Back
2013 Supreme(UK) 531
SUPREME COURT OF INDIA
Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya and
Hon’ble Mr. Justice V. Gopala Gowda
Criminal Appeal No. 1997-98 of 2013
DEVENDRA KISHAN LAL DAGALIA – Appellant
Versus
DWARKESH DIAMONDS PVT. LTD. & ORS. – Respondents
Decided on : 25.11.2013
For the Respondents:Mr. Uday B. Dube, Mr. Sanjay Kharde, Ms. Asha Gopalan Nair, Mr. Mohit Monga, Mr. H.K. Monga and Parmanand Gaur, Advocates
Headnote:(A) Criminal Procedure Code, 1973, Secs. 204, 201 — Order of issuance of summons u/s 204, Cr.P.C. — Recall or review of such order u/s 201 by the Magistrate — Legality — Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons u/s 204, Cr.P.C. — His jurisdiction ceases to recall and review the order by exercising his power u/s 201, Cr.P.C. since he has no power of review including inherent power to do so. (Paras 8, 11, 13, 14, 15 and 16)
(B) Negotiable Instruments Act, 1881, Sec. 138 and Criminal Procedure Code, 1973, Sec. 178(d) — Offence u/s 138, Act 1881 can be completed only with the concatenation of — Following acts are components of the said offence : (1) Drawing of the cheque — (2) Presentation of the cheque to the bank — (3) Returning the cheque unpaid by the drawee bank — (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount — (5) Failure of the drawer to make payment within 15 days of the receipt of the notice — It is possible that each of these five acts could be done at 5 different localities — And concentration of all the above five is a sine qua non for the completion of the offence u/s 138 — Thus, if any one of these five different acts was done in a particular locality — The Court having territorial jurisdiction on that locality can become the place of trial for the offence u/s 138, N.I. Act — And the complainant can choose any one of those courts having jurisdiction over any one of the local area within the territorial limits of which any one of the five acts was done. (Para 17)
¼v½ n.M izfØ;k lafgrk] 1973] /kkjk 204] 201 & U/s 204, Cr.P.C. lEeu tkjh djus ds vkns’k & U/s 201, eftLVªsV }kjk dfFkr vkns’k dks iqu% cqykuk ;k iqujkoyksdu & oS/krk & ,d ckj tc eftLVªsV vijk/k dk laKku dj viuh jk; cukrk gS fd i;kZIr vk/kkj Fks dk;Zokgh ds fy, vkSj u/s 204, Cr.P.C. lEeu tkjh djrk gS & vc u/s 201, Cr.P.C. vius vf/kdkjksa dk iz;ksx dj vkns’k dks iqu% cqykus ;k iqujkoyksdu djus dh mldh vf/kdkfjrk lekIr gks tkrh gS pw¡fd mlds ikl ,slk djus ds fy, varfuZfgr vf/kdkj o iqujkoyksdu ds vf/kdkj ughaA
¼izLrj 8] 11] 13] 14] 15 vkSj 16½
¼c½ ijkØE; fy[kr vf/kfu;e] 1881] /kkjk 138 vkSj n.M izfØ;k lafgrk] 1973] /kkjk 178(d) & U/s 138, Act 1881 vijk/k iw.kZ gksrk gS J`a[kyk ls & ÑR; tks dfFkr vijk/k ds la?kVd gSa & ¼1½ pSd dk vkgj.k & ¼2½ cSad esa pSd dk izn’kZu & ¼3½ Hkqxrku dÙkkZ cSad ls fcuk Hkqxrku ds pSd dh okilh & ¼4½ cSad ds vkns’kd dh fyf[kr vfèklwpuk }kjk pSd jkf’k ds Hkqxrku dh ek¡x & ¼5½ vf/klwpuk feyus ds 15 fnu ckn Hkh pSd vkns’kd }kjk Hkqxrku djus esa vlQy gksuk & ;g laHkkfor gS fd ;g ik¡pksa ÑR; 5 fofHké LFkkuksa ij gq, gksa & vkSj bu lHkh ikapksa ÑR;ksa dh ,dkxzrk vfuok;Z gS u/s 138 vijk/k iw.kZ djus ds fy, & bl izdkj bu ik¡pksa ÑR; esa ls dksbZ ,d ÑR; fdlh fof’k”V LFkku ij dkfjr gks rc ml LFkku dh vnkyr ftldh {ks=kf/kdkfjrk ml {ks= esa gks u/s 138 N.I. Act vijk/k ds fy, okn LFky cu ldrh gS vkSj f’kdk;rdÙkkZ bu esa ls dksbZ Hkh vnkyr pqu ldrk gS ftldh vf/kdkfjrk ml {ks= esa gks tgk¡ mldh {ks=kf/kdkj ifjlhek gks vkSj ogk¡ ik¡pksa esa ls dksbZ Hkh ,d ÑR; dkfjr gqvk gksA ¼izLrj 17½
SUDHANSU JYOTI MUKHOPADHAYA, J. — Leave granted. These appeals have been preferred by the appellantcomplainant against the judgment and order dated 6th December, 2012 passed by the High Court of Judicature at Bombay in Criminal Writ Petition Nos.3992 and 3993 of 2011. By the impugned judgment the High Court set aside the order passed by Sessions Judge in CRA No.301 of 2010 and upheld the order passed by the Special Metropolitan Magistrate.
