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2010(2) Bankmann 586 (Ori.)
ORISSA HIGH COURT
B.P. Ray, J.
Madhu Mohanty —Petitioner
versus
State and Anr. —Opp. Parties
Criminal Misc. No. 222 of 2007
Decided on 19.2.2010
Counsel for the Parties:
for the Petitioner:Mr. S. Mohanty and Associates, Advocate.
For the Opp. Parties:Additional Government Advocate (OP1) and Mr. S. Nayak (OP2) Advocate.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Territorial jurisdiction for trial of offence—Cheque was issued at Bhubaneswar and same was presented and dishonoured at Bhubaneswar—Complainant was residing at Puri and she had option to file the case at Puri when notice was also issued from Puri—Court at Puri had territorial jurisdiction to try complaint.
Held: It is further contended that no part of the occurrence has taken place at Puri, therefore, learned Magistrate did not have the territorial jurisdiction to take cognizance and to proceed with the case. It is alleged that the cheque was issued at Bhubaneswar. The same was presented and was dishonoured at Bhubansewar, therefore, the complaint should have been filed at Bhubaneswar. Section 177 of the Code of Criminal Procedure envisages that every offence shall ordinarily be enquired into and tried in a Court within whose jurisdiction it was committed. The locality where the bank is situated cannot be regarded as the sole criterion to determine the place of offence. The place where the cheque was issued and was presented for collection are the places where the complaint can be lodged. But those are not the only places for institution of the case. The offence under Section 138 N.I. Act would not be completed with the dishonour of cheque. It attains completion only with the failure of the drawee of the cheque to pay the cheque amount within the expiry of 15 days. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Reliance is placed on the decision of the Hon’ble Supreme Court reported in (1999) 7 SCC 510, K. Bhaskar v. Sankaran Vaidhyan Balan & another.
The complainant resides at Puri, therefore, she has got option to file the case at Puri. Moreover, the notice was issued from Puri. In such circumstances, it cannot be held that the Court at Puri had no territorial jurisdiction. (Paras 5 & 6)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque due to Account freezed by IT Department—Accused was aware that account on which cheque was drawn was attached yet he issued same in discharge of legal debt—Prosecution was not liable to be quashed. (Para 7)
(iii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Petition to quash proceedings on plea that petitioner was prepared to pay double of the cheque amount though complainant was not prepared to accept the amount—Whether proceedings could be quashed? Yes.
Held: In my considered opinion, under the law when a person has tendered the amount payable by him he must be deemed to have discharged his obligation and the creditor is bound to accept the tender. When the petitioner has offered the whole amount along with interest but the complainant refused to accept it both the times, the petitioner could not be said to be guilty of non-payment of the amount.
I, therefore, direct, if the accused-petitioner deposits twice the amount for which the cheque was dishonoured within six weeks from today by account payee bank draft in the name of the complainant before the Trial Court, the I.C.C. Case No.289 of 2004 pending before the learned S.D.J.M., Puri shall be treated to be closed. Failure to deposit the said amount, the trial of the case shall proceed against the accused/petitioner in accordance with law. (Paras 11 and 12)
B.P. Ray, J.—In this application under Section 428, CrPC the accused petitioner assail the order dated 15.7.2006 passed by the learned SDJM, Puri rejecting his prayer to recall the order taking cognizance.
2. The complainant/opposite party instituted a case under Section 138 of the N.I. Act on the allegation that the accused was selling homestead lands at Puri. She paid a sum of Rs.1,10,000 to the accused to purchase a piece of land there. When the accused did not register the land in her favour, she demanded refund of the money together with interest. The accused in discharge of the said debt issued a cheque for Rs.l,67,000 in her favour. The complainant presented the cheque for collection, but the same was dishonoured. The complainant issued a notice demanding the payment. Since no payment was made within the stipulated period, the complainant lodged the complaint.
3. Learned Magistrate on consideration for the materials on record took cognizance of the offence and issued process against the petitioner.
The petitioner appeared before the learned Magistrate and filed an application for recall of the said order of taking cognizance. The Magistrate by the impugned order dated 15.7.2007 rejected the said application. The petitioner has approached this Court by filing the present application.
4. The question of recalling the order cognizance is no more res integra. The Hon’ble Apex Court in a decision reported in Adalat Prasad v. Rooplal Jindal & others1 has held that the Code of Criminal Procedure does not contemplate any provision authorizing the Court to recall the order by which it has taken cognizance of the offence. Recall of his order by the Magistrate amounts to review of the same and no such jurisdiction has been conferred on the Court under the Code. In view of such authority, no fault can be found with the impugned order rejecting the prayer for recalling the order taking cognizance.
5. It is further contended that no part of the occurrence has taken place at Puri, therefore, learned Magistrate did not have the territorial jurisdiction to take cognizance and to proceed with the case. It is alleged that the cheque was issued at Bhubaneswar. The same was presented and was dishonoured at Bhubansewar, therefore, the complaint should have been filed at Bhubaneswar. Section 177 of the Code of Criminal Procedure envisages that every offence shall ordinarily be enquired into and tried in a Court within whose jurisdiction it was committed. The locality where the bank is situated cannot be regarded as the sole criterion to determine the place of offence. The place where the cheque was issued and was presented for collection are the places where the complaint can be lodged. But those are not the only places for institution of the case. The offence under Section 138 N.I. Act would not be completed with the dishonour of cheque. It attains completion only with the failure of the drawee of the cheque to pay the cheque amount within the expiry of 15 days. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Reliance is placed on the decision of the Hon’ble Supreme Court reported in K. Bhaskar v. Sankaran Vaidhyan Balan & another.2
6. The complainant resides at Puri, therefore, she has got option to file the case at Puri. Moreover, the notice was issued from Puri. In such circumstances, it cannot be held that the Court at Puri had no territorial jurisdiction.
7. It is alleged that the cheque has been dishonoured due to “Account freezed by I.T. Deptt.”, therefore, it did no attract the provision of Section 138 N.I. Act. Admittedly, the accused had the liability to pay the complainant and in discharge of the legal debt the cheque was issued. Once a cheque is issued by a person, presumption under Section 139 of the Act must follow. The object of bringing Section 138, N.I. Act on the statute appears to inculcate faith in the efficac
