2015 Supreme(Bom) 122

IN THE HIGH COURT OF BOMBAY AT GOA
U.V. BAKRE, J.

M/s. Agency Real Margao Pvt. Ltd., Represented by Authorised person Shri Nishikant Pednekar – Appellant
Versus
Subhash K. Parab – Respondent
Criminal Appeals No. 15, 16, 17 & 18 of 2013
Decided on: 12-02-2015

Headnote:NEGOTIABLE INSTRUMENTS ACT, 1881 - Sections 138 and 139 Presumption under Section 139. Failure of accused to rebut presumption under Section 139 of Act that cheques were issued in discharge of legally enforceable debt, renders acquittal of accused improper. It is pertinent to note that the complainant had produced on record letter of promotion which shows that it is the accused who had to write the accounts. In such circumstances; if the accused had not written the accounts, the complainant cannot be expected to produce the accounts. Be that as it may, if accounts are not maintained by the company, there is penalty. That does not give rise to any inference that there was no debt at all. In none of the cases cited by the counsel for the accused, it has been held that if the transaction of the cheque pertains to a company, the company must show the accounts in which said transaction figures and if this not done Section 138 of N.I. Act is not applicable. PW 1 deposed that the accused sold liquor belonging to the complainant and misappropriated the amount and towards the repayment of the said liability, the accused issued the cheques, in favour of the complainant. Along with the cheques which are subject-matter of the above cases, the accused had also issued three more cheques which were issued for the payment of the liquor purchased by the accused himself. Those cheques were subject-matter of cases No. OA 271/06/C; OA/446/06/C; and OA/409/06/C. PW 1 deposed that out of the total bills, the outstanding amount was Rs. 60,000/-, 69,005/-, and 1,19,606/-. At least one of the credit bills produced by PW 1, bearing No. 73143, dated 6.7.2005, produced in the said other cases; was for Rs. 1,19,606/- for which cheque No. 768996 dated 28.2.2006 was issued by the accused. It should be kept in mind that all the cheques were given by the accused together. Hence, when at least one of the bills was produced, it can be said, unless the contrary is proved by the accused, that all the cheques were issued in the discharge of legally enforceable debt or liability.

       NEGOTIABLE INSTRUMENTS ACT, 1881 - Sections 138 and 145 Complaint for dishonour of cheque. Since matter pending in Court at place ’C’, crossed stage of Section 145 of Act hence question of maintainability of complaint on account of territorial jurisdiction not arise. In the case of "Jinraj Paper Udyog", 2009 All MR (Cri) 89, (supra), the cheques were issued/delivered at Delhi; they were drawn on a bank at Delhi and accepted by the complainant; and they were presented to the bank at Delhi through payee’s bank at Nagpur and were returned unpaid by the bank at Delhi. Single Judge of this Court, in the case supra, held that the place where the debt or other liability was required to be discharged was of crucial importance in deciding jurisdictional issue and that the Court at Delhi had jurisdiction. In the present cases, the cheques, which were drawn on the Quepem Urban Co-operative Credit Society Ltd, Margao Branch were issued/delivered at Margao. They were presented to the same bank at Margao and were returned unpaid at Margao. However, the registered office of the complainant was at Panaji and the notice of demand was issued from Panaji. The J.M.F.C. in the order issuing process, had considered the Judgment of the Hon’ble Court in the case of "K. Bhaskaran v. Sankaran Vaidyan Balan" reported in 1999 Cri LJ 4606 : 1999 All MR (Cri) 1845 (SC) : 1999 (4) All MR 452 (SC)I and of this Court in the case of "Ahuja Nandkishore Dongre v. State of Maharashtra", reported in 2007 Cri LJ 115 : 2006 All MR (Cri) 3357, and had held that he had jurisdiction to try the case. However, it was made clear that the order shall not bar the accused from raising the issue of jurisdiction. After appearing before the J.M.F.C., the accused did not raise the issue of jurisdiction but answered to the substance of accusation framed against him and faced trial. No suggestion was put to PW 1 to the effect that the complaint was filed in the Court having no jurisdiction. Only during the final arguments before the J.M.F.C., the issue of jurisdiction was raised by the counsel for the accused. In the case of "Dasharath Rupsingh Rathod v. State of Maharashtra and another", (2014) 9 SCC 129 : 2014 All MR (Cri) 3333 (SC) : 2014 All SCR 3124, the Hon’ble Supreme Court has held that once the cause of action accrues to the complainant the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. However, the Hon’ble Supreme Court has made it clear that the category of complaint cases where proceedings have gone to the stage of Section 145(2) of the N.I. Act, or beyond shall be deemed to have been transferred by it from the Court ordinarily possessing territorial jurisdiction, as clarified, in the said Judgment, to the Court where it is presently pending. In the present cases the matters crossed the stage of Section 145(2) of the N.I. Act. The evidence was already over and even the judgments have been pronounced by the J.M.F.C., and now it is the appeals which have been heard. No prejudice of whatsoever has been shown to have been caused to the accused on account of the cases being tried and disposed of the J.M.F.C., Panaji. The question of now holding that complaints were not maintainable on account of territorial jurisdiction does not at all arise.