Naseer v. Balaji & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04.07.2008CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMCriminal Original Petition Nos.11570 & 11571 of 2008and Connected Miscellaneous PetitionsNaseer ... Petitioner in both the petitions-Vs.-Balaji ... Respondent in Crl.O.P.11570/08Suresh ... Respondent in Crl.O.P.11571/08Prayer in both the Crl.O.Ps : Petitions filed under Section 482 ofthe Criminal Procedure Code seeking to call for the recordspertaining to C.C.Nos.113 and 114 of 2007 respectively, pending onthe file of the Judicial Magistrate-I, Chengalpattu and quash thesame.For Petitioner : Mr.C.JagadishC O M M O N O R D E RThe above criminal original petitions have been filed by theaccused in C.C.Nos.113 and 114 of 2007 pending on the file of theJudicial Magistrate No.1, Chengalpattu, seeking to quash theproceedings therein.2. The said cases were filed by the respective respondentsunder Section 138 of the Negotiable Instruments Act, 1881. Thecontention of the petitioner is that the place of residence of thecomplainants is Pondicherry, the place of residence of thepetitioner/accused is Ramanathapuram, UTI Bank where the chequeshave been drawn is situated at T.Nagar, Chennai and the IndianOverseas Bank, where the cheques have been presented forrealisation is situated at Thirupuvanai and as such the complaintsought to have been filed in any one of the Courts situated at theabove said places, but the complaints have been filed before theJudicial Magistrate No.1, Chengalpattu, within whose territorialjurisdiction no cause of action has arisen. Since the Courtsituated at a place from where the legal notice has been issuedwill not be clothed with any territorial jurisdiction.3. Mr.C.Jagadish, learned counsel appearing for the petitionerwas heard on the above said contentions raised in the petitions. https://hcservices.ecourts.gov.in/hcservices/

4. When this Court brought to the notice of the learnedcounsel the decisions of the Hon'ble Apex Court and this Courtreported in (i) K.Bhaskaran Vs. Sankaran Vaidhyan Balan (AIR 1999 SC 3762) and(ii) Narang Industries Ltd., Vs. Ashok Leyland Finance Ltd., (1998 (1) CTC 229)the learned counsel submitted that in the decision of the Hon'bleApex Court, the question of territorial jurisdiction did notdirectly arose for consideration and the Hon'ble Apex Court has notcategorically held that the place of issue of legal notice willconfer jurisdiction on the Court situated therein. The learnedcounsel sought to distinguish the decision of this Court reportedin 1998 (1) CTC 229 by contending that in that case the registeredoffice of the de facto complainant was located at Madras, fromwhere the legal notice was issued and hence the said decision doesnot lay down the principle that the Courts situated at the placefrom where the legal notice was issued would have territorialjurisdiction to entertain a complaint under Section 138 of theNegotiable Instruments Act.5. The learned counsel further relied upon the decision of theBombay High Court (Aurangabad Bench) in Lakshmi Travels, Nagpur Vs.G.E. Country Wide Consumer & Another reported in C.L.T. (1) 20071116 in support of his contentions. In the said decision inparagraph 7 it has been observed as under“7. The contention as raised by the learned counselin favour of complainant that the above judgment of theApex Court in K.Bhaskaran (AIR 1999 SC 3762) (Supra)supports his case to this extent that giving of notice inwriting to the drawer of the cheque demanding payment ofthe cheque amount and failure of the drawer to makepayment within 15 days from the notice gives cause ofaction only at Aurangabad. This contention has no force.The Apex Court, no where dealt with this aspect. What hasbeen decided by the Apex Court in K.Bhaskaran and M/s.PremChand (Supra) refers to the basic ingredients which arenecessary for an offence under S.138 of the Act. There isno dispute about this that all these ingredients arenecessary. We are concerned with the cause of action inthe present matters. The demand notice is a must. But aplace of issuance of notice and no payment thereaftercannot be sufficient to file complaint under S.138N.L.Act. The notice was though sent from Aurangabad, butreceived at Nagpur. The party failed to make the paymentas per notice. Therefore, issuance of notice fromAurangabad itself cannot give cause of action to filecomplaint at Aurangabad.” Except the above said contention no other submissions were putforth by the learned counsel appearing for the petitioner. https://hcservices.ecourts.gov.in/hcservices/

