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2010(1) Bankmann 320 (Bom.)
BOMBAY HIGH COURT
(GOA BENCH)
U.D. Salvi, J.
Crompton Greaves Ltd. —Applicant
versus
M/s. Shivam Traders, Thane
and Ors. —Respondents
Crl. Rev. Application No. 7 of 2009
Decided on 17.11.2009
For the Applicant:S.D. Lotlikar, Sr. Advocate with P.S. Lotlikar, Advocates.
For the Respondent:J. Godinho, Advocate.
IMPORTANT POINT
Law does not make payee’s banker through whom cheque is presented a ‘drawee’
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 126—Criminal Procedure Code , 1973—Sections 177 and 178—Dishonour of cheque—Return of complaint for want of territorial jurisdiction— Law does not make payee’s banker through whom cheque is presented a ‘drawee’— Such a banker acts as an agent of payee and not an agent of drawee Bank—Respondents-accused in order to come out of net of offence under Section 138, were expected to make good the payment due under dishonoured cheque to complainant at his undertaking at Ponda as required by demand notice —Failure of respondents-accused drawer of dishonoured cheque to make payment as demanded completes offence under Section 138 — Payee or holder in due course of cheque can legitimately expect payment of cheque amount either at the place where he ordinarily resides or carries on business or works for gain— Drawer of dishonoured cheque , accused have failed to make payment to complainant-payee at the place where payee worked for gain, in response to notice of demand made as per Section 138— Impugned order returning complaint to complainant passed by J.M.F.C. ‘C’ Court set aside—Case remanded back to J.M.F.C. ‘C’ Court for disposal according to law. Paras 14 to 17)
U.D. Salvi, J.—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 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. 11,46,276,86 ps. 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’/ complainant’s banker; and drawee Bank Janata Sahakari Bank Ltd., Khopat, Thane Branch 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 23-2-2007. 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 re -plied 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 Ahuja Nandkishore Dongre v. State of Maharashtra1 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 jurisdiction and the complaint unde