2. The appellant filed complaints being CC No.3142/SS/2008 and CC No.3286/SS/2008 under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘the N.I. Act’) in the Court of the Special Metropolitan Magistrate at Small Causes Court on 28th July, 2008 and 18th August, 2008. Learned Metropolitan Magistrate after recording of the presummoning evidence issued summons on the accused under Section 204 Cr.P.C. The accusedrespondents 1, 2 & 3 then filed application under Section 201 Cr.P.C. for return of complaint for want of jurisdiction. They alleged that the entire transaction took place at New Delhi and only the legal notice was issued from Mumbai and hence the learned Magistrate has no jurisdiction to try and entertain the complaint. A similar application was filed by the accused in CC No.3286/SS/2008. Thereafter, the learned Magistrate by order dated 5th January, 2010 allowed the application under Section 201 Cr.P.C. and returned the complaint for want of jurisdiction. A similar order was passed by the learned Magistrate in CC No.3286/SS/2008.
3. Being aggrieved, the appellantcomplainant filed Criminal Revision Applications Nos.301 & 302 of 2010 before the Sessions Court, Greater Bombay. Learned Sessions Judge by the judgment and order dated 2nd November, 2011 allowed the criminal revision applications and set aside the orders of learned Magistrate and the matter was remitted back to the Magistrate. However, at the instance of Respondent Nos.1, 2 & 3 the order passed by the Sessions Judge was set aside by the High Court by the order impugned.
4. Learned counsel appearing on behalf of the appellant submitted that the Magistrate after finding sufficient ground for proceeding and after issuance of summons under Section 204 Cr.P.C., has no jurisdiction to recall or review the order by exercising power under Section 201 Cr.P.C. It is further contended that the High Court failed to consider the aforesaid fact and has no answer to the issue as was raised and decided by the learned Magistrate. Further, according to the learned counsel for the appellant, in the matter under Section 138 of the N.I.Act the appellant having been issued legal notice from Mumbai, the Magistrate has jurisdiction to try and entertain the complaint.
5. Per contra, according to the learned counsel for the respondents, the High Court of Bombay has taken due course and settled all the questions raised in the complaint filed by the appellant. The complaint filed by the appellant is silent with regard to place where (a) the order was given by the respondent; (b) goods were supplied; (c) the payment was agreed to be made: (d) the cheques in question were issued: (e) the cheques in question were dishonoured and (f) the parties to the petition intended to make and receive the same. It is accepted that the notice in question was issued from Mumbai. It is contended that issuance of notice would not by itself give rise to a cause of action for filing the complaint at Mumbai.
6. Further, according to the respondents the appellant has concealed the relevant facts purposefully, particularly the fact that the entire transaction had taken place at Delhi and, therefore, the Magistrate has returned the complaint under Section 201 Cr.P.C.
7. We have heard learned counsel for the parties and perused the record.
8. The main questions involved in the present case are:
(i) Whether the Magistrate after having found sufficient ground for proceeding in case and issued summons under Section 204 Cr.P.C. has the jurisdict
