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Delhi District Court

That The Cheque Should Have Been ... vs ) That The Cheque Was Drawn By The Accused ... on 14 May, 2009

                                                                               C/C No. 1732/P/07


     IN THE COURT OF SH. SIDHARTH MATHUR, M. M.­02, CENTRAL
                         DISTRICT, DELHI

In Re:­ 

M/s Citi Financial Consumer Finance India Ltd.   ............                Complainant

                                             Versus 

Mehru                                                         ............   Accused 

                                          ORDER

1. The application of the verse propounded by Blackstone as under is on test in this case:­ "All Crimes are local, the Jurisdiction over the crime belongs to the Country, where the Crime is committed"

In the instant order, I shall adjudicate the Issue of Territorial Jurisdiction of this Court to entertain the present complaint filed under section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as "the Act"

for the sake of brevity). However, before I advert on to expound my observations as to whether this court is vested with the territorial jurisdiction to entertain the instant complaint or not, one needs to have a better grasp of the factual foundations of the tussle involved herein as being depicted in the body of the complaint. Henceforth, with the said objective, it will be apposite to recapitulate the factual matrix forming the bedrock of the case of the complainant, though a thumbnail description of the same would suffice. 14.05.2009 Page No. 1/75

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2. The complainant has stepped into the portals of this court by petitioning a complaint under Section 138 of the Act in respect of the cheque handed over to it by the accused, which was subsequently dishonoured by the banker of the accused on presentation. As it was so the requirement under law in such contingencies, the complainant allegedly had issued a statutory notice under section 138 of the Act within the requisite period as envisaged therein against the accused wherein the complainant had flagged its demand for the payment of the impugned cheque amount within 15 days of its receipt. It is now being asseverated by the complainant in this petition that despite receipt of the statutory notice, the accused has failed in his task to comply with the requirements of the said notice where after the accused is asserted to have intentionally committed an offence punishable under Section 138 of the Act. Thus in such a situation, the complainant implores for punishing the accused in accordance with the penal provisions so envisaged under Section 138 of the Act. In this factual backdrop, the present complaint petition came to be preferred before this court.

3. The complainant had adduced on record its pre­summoning evidence in support of its factual assertions as had been vocalized in its complaint, where after, the Scholarly Predecessor of this court ordered the summoning of the accused by observing to the extent that a Prima Facie case under Section 138 of the Act has been made out against the accused. 14.05.2009 Page No. 2/75

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4. It is after the ordering of the process against the accused, it came to the notice of the court that the accused as well as his banker whereupon the impugned cheque is drawn relates to a place which is beyond the territorial extent and restrictions of the State of Delhi, meaning thereby, the location of the accused and his banker whereupon the impugned cheque was drawn are both situated beyond the territorial jurisdiction of the present magisterial court. In the light of the above dual circumstances, the present court suo motu took up the issue of territorial jurisdiction of this court to entertain the complaint in question & in this backdrop of events, the instant matter came to be listed for adjudication on the issue of territorial jurisdiction of this court to decide the instant complaint.

5. I have bestowed my serious minded consideration to the arguments advanced at length by the Erudite Counsel for the complainant and have also punctiliously glimpsed through the relevant material available on record.

6. It was passionately argued by the Learned Counsel for the complainant with vehemence that the cognizance in the present matter has already been taken where after the summons were directed to be issued against the accused qua the offence under Section 138 of the Act, in which circumstances now at this stage it is not at all permissible for this court to revert back on the issue of territorial competency of this court since once the 14.05.2009 Page No. 3/75 C/C No. 1732/P/07 cognizance has been taken, it is to be impliedly understood that the Court had assumed in favour of possessing territorial jurisdiction to proceed against the accused for the alleged offence.

