cheques was drawn on a Bank at Nagpur therefore depositing of cheques in Bank of Mumbai, cannot confer territorial jurisdiction upon Courts at Mumbai. - In the instant case, the jurisdiction in Mumbai Courts has been claimed only on the basis that the cheques in question were deposited in the banks situated at Mumbai. It is not in dispute that the cheques had been drawn on a bank situate at Nagpur. Merely because the cheques were deposited in banks situate in Mumbai, cannot, under the circumstances, confer any territorial jurisdiction upon the Courts at Mumbai.
Negotiable Instruments Act, 1881 - Section 138 - Cr PC, 1973, Section 178(d) - Jurisdiction of Court.
When an offence consists of severals acts done in different local areas, it may be tried by a Court having jurisdiction over any of such local areas. - The five acts said to be the components of the offence punishable under Section 138 of the Negotiable Instruments Act, as mentioned by the Supreme Court [(1999) 7 SCC 510] are as follows.
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 is by reference to Section 178(d) of the Code that it was mentioned that the offence could be tried by a Court having jurisdiction over any of the local areas in which any of the aforesaid five acts would be committed. Undoubtedly, clause (d) of Section 178 of the Code lays down that where an offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
The acts mentioned at serial No. 1 and at serial No. 5 are the acts performed by the offender. Interestingly, if the act at Serial No. 2 is to be treated as ’depositing the cheque by the payee/complainant in an amount held by him with his own banker it would be the ’act’ of the victim of the offence and not of the offender. The act mentioned at serial No. 3 is an act performed by the Drawee bank, who can be treated as the agent of the drawee i.e., the offender. Similarly, if the act at serial No. 4 is to be considered as mere ’giving’ of notice (without reference to the act of ’receiving’ the same, it would also be the ’act of the victim of the offence and not of the offender). It needs serious thinking whether the clause (d) of Section 178 of the Code, when it speaks of several acts done in different local area of which the offence in question consists, speaks of or contemplates, the acts of the victim or the complainant.
In the scheme of the relevant provisions, it cannot be doubted that the phrase ’several acts done in different local areas’ refers to the acts of the offender and not of the victim or the complainant. An offence consist of acts or illegal omissions of the offender and not of the victim (though effect on victim may be relevant in respect of some offences). It is, therefore, not possible to say that the Supreme Court contemplated the act No. 2 viz. Presentation of the cheque to the Bank as the lodging or depositing of the cheque by payee with his own account, which would only be the act of the victim. Similarly, the act No. 4 contemplated in the Supreme Court judgment could not have been mere giving of notice (which remains the act of victim) but must be understood as the ’giving of notice received by the drawer of the cheque’ (without which the act No. 5 - which is the act of the offender - Cannot take place and the offence would not be complete). Thus, the five ’acts’ having been mentioned in the context of Section 178(d) of the Code, must be construed as referring to the ’acts’ to the offender.
1999 (4) All MR 452 (SC) : 1999 All MR (Cri) 1845 (SC) Rel. on.
By this petition under Articles 226 and 227 of the Constitution of India, the petitioners who are the accused – accused nos.1, 2, 3 and 4 respectively – in Complaint Case No.493/SS/2011, pending before the Metropolitan Magistrate, 6th Court, at Mazgaon, Mumbai, challenge the territorial jurisdiction of the learned Magistrate to entertain the said complaint and try the case .
2. The petitioner no.1 is a Private Limited Company, and the other petitioners are the Directors thereof. The said case is in respect of an offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as “N.I. Act” for the sake of brevity), and has been initiated on a complaint filed by the respondent no.2 – also a Private Limited Company – herein.
For the sake of convenience and clarity, the respondent no.2 shall hereinafter be referred to as 'the complainant' and the petitioners as 'the accused'.
3. The case of the complainant company is that, it had, as per the orders placed by the accused from time to time, supplied Titenium Dioxide to the accused company, and that the accused issued eight cheques to the complainant towards the discharge of their liability. The complaint, however, has been lodged only with respect to six cheques, the particulars of which are mentioned at Sr. Nos.3 to 8 in the table contained in paragraph no.9 of the complaint. The cheques were deposited by the complainant company in their different bank accounts, held by them in Banks at Mumbai. The cheques were dishonored with the remark “payment stopped by the drawer”. Since after a demand notice calling upon the accused to make payment of the amounts mentioned in the said cheques, the accused failed to pay the amounts, the complaint came to be lodged.
The learned Magistrate after examining the matter, formed an opinion that a prima facie case for proceeding against the accused persons had been made out, and as such, ordered process to be issued against the accused persons requiring them to appear and answer to the charge of an offence punishable under section 138 of the Negotiable Instruments Act. Contending that the Magistrate lacked territorial jurisdiction to entertain the complaint and try the case, the accused persons approached the Court of Sessions for Brihan Mumbai by filing an application for revision. The learned Addl. Sessions Judge who heard the Revision Application, however, found no merit therein and dismissed the same.
4. It is under these circumstances, that the petitioners have approached this Court by filing the present petition under Articles 226 & 227 invoking its constitutional jurisdiction and also its inherent powers.
5. It was decided, by consent, that the petition would be heard finally at the admission stage itself. Accordingly, Rule was issued, made returnable forthwith by consent, and the petition was heard finally.
6. I have heard Mr. Amit Khare, learned counsel for the petitioners. I have also heard Mr.
Niranjan Mundargi, learned counsel for the accused.
7. Though a number of contentions have been raised in the petition, only the one relating to lack of territorial jurisdiction on the part of the learned Magistrate to entertain the complaint and try the case, was pressed in the course of oral arguments. The other, such as insufficiency of material to proceed against the other accused, except the accused company, were given up. What is contended by the petitioner is that the averments made in the complaint and the other material which was before the Magistrate clearly indicate that the Courts at Mumbai would have no territorial jurisdiction to entertain and try the case.
8. According to Mr. Mundargi, the learned counsel for the accused persons, the Courts at Mumbai clearly had jurisdiction to entertain and try the case, and that the impugned orders being proper and legal, no interference therewith, is warranted.
9. It is not in dispute, and is even otherwise clear from reading of the complaint itself that the ex
