BOMBAY HIGH COURT
U. V. Bakre, J.
M/s. Agency Real Margao Pvt. Ltd. —Appellant
versus
Shri Subhash K. Parab —Respondent
Criminal Appeals No.15, 16, 17, and 18 of 2013
Decided on 12.2.2015

Headnote:Negotiable Instruments Act, 1881 — Sections 138, 139 and 145(2) — Dishonour of cheque — Territorial jurisdiction of Court — Complainant company carrying on business of selling liquor in Goa and in rest of India — Accused was employee of the complainant company and had allegedly collected payment made by customer on behalf of complainant company as representative of the complainant — However, according to the complainant, the accused did not pay the money collected from the customers to the complainant but issued cheques in favour of the complainant towards the liability — Those cheques when presented were dishonoured for reasons ‘funds insufficient’ — Magistrate acquitted the accused and held that the complainant could not prove that the cheques were issued towards discharge of legally enforceable debt — Magistrate held that the accused had rebutted the presumption available to the complainant u/s 139 of the Act — During final arguments before the Magistrate (Panaji Court), question of jurisdiction of Panaji Court was raised — Matters had crossed the stage of section 145(2) of the act —No prejudice had been shown to have been caused to accused on account of cases being tried by Panaji Court — Cheques drawn on Margao Branch were presented to the same bank at Margao and were returned unpaid at Margao — Registered office to the complainant was at Panaji and notice of demand was issued from Panaji — Whether acquittal of accused as recorded by the Magistrate was sustainable — (No) — Question of now holding that complainants were not maintainable on account of territorial jurisdiction does not arise.

       Held: In the case of “Jinraj Paper Udyog” (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. Learned 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 drawnon 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 learned J.M.F.C. in the order issuing process, had considered the Judgment of the Hon’ble Supreme Court in the case of “K. Bhaskaran Vs. Sankaran Vaidyan Balan” reported in 1999 Cri. L. J. 4606 and of this Court in the case of “Ahuja Nandkishore Dongre Vs. State of Maharashtra”, reported in 2007 Cri. L. J. 115 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 learned 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 PW1 to the effect that the complaint was filed in the Court having no jurisdiction. Only during the final arguments before the learned J.M.F.C., the issue of jurisdiction was raised by the Counsel for the accused. In the case of “Dasharath Rupsingh Rathod Vs. State of Maharashtra” & Anr.”, [(2014) 9 SCC 129], 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 learned 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 learned 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.

       After knowing the principles laid down in the various cases as above, let us proceed to deal with the facts of the present cases. It is pertinent to note that in the present cases, the execution of the cheques has not been denied by the accused. On account of the above, In view of the Section 139 of the N.I. Act, there was presumption in favour of the complainant that said cheques were issued in discharge of legally enforceable debt or liability favouring the complainant and it was for the accused to rebut the said presumption. It is seen that though according to the accused, letter dated 06.07.2005 and the subject cheques were obtained from him by force or coercion, however, the accused did not lodge any police complaint against the directors of the complainant and others nor did he instruct his banker to stop payment. The complainant had given statutory notices to the accused as required under Section 138(b) of the N.I. Act, and same were served upon the accused though they were not accepted by him and thus were returned “unclaimed” to the complainant. The accused therefore is deemed to have the statutory notices. However, the accused did not reply the same. Adverse inference is bound to be drawn as against the accused. Merely because in the said letter dated 06.07.2005, it is mentioned that the same is in the handwriting of the accused and that it is written without any coercion or pressure of any one and that the accused had signed the cheques on his own as matter of amicable settlement, that cannot establish that there was coercion on the accused to sign the letter. Such an observation of the learned J.M.F.C. is without any basis. In fact, there was no reason for the accused not to lodge any police complaint or not to instruct the bank to stop payment and even there was no reason for the accused not to reply the statutory notices. According to the accused, on 6.7.2005 at around 10.00 a.m., he was called along with the cheque books and other documents relating to Malax Traders in the office of the complainant. The accused had not gone to the office of the managing director on 06.07.2005 with the cheque books of Malax Traders, but with his private cheque book or cheques. The coercion or threatening had not started before the accused had gone to the office. There was no reason at all for the accused to carry with him his private cheque book or cheques. It should be kept in mind that the accused had raised industrial dispute. In such circumstances, it cannot be at all be said that the accused had successfully discharged the initial reverse burden to show that the said cheques were not issued towards the discharge of legally enforceable debt or liability.

       In the circumstances above, the complainant has proved its case beyond reasonable doubt. The learned J.M.F.C. has wrongly acquitted the accused in all the above cases. The impugned Judgment and Order cannot sustain and is bound to be quashed and set aside. Parties were notified to remain present today. However, neither the accused nor his counsel is present. Hence, the accused could not be heard on the point of sentence. Mr. Shirodkar, learned Counsel for the complainant submitted that the accused was an employee of the complainant and hence maximum punishment should be imposed upon him. Considering the facts and circumstances of the case, I am of the view that the sentence which follows should serve the ends of justice. (Paras 12, 22, 24)

       Result: Appeal Allowed.