It was further supplemented by the Scholarly Counsel for the complainant that in case the court decides the issue of territorial jurisdiction negatively against the complainant at this juncture after the accused has already been ordered to be summoned, it would amount to virtual recalling of the summons earlier ordered against the accused, which exercise is not at all permissible as per law since the magisterial court lacks power either to recall its prior processes or review its prior interlocutory orders. For adding strength to his assertion as aforesaid, the Learned Counsel for the complainant has cited the Apex Court's decision delivered in "Adalat Prasad v. Rooplal Jindal"

reported as 2004(7) SCC 338.

7. It was farther persistently argued with vigour by the Knowledgeable Counsel for the complainant that the impugned cheque was presented by the complainant with its own banker situated in Delhi, which bank later on had forwarded the said cheque for clearance to the bank of the accused where it was dishonoured & this actus of the complainant of presenting the cheque to its banker at Delhi means that the presentation of the impugned cheque had taken place at Delhi thereby conferring territorial jurisdiction over this court to entertain & adjudicate the present complaint. It was sought to be addressed by the Erudite Counsel for the complainant that 14.05.2009 Page No. 4/75 C/C No. 1732/P/07 though the banker of the accused whereupon the cheque was eventually drawn might be located outside the periphery of Delhi but as the collecting bank of the complainant wherein the cheque was initially presented by the complainant for collection from the banker of the accused is situated within the parameters of Delhi, the cheque is deemed to have been presented at Delhi thereby resulting in conferment of territorial jurisdiction over this court to decide the instant tussle.

8. Next, it was further fervently vocalized by the Scholarly Counsel for the complainant that the head office of the complainant is situated at Delhi from where it carries on its usual business & works for gain, which solo fact in toto is suffice to confer territorial jurisdiction over this court to entertain the instant complaint.

9. The Learned Counsel for the complainant had endeavored to infuse force into his above arguments dealt with in the adove paragraphs no. 7 & 8 of this Order by citing the celebrated pronouncement of the Apex Court delivered in the case of "K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr." reported as 1999(4) RCR (Criminal) 309 & another precedent of the Highest Court promulgated in the case of "Smt. Shamshad Begum v. B. Mohammed"

reported as 2008(4) Crimes 306 (SC). The Knowledgeable Counsel for the complainant has tried to explain that in the both of the above noted pronouncements, the Supreme Court has propounded Five places whereat the 14.05.2009 Page No. 5/75 C/C No. 1732/P/07 complaint case under Section 138 of the Act can be instituted by the complainant, which five jurisdictional locations includes the place where the cheque is presented by the complainant to its collecting bank for getting it encashed from the banker of the accused and also the place whereat the complainant either has its head office or residence, as the case may be.

10. The Lettered Counsel for the complainant also had fascinatingly & strenuously addressed that the statutory notice under Section 138 of the Act was issued from Delhi whereby the accused was called upon to make the payment of the impugned cheque amount to the complainant within 15 days of its receipt thereof and thus as per Learned Counsel for the complainant, the issuance of statutory notice from Delhi per se is a jurisdictional fact infusing territorial jurisdiction into this court to try the instant complaint.

11. Now on the careful scrutiny & analysis of the above quoted arguments addressed by the Lettered Counsel for the complainant, in my humble understanding, it culls out that the Learned Counsel for the complainant is endeavoring to infuse territorial jurisdiction into this court to entertain & try the present complaint on the legs of five pronged assertions, which inter alia can be streamlined as below :­ A) That the cheque was presented by the complainant for collection with its banker located within Delhi for getting it cleared from the outstation banker of the accused, meaning thereby the presentation of the cheque in question was made to 14.05.2009 Page No. 6/75 C/C No. 1732/P/07 "The Bank" at Delhi as per "K. Bhaskaran's" case (supra) & "Smt Shamshad Begum's" case (supra) ;

B) That the complainant has its head office in Delhi from where it carries on its usual business & works for gain, which fact results in accrual of cause of action at Delhi ;