6. I have carefully considered the said submission made by thelearned counsel for the petitioner.7. In the decision reported in K.Bhaskaran Vs. SankaranVaidhyan Balan (AIR 1999 SC 3762) the Hon'ble Apex Court has heldas under in paragraphs 12 to 16 as follows:“12. Even otherwise the rule that every offence shallbe tried by a court within whose jurisdiction it wascommitted is not an unexceptional or unchangeableprinciple. Section 177 itself has been framed by thelegislature thoughtfully by using the precautionary word“ordinarily” to indicate that the rule is not invariablein all cases. Section 178 of the Code suggests that ifthere is uncertainty as to where, among differentlocalities, the offence would have been committed thetrial can be had in a court having jurisdiction over anyof those localities. The provision has further widened thescope by stating that in case where the offence wascommitted partly in one local area and partly in anotherlocal area the court in either of the localities canexercise jurisdiction to try the case. Further again,Section 179 of the Code stretches its scope to a stillwider horizon. It reads thus:“179. Offence triable where act is done orconsequence ensues.—When an act is an offence byreason of anything which has been done and of aconsequence which has ensued, the offence may beenquired into or tried by a court within whoselocal jurisdiction such thing has been done orsuch consequence has ensued.”13. The above provisions in the Code should have beenborne in mind when the question regarding territorialjurisdiction of the courts to try the offence was soughtto be determined.14. The offence under Section 138 of the Act can becompleted only with the concatenation of a number of acts.The following are the acts which are components of thesaid offence: (1) drawing of the cheque, (2) presentationof the cheque to the bank, (3) returning the cheque unpaidby the drawee bank, (4) giving notice in writing to thedrawer of the cheque demanding payment of the chequeamount, (5) failure of the drawer to make payment within15 days of the receipt of the notice.15. It is not necessary that all the above five actsshould have been perpetrated at the same locality. It ispossible that each of those five acts could be done atfive different localities. But a concatenation of all theabove five is a sine qua non for the completion of the https://hcservices.ecourts.gov.in/hcservices/ offence under Section 138 of the Code. In this context areference to Section 178(d) of the Code is useful. It isextracted below:“178. (a)-(c)***(d) where the offence consists of several acts done indifferent local areas,it may be enquired into or tried by a court havingjurisdiction over any of such local areas.”16. Thus it is clear, if the five different acts weredone in five different localities any one of the courtsexercising jurisdiction in one of the five local areas canbecome the place of trial for the offence under Section138 of the Act. In other words, the complainant can chooseany one of those courts having jurisdiction over any oneof the local areas within the territorial limits of whichany one of those five acts was done. As the amplitudestands so widened and so expansive it is an idle exerciseto raise jurisdictional question regarding the offenceunder Section 138 of the Act.” (Emphasis supplied)8. A careful perusal of the above said decision of the Hon'bleApex Court makes it clear that one of the principal issues thatarose for consideration before the Hon'ble Apex Court was thecompetency of the trial court in entertaining the complaint underSection 138 of the Negotiable Instruments Act. The specificcontention put forth therein by the appellant was that the trialcourt had no territorial jurisdiction to entertain the complaintand while considering such a contention only the Hon'ble Apex Courthas held as above. In the said decision, the Hon'ble Apex Courthas pointed out in para 14 the following acts as the components foran offence under Section 138 of the Negotiable Instruments Actviz.,“14...