Back
BOMBAY HIGH COURT
K.U. Chandiwal, J.
H.D.F.C. Bank Ltd. —Petitioner
versus
M/s. New Tech Forge and Foundry
Ltd. —Respondent
Writ Petition Nos. 1359, 1360, 1361 of 2011
Decided on 25.07.2012
For the Petitioner:Mr. A.H.H. Ponda with Mr. Sunil D’Souza, Advocates.
For the Respondent Nos. 1 to 4:Mr. Apoorva Vakil with Mr. Hemang Jariwala i/b. Auroma, Advocate.
For the State:Mr. Rajesh More, APP Advocate.
IMPORTANT POINT
Mere presentation of cheque for collection cannot confer territorial jurisdiction on Court.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138 and 141—Criminal Procedure Code, 1973—Sections 177, 178 and 482—Dishonour of cheque—Complaint—Territorial jurisdiction of Court—There was absolutely no financial transaction with H.D.F.C. Bank at any of its Branch by Respondents—Effect of amalgamation made Petitioner-Bank to step in shoes by payee and has to encash cheques issued in favour of Centurion Bank as dishonour thereof has taken place at Ahmadabad on its presentation—Petitioner could have deposited cheques at Ahmadabad, as it has a branch at Ahmadabad but Petitioner chose to prosecute matter from its registered office at Mumbai—There is no question of inconvenience to Petitioner - Bank to prosecute its cause from Ahmadabad—Mere presentation of cheque for collection by Petitioner at Mumbai alone would not be enough to exhaust territorial jurisdiction for Mumbai—Court at Mumbai has no territorial jurisdiction to try complaint and complaint was rightly returned under Section 201(a) of Cr.P.C., for presentation to proper Court—Writ petitions dismissed. (Paras 13, 15 to 17)
(ii) Criminal Procedure Code, 1973—Sections 397, 401 and 482—Revision— Provisions of Section 482 of Cr.P.C. confers a separate and independent power of High Court alone in cases where grave and substantial injustice has been done and where process of Court has been seriously abused—Powers under Section 482 of Cr.P.C. would not be within bracket of revisional powers as separate remedy is provided under Section 397, 401 of Cr.P.C.—Existence of alternate remedy is a bar for invocation of inherent powers under Section 482 of Cr.P.C. or under Article 227 of Constitution of India—Remedy of revision could not be overlooked. (Para 14)
K.U. Chandiwal, J.—Heard finally. Rule returnable forthwith.
2. Petitioner (HDFC Bank Ltd.) questions legality of order dated 5th October 2010 passed by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai in the three proceedings initiated for an offence punishable under Section 138 r/w. 141 of Negotiable Instruments Act, 1881, thereby the learned Judge has observed the Court at Mumbai has no territorial jurisdiction to try the complaint and hence, the complaint was returned under Section 201(a) of Cr.P.C., for presentation to proper Court.
3. The Respondents M/s. New Tech Forge & Foundry Ltd. and Ors. had availed financial facilities from Centurion Bank of Punjab Ltd. (For short Centurion Bank). The Respondent - Company had issued certain cheques in favour of Centurion Bank. On 23.05.2008, Centurion Bank was amalgamated with the H.D.F.C. Bank Ltd. (Petitioner). After amalgamation, H.D.F.C. Bank sought to release the cheques by presenting them for collection at Mumbai. However, same were dishonoured by the partners of Respondents at Rajkot. The Petitioner had dispatched statutory notice to the Respondents from Mumbai demanding payment at Mumbai but no payments were made and hence, the complaint for an offence punishable under Section 138 r/w. 141 of Negotiable Instruments Act is filed at Mumbai.
4. In earlier round of litigation, issuance of process was questioned and this Court, in Criminal Writ Petition No.1388 of 2009 and group matters on February 17, 2010, directed the learned Metropolitan Magistrate to cause enquiry in terms of Section 202 (amended provisions) of Cr.P.C. and to pass appropriate order. It was, in this situation, the impugned orders are recorded by the learned Metropolitan Magistrate.
5. Mr. Ponda, learned Counsel for the Petitioner submits that the HDFC-Bank is shuttling for four years for its just cause. The procedure that has been followed by the learned Judge, does not contemplate exercise of return of complaint by virtue of Section 201(a) of Cr.P.C. The territoriality is never a ground for competence of the learned Judge to send a complaint to the appropriate Court. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises.
6. The learned Counsel has relied to the Judgment in the matter of Trisuns Chemical Industry V/s. Rajesh Agarwal and Ors. (1999) 8 SCC 686, the Hon’ble Supreme Court, in paragraphs 14 and 15 observed as under :-
“14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to make cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post- cognizance stage and not earlier.
15. Unfortunately, the High court, without considering any of the aforesaid legal aspects rushed to the erroneous conclusion that the “Judicial Magistrate of the First Class, Gandhidham has no power to take cognizance of the offences alleged” merely because such offences could have been committed outside the territorial limits of the State of Gujarat. Even otherwise, without being apprised of the fuller conspectus a decision on the question of jurisdiction should not have been taken by the High Court at a grossly premature stage as this.”
The learned Counsel submits that the scheme in terms of prosecution under Section 138 of Negotiable Instruments Act and jurisdiction of the Court is well defined in catena of Judgments. He has relied upon the following Judgments:-
1. Kirti Dal Udyog, Nagpur v. Bhanwarlal Ramchandra Chandak.1
2. Hemlata Raghunath Pendharkar v. Jaswantsingh Rajaram Sonawane & Anr. (Bombay High Court)2
3. Subhiksha Tradi
