Advocates:
['CA JOSHI', 'RC JOSHI', 'SAMBARE', 'SC JOSHI']

1

1IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

Criminal Writ Petition No. 405 of 2012 (Shamsuddin v. Waman & ors); Criminal

Writ Petition No. 406 of 2012 (Shamsuddin v. Waman); Writ Petition No. 408 of

2012 (Shamsuddin v. Waman & ors) and Writ Petition No. 409 of 2012

(Shamsuddin v. Waman & ors)

--------------------------------------------------------------------------------------

Office notes, Office Memoranda of

Coram, appearances, Court's orders

or directions and Registrar's orders.

Court's or Judge's Orders.

Mr C. A. Joshi, Advocate for petitioner

Mr A. S. Sonare, APP for respondent-State

Coram : A. P. BHANGALE, JJ

Dated : 1

st October 2012

1.

Heard learned counsel for petitioner in all

these writ petitions. Cheque drawn upon Bank of

India, Akola Branch was deposited by complainant on

the said Bank at its Ajni Branch, Nagpur. Cheques

were returned dishonoured for insufficiency of funds

funds in the account of petitioner. After issuing

demand notice from Nagpur and upon failure of

petitioner to comply with the demand notice for

payment of money due for dishonoured cheques,

complainant filed complaint under Section 138 of the

Negotiable Instruments Act in the Court at Nagpur.

2.

Petitioner-accused had raised preliminary

2

objection about territorial jurisdiction of the trial

Court at Nagpur to entertain, try and decide the

complaint. Learned Special Court constituted under

Section 138 of the Negotiable Instruments Act

rejected the objection. Revision filed by the

petitioner was dismissed. Hence, the petitioner has

invoked writ jurisdiction of this Court under Article

227 of the Constitution of India.

3.

Contention of Mr C. A. Joshi is, cheque

was drawn upon the Bank of India at Akola and the

Nagpur Branch is merely a collecting bank and hence,

a court at Nagpur cannot have jurisdiction to

entertain, try and decide the complaint of present

respondents.

4.

In K. Bhaskaran v. Sankaran Vaidhyan

Balan & anr reported in 1999 (7) SCC 510, the Apex

Court has held that the offence under Section 138 of

the Negotiable Instruments Act can be completed

only with the concatenation of a number of acts and

the acts which are components are as follows :

(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; and

3

(5)

Failure of the drawer to make payment

within 15 days of the receipt of the notice.

The Apex Court has further laid down

that it is not necessary that the above five acts should

have been perpetrated at the same locality and it is

possible that each of those five acts could be done at

five different localities, but concatenation of the all

the above five acts is sine qua non for the completion

of the offence under Section 138 of the Act.

5.

The Division Bench of this Court in Mrs

Preetha S. Babu v. Voltas Ltd reported in 2010 (3)

AIR Bombay R 63, following the ratio laid down by

the Apex Court in K. Bhaskaran’s case, has held as

under :

“31. Therefore, the cheque can be presented at

the collecting bank of the payee. The collecting

bank has to then send it to the drawee bank.

That must be done within six months. If the

cheque is dishonoured and money is not paid

within 15 days of the notice, complaint can be

filed at the place where the collecting bank is

situated. The idea is that the cheque should

reach the drawee bank within six months. It

can be directly presented to it or it can be

presented through the collecting bank.

32. Paragraph 14 of K. Bhaskaran (AIR 1999

SC 3762) will have to be read against the above

4

background. When in paragraph 14,