C) That the material portion of the anterior business transactions which resulted in drawing of the impugned cheque by the accused in complainant's name had taken place within the physical parameters of Delhi, which fact results in accrual of cause of action at Delhi ;

D) That the statutory notice under the Section 138 of the Act was issued to the accused by the complainant from Delhi meaning thereby that a part of cause of action has arisen at Delhi; and E) Lastly, that once the cognizance stood taken by the court where after summoning of the accused was ordered, the court is deemed to have assumed the territorial jurisdiction at one stage to entertain the present complaint where after now it is legally impermissible for the court to ponder over the issue of its territorial jurisdiction again, which if done, would yield an indirect & virtual recalling of the order of taking of cognizance & issuance of process against the accused once directed by the court which actus magisterial court is not empowered to do in the light of the law laid down in the case of "Adalat Prasad's" case (supra).

12. Before I locomote on to explicitly render my dictum over the issue of territorial jurisdiction & the subsequent destiny of the present complaint, I cannot afford to lose sight of certain apropos uncontroverted facts acknowledged by the complainant in its pleading.

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C/C No. 1732/P/07 It is not at all in dispute that the impugned cheque in the present case was deposited by the complainant with its collecting bank at Delhi for the purposes of getting it encashed from the outstation banker of the accused. It is also beyond any shade of doubt that the statutory notice under Section 138 of the Act thereby demanding the payment of the impugned cheque amount from the accused was issued from Delhi & further that the Head Office of the complainant where from it carries on its usual business and works for gain is situated within Delhi. The complainant though has assumed silence qua the facet of drawing of the impugned cheque by the accused at Delhi The question which now springs up is that "Do all these above noted admitted facts, if read in separation or conjunction with each other, can be said to be suffice to clothe this court with territorial jurisdiction so as to enable it to entertain & try the present complaint ?"

13. With an objective to answer the above loaded question rovering over the mind of this court in an effective fashion that too in consonance with the legal concepts applicable thereto, one cannot lose track of the definition of of the offence of "Dishonour Cheque " as envisaged under the Act, the ingredients of the said offence & the facts constituting the cause of action for the said offence.

Henceforth I shall now step forward to lucubrate the legal provision defining the offence of the dishonour of cheque, which is envisaged under Section 138 of the Act & is reproduced, in verbatim, as herein under:­ 14.05.2009 Page No. 8/75 C/C No. 1732/P/07

138. Dishonour of cheque for insufficiency, etc., of funds in the account.­­ Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless­­

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

Explanation.­­ For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.

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14. The au naturel perusal of the aforesaid legal provision would unveil that it tends to punish the offence, taking place for the reason of dishonour of cheque, which was given in lieu of, whole or in part, discharge of any debt or liability, which dishonour was either for the reason of insufficient funds in bank account of the accused or that it exceeded the amount arranged to be paid from the bank account of the accused under the agreement made by the accused in respect thereof with his banker. On a careful analysis of the above sectional provision, it is crystal clear that its main part creates an offence when a cheque is returned by the accused banker unpaid for any reasons mentioned therein. The monumental part, however, is the proviso appended to this legal provision, which lays down three pre­conditions for the applicability of the above section or for that matter for creation of the said offence, which stipulations are, inter alia, reproduced as under :­

1. That the cheque should have been "presented to the bank" within 6 months of its issue or within the period of its validity whichever is earlier ;

2. That the payee should have demanded the payment of the impugned cheque by means of the statutory notice after the cheque is returned unpaid ; and

3. That the drawer should have failed to pay the amount of the impugned cheque as demanded in the statutory notice within 15 days of its receipt thereof. 14.05.2009 Page No. 10/75

C/C No. 1732/P/07 It is only when all the above three conditions co­exists and stands satisfied in concurrence with each other in a given case that a prosecution can be launched against the drawer for the offence under Section 138 of the Act, otherwise not.

15. Now for adjudicating the aspect of territorial jurisdiction of the court in cases of cheque dishonour, facts constituting "Cause of