Jyotiba Shripati Goykar, Age: 45 years, Occ: Service v. Ramchandra

Judgment

. Heard the learned Counsel for the parties. 2 crwp692.10

#2. By this Criminal Writ Petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the original accused challenges order dated 13-07-2010 passed by the Judicial Magistrate, First Class, No.3 Ahmednagar below Exhibit-26 in S.T.C. No. 2379 of 2009 rejecting the petitioner's application raising objection on the ground of territorial jurisdiction. The respondent original complainant filed Criminal complaint bearing S.T.C. No.2379 of 2009 in the Court of the Chief Judicial Magistrate, Ahmednagar on 28-07-2009 under Section 138 of the Negotiable Instruments Act (for short "The said Act") for dishonour of cheque of Rs.1,50,000/- against the petitioner dated 05-01-2009 drawn on State Bank of India, Karjat Branch to discharge his liability to the respondent. Said cheque deposited by the respondent in Ahmednagar District Central Co- operative Bank Ltd., Branch Ruichattissi, Tq. Nagar District Ahmednagar. Said cheque dishonoured on 05-05-2009 and therefore, the 3 crwp692.10 respondent issued legal notice dated 02-06-2009 to the petitioner calling upon him to make payment of dishonoured cheque within stipulated period. As the petitioner failed to make payment of the said dishounored cheque, criminal complaint under Section 138 of the said Act. The learned Magistrate recorded verification on 31-07-2009 and issued summons to the petitioner - original accused for the offence punishable under Section 138 of the said Act.

#3. The petitioner filed application on 12-02-2010 in the court of the Judicial

Magistrate, First Class, No.3, Ahmednagar challenging the territorial jurisdiction of the Court on the basis of ratio laid down by the Apex Court in the matter of Harman Electronics Pvt. Ltd., and another vs. National Panasonic India Pvt. Ltd., [2009(3) Mh.L.j. 792, Nutan Damodhar Prabhu and another vs. Ravindra Vassant Kenkare and another [2008(1) Mh.L.J.889 and in the matter 4 crwp692.10 of Dipti Kumar Mohanty, Dist. Nayagarh, Orissa vs. Videocon Industries Ltd., Ahmednagar [2009(5) Mh.L.J.273.

#4. It is the case of the petitioner that he issued a cheque of Rs.1,50,000/- dated 05-01-2009 to the respondent - the complainant drawn on State Bank of India, Branch at Karjat District Ahmednagar. The said cheque was dishonoured by the bank at Karjat and therefore, cause of action arose at Karjat and hence, the Court at Ahmednagar have no territorial jurisdiction to entertain the complaint filed by the respondent under Section 138 of the said Act. The said application below Exhibit-26 was rejected by the learned J.M.F.C. No.3 Ahmednagar by the impugned order dated 13-07-2010.

#5. Mr. Sandeep S. Deshmukh, the learned Counsel appearing on behalf of the petitioner original complainant submits that the Court of the J.M.F.C. at Ahmednagar have no territorial 5 crwp692.10 jurisdiction to entertain the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act. According to him, as the cheque was drawn on the State Bank of India, branch Karjat and the cheque issued by the petitioner was dishonoured by the bank at Karjat on which it was drawn, the Court at Ahmednagar could not have jurisdiction simply because the cheque was deposited by the respondent with the District Central Co-operative Bank, branch at Ruichattisi, Taluka and District Ahmednagar, where the respondent has account. According to him, the petitioner is permanent resident of Koregaon, Taluka Karjat, District Ahmednagar and the cheque was drawn on the branch of S.B.I. at Karjat and it was dishonoured by the Bank at Karjat, only the Court at Karjat will have jurisdiction to entertain the complaint. He further contended that the respondent in the complaint did not disclose how the Court at Ahmednagar had jurisdiction. He submitted that simply because the legal notice as required by the Section 138 of 6 crwp692.10 the Negotiable Instruments Act was issued from Ahmednagar, the Court at Ahmednagar cannot get jurisdiction to entertain the complaint.

#6. In support of his contention, he relies on the judgment in the matter of Harman Electronics Pvt. Ltd., and another vs. National Panasonic India Pvt. Ltd., [2009(2) Bom.C.R.(Cri.)

#624. He submits that in that case, the Apex Court held that just by issuing notice from a particular place the cause of action for filing the complaint does not arise at that place. He also relies on the judgment in the matter of Dipti Kumar Mohanty, vs. Videocon Industries Ltd., Ahmednagar [2009(2) Bom.C.R.576]. In that case, our High Court held that where payee's bank is situated, that Court gets jurisdiction to entertain the complaint under section 138 of the said Act because cheque discloses that branch and therefore, cause of action arises there. He also placed reliance on the judgment in the matter of 7 crwp692.10 Ishar Alley Steels Ltd. vs. Jayaswals NECO Limited reporteed in 2001(5) Bom.C.R. 419. In that case, the Apex Court held that for filing criminal complaint under section 138 of the said Act, the Court in whose jurisdiction drawee bank is situated gets territorial jurisdiction. It is further held that "the bank" referred to in clause (a) to the proviso of Section 138 of the said Act would mean drawee bank on which the cheque is drawn and not all banks where the cheque is presented for collection including bank of the payee, in whose favour cheque is issued."

#7. On the basis of these authorities, the learned Counsel appearing on behalf of the petitioner - original accused submits that the impugned order passed by the learned Magistrate dated 13-07-2010 holding that the Court at Ahmednagar has jurisdiction, is liable to be set aside.

#8. On the other hand, Mr. V.D. Sapkal, the 8 crwp692.10 learned Counsel appearing on behalf of the respondent - original complainant submits that the Apex Court again and again in several matters held that offence under section 138 of the said Act can be completed only with the concatenation of a number of acts. Following are the acts which 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.