(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 thecheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15days of the receipt of the notice”after observing so, in para 16 the Hon'ble Apex Court has laid downas under:“16...... In other words, the complainant can chooseany one of those courts having jurisdiction over any oneof the local areas within the territorial limits of which https://hcservices.ecourts.gov.in/hcservices/ any one of those five acts was done. As the amplitudestands so widened and so expansive it is an idle exerciseto raise jurisdictional question regarding the offenceunder Section 138 of the Act.”9. Thus it is clear that the Hon'ble Apex Court has analysedthe relevant provisions of the Criminal Procedure Code relating toterritorial jurisdiction and the provisions of the NegotiableInstruments Act and thereafter only has held that the complainantcan choose any one of those Courts having jurisdiction over any oneof the local areas within the territorial limits of which any oneof those five acts was done.10. Therefore with great respect to the learned Judge of theBombay High Court (Aurangabad Bench), I am unable to accept theview taken by him in Lakshmi Travels, Nagpur Vs. G.E. Country WideConsumer & Another reported in C.L.T. (1) 2007 1116, for the saidreasons, the contention of the learned counsel cannot becountenanced.11. As far as the decision reported in Narang Industries Ltd.,Vs. Ashok Leyland Finance Ltd., (1998 (1) CTC 229) is concerned,though the contention of the learned counsel for the petitioner ispartly correct in the sense that in that case, the Registeredoffice of the complainant was located at Madras and the legalnotice demanding payment was issued from Madras, the learned Judgehas held in that decision in para 14 as under:“14.... (a) to (h).....(i) Under Section 179 Cr.P.C., when an act is anoffence by reason of anything which has been done and ofa consequence which has ensued, the offence may beenquired into or tried by a Court within whose localjurisdiction such thing has been done or suchconsequence has ensued. What Section 179 Cr.P.C.,provides is that when a person is accused of thecommission of any offence by reason of two things, byreason first, of anything which has been done, andsecondly, of any consequence which has ensued, then thejurisdiction is conferred on the Court where the act hasbeen done or the consequence has ensued. The offence,therefore, must be charged by reason of the two things,the act done and the consequence which ensued and theconsequence, therefore, forms the, necessary part of theoffence.(j) to (l) .......(m) In the light of the principles discussed aboveas laid down in the above decisions, the place fromwhich the notice has been issued, intimating the https://hcservices.ecourts.gov.in/hcservices/ dishonour of the cheque and demanding the cheque amountto be paid to the creditor and the failure to makepayment would also have the jurisdiction, since theconsequence as contemplated under Section 179, Cr.P.C.for the act done by the accused, by issuing cheque whichwas dishonoured due to which the demand of the amountand failure to make the payment had ensued.” (Emphasissupplied)Therefore the said decisions of the Hon'ble Apex Court as well asthis Court directly covers the issue that arises for considerationin these cases and the same negative the contention of the learnedcounsel for petitioner.12. The learned counsel for the petitioner submitted that ifthe trial is to take place in the Court at Chengalpattu, both thecomplainants and the accused and the witnesses have to go therefrom different parts of the State and everybody will be put tohardship and therefore, submitted on that ground that the complaintmay be quashed and the respondents may be directed to present thecomplaints before the competent Court within whose territorialjurisdiction one of the other causes of action has arisen.13. This Court is unable to accept the said contention. Merelybecause the parties to the criminal complaint lodged by therespondents will be put to hardship, that cannot be a ground forquashing the proceedings but it may be a good ground to seektransfer of the cases to some other competent Court which will beconvenient for the parties to attend.14. For the aforesaid reasons the criminal original petitionsfail and the same are dismissed. Consequently, the connectedmiscellaneous petitions are also dismissed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kk https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate No.1Chengalattu2. Do thro the Chief Judicial MagistrateChengalpattu.2 ccs to Mr.C. Jagadish, Advocate, Sr. 34146, 34147Crl.O.P.Nos.11570 & 11571 of 2008and Connected Miscellaneous PetitionsGV (CO)kk 11/7