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2011(2) Bankmann 243 (Mad.)
MADRAS HIGH COURT
G.M. Akbar Ali, J.
Mohammed Haneef —Petitioner
versus
Shankarraj —Respondent
Criminal OP No. 3265 to 3268 of 2010
Decided on 13.6.2011
Held: Issuing of cheque per se is not an offence. Presentation of the cheque and the dishonour of the cheque by the drawee Bank may be referred to as commencement of the offence, which is followed by issuing of a statutory notice demanding payment and giving an opportunity to the drawee to avoid Criminal prosecution.
On receipt of such notice and on failure to make payment, the offence is completed and therefore, the cumulative effect of all the above acts has to be taken into consideration to decide the jurisdiction of the Court.
Therefore, this Court has already held that the jurisdiction for a trial of the offence shall be the place where (a) the cheque has been issued (b) the place where the cheque has been returned unpaid by the drawee Bank, and (c) the place where the statutory notice demanding payment of the cheque was served or received.
In the present case, though the cheque was issued at Bangalore and the notice was also served at Bangalore, the place where the cheque has been returned unpaid by the drawee Bank is only at Chennai.
In the additional common set of typed set of papers filed by the Respondent, the return memo of Central Bank of India having office at Montieth Road, Chennai has been furnished. The respondent has presented the cheque to his Bank viz., Indian Bank, Padi Branch, Chennai and the same has been forwarded to Central Bank of India, Montieth Road, Chennai where it is returned with an endorsement stating “exceeds arrangement”. Though the cheque was drawn on the Central Bank of India, Indira Nagar, Bangalore Branch, it has been returned by the Central Bank of India, Montieth Road, Egmore Branch, Chennai.
Therefore, the Court which has jurisdiction is neither the Magistrate’s Court at Bangalore nor the Judicial Magistrate Court, Ambattur, Chennai, but the Metropolitan Magistrate’s Court at Egmore, Chennai.
Therefore, initiation of proceedings and taking cognizance by the learned Judicial Magistrate, Ambattur, Chennai is not proper but it is only a curable defect which can be rectified by giving an opportunity to the respondent to withdraw the complaint and present the same before the jurisdiction Court at Egmore, Chennai.
In the result, the Criminal Original Petition is disposed of with a direction to the respondent to withdraw the complaint pending before the Judicial Magistrate, Ambattur and present the same before the jurisdictional Metropolitan Magistrate Court at Egmore, Chennai within a period of four weeks from the date of receipt of copy of this order. (Paras 30 to 37)
G.M. Akbar Ali, J.—The petitions are filed seeking a direction to call for the records in C.C. Nos.437, 438, 439 & 440 of 2009 on the file of the learned Judicial Magistrate,Ambattur.
2. The Respondent has initiated proceedings under Sections 138 & 142 of Negotiable Instruments Act before the learned Judicial Magistrate Court, Ambattur against the Petitioner. In the Complaint, it is alleged that the Petitioner has taken a sum of Rs.35,00,000 assuring an admission for a post graduate course in M.S. (Ortho) for the Respondent’s son Dr. S. Manivannan. Since he did not obtain any admission, he is liable to pay the amount.
3. It is further submitted that the Petitioner executed promissory notes dated 8.3.2009 and also issued four cheques dated 26.3.2009 each for Rs.7,50,000. He also assured the complainant that he will pay the amount within sixty days. Since the amount was not paid, the cheques were presented by the complainant in his Bank on 5.9.2009 and the cheques were dishonoured by the petitioner’s banker on 7.9.2009. The complainant issued a statutory notice on 23.9.2009 demanding repayment within fifteen days which was received by the petitioner who also sent a reply on 30.9.2009. Since the demand made in the notice was not complied with, the respondent has initiated the abovesaid proceedings. The learned Magistrate had also taken cognizance of the offence.
4. Challenging taking cognizance of the offence by the learned Judicial Magistrate, Ambattur, the petitioner is before this Court on the sole ground that the learned Judicial Magistrate has no jurisdiction to take cognizance.
5. Mr. Abudu Kumar Rajarathinam, learned Counsel for the petitioner would submit that the entire transaction took place only at Bangalore and the cheque was drawn on Central Bank of India, Indira Nagar Branch, Bangalore and the same has been returned dishonoured only by the drawee Bank, the notice has been received by the petitioner only at Bangalore and therefore, the learned Judicial Magistrate, Ambattur had no jurisdiction.
6. The learned Counsel relied on the judgment reported Harman Electronics Pvt. Ltd. v. National Panasonic India Pvt. Ltd.1 (hereinafter referred to as Harman Electronics Case).
7. The learned counsel also relied on an order of this Court dated 1.2.2011 in Criminal O.P. No. 23732 and 23733 of 2010.
8. In the case of Harman Electronics Pvt. Ltd. and Anr. v National Panasonic India Pvt. Ltd. (supra), the Hon’ble Supreme Court held as follows:
“13. It is one thing to say that sending of a notice is one of the ingredients maintaining the Complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The Proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in Provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act are intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a Complaint. As it is only on receipt of the notice that the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the Proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would.”
9. Following the abovesaid decisions, this Court has also held in Criminal O.P. No. 23732 & 23733 of 2010 that place of issuance of notice will not give rise to jurisdiction.
10. On the contrary, Mr. Laxmi Rajarathinam, learned Counsel for the respondent would submit that the cause of act
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