#9. The learned Counsel appearing on behalf of the respondent placed on record a copy of the legal notice dated 02-06-2009 issued by the original complainant to the petitioner under section 138 of the said Act for dishonour of the cheque of Rs.1,50,000/-. Same is taken on record and marked "X" for identification. He submits that in the said notice the respondent 9 crwp692.10 specifically stated in Para-3 that the petitioner assured the complainant to deposit the said cheque in his Bank account so that definitely he would get the payment of the same. He further submits that in Para-4 of the said notice, the respondent specifically stated that as per assurance given by the petitioner he deposited the said cheque in his bank Ahmednagar District Central Co-operative Bank Ltd., Branch Ruichattissi, District Ahmednagar. He further submits that it is specifically stated in the said legal notice dated 02-06-2009 that same is issued on behalf of the respondent - original complainant showing his residential address at Ruichattisi Taluka and District Ahmednagar. Therefore, the learned Magistrate at Ahmednagar also have territorial jurisdiction to entertain the complaint filed by him under section 138 of the said Act.

#10. In support of this contention, he relies on the judgment in the matter of K. Bhaskaran vs. Sankaran Vaidhyan Balan and another reported in 10 crwp692.10 A.I.R. 1999 s.c. 3762(1), Shri Ishar Alloys Steels Ltd. vs. Jayaswals NECO Ltdd., reported in A.I.R. 2001 S.C. 1161, Harman Electronics Pvt. Ltd. and another vs. Nationalk Panasonic Pvt. Ltd., and another reported in 2009(3) Mh.L.J. 792 and Preetha S. Babu, Ernakulam vs. Voltas Ltd., Chochin and another reported in 2010 (3) Mh.L.J. 234 (D.B.).

#11. In the present case, the learned Counsel appearing on behalf of the petitioner mainly relied on the judgment of this Court in the matter of Dipti Kumar Mohanty, vs. Videocon Industries Ltd., Ahmednagar [2009(2) Bom.C.R.576]. In that case, our High Court categorically held that where the drawee bank is situated have jurisdiction to entertain the complaint under section 138 of the said Act but this judgment is stayed by the Apex Court in S.L.P. (Criminal) No.2077 of 2009 on 06-04-2009. In the case of Harman Electronics Pvt. Ltd., (supra), the Supreme Court has 11 crwp692.10 considered the issue about the jurisdiction on the basis of giving notice under section 138 of the said Act. In that case, though the entire cause of action took place at Chandigarh, the complainant issued notice from Delhi and filed complaint there. Therefore, the Apex Court held that the Magistrate situated at Delhi have no jurisdiction to entertain the complaint only on the ground that notice is issued from Delhi. In the matter of Ishar Alloys Steels Ltd., (supra), the Apex Court has considered the jurisdiction of the Magistrate Court where the cheque is dishonoured. The facts of that case are altogether different than the present case. Apart from that Division Bench in the matter of Preeta S. Babu ( supra ), categorically held that if the complainant calls upon the accused to make payment at the place mentioned in the demand notice and the accused fails to make payment at that place, part of cause of action would arise at that place. In that case, the Division Bench of this Court considered all the authorities referred to hereinabove. Paras 7 12 crwp692.10 and 31 of that authority read as under. "7. In our opinion in the facts of this case it is difficult to hold that the Mumbai Court has no jurisdiction. Admittedly, respondent 1's registered office is situated at Mumbai. According to respondent 1, purchase order was placed in Mumbai, we have noted that statutory notice was issued from Mumbai and accused were called upon to pay the amount in Mumbai. Cheque was deposited in City Bank, Mumbai, which is respondent 1's Banker. It was dishonoured in Mumbai. If all these facts are taken into consideration, it is difficult to hold that no part of the cause of action arisen in Mumbai.

#31. Therefore, the cheue 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 13 crwp692.10 the Notice, complaint can be filed at the place where the collecting Bank is sittuated. The idea is that the cheque should reach to the drawee Bank within six months. It can be directly presented to it or it can be presented through the collecting Bank."

#12. In the present case, both the petitioner and respondent are residents of Ahmednagar district, though the Tahsils are different. As per the provisions of Section 14 of the Cr.P.C. the jurisdiction of the Chief Judicial Magistrate extends over the entire district. The petitioner had obtained hand loan of Rs.1,50,000/- from the respondent and in lieu thereof, he issued the cheque in question to the respondent, drawn on S.B.I., branch at Karjat where he had his account. While issuing the cheque the petitioner gave out to the respondent that he might deposit the cheque in the Bank at Ahmednagar where he was having account and that he would be paid amount of the 14 crwp692.10 cheque by his branch at Ahmednagar, though it was drawn on S.B.I. branch at Karjat. All those facts are stated in the demand notice. The demand notice required the petitioner to pay him the cheque amount obviously at the village in Ahmednagar district where the respondent resides. When all those facts are taken into consideration, the decision in Preetha V. Voltas Ltd. (supra) relied upon by the learned Counsel for the respondent does support his contention that the Court of the Chief Judicial Magistrate at Ahmednagar has jurisdiction to entertain the complaint filed by the respondent in that Court for the offence punishable under Section 138 of the Negotiable Instruments Act.

#13. Taking into consideration facts stated above and the legal submission of the Counsel for the parties, I hold that the learned J.M.F.C. at Ahmednagar have jurisdiction to entertain the present complaint. Hence, no interference is called for with the impugned order passed by the 15 crwp692.10 learned Judicial Magistrate in the present Criminal Writ Petition. Therefore, Criminal Writ Petition is dismissed. No order as to costs.

#14. It is made clear that the learned Magistrate can proceed with the matter on its merits and decide the same as early as possible. [K.K. TATED, J.] sut/Dec10/crwp692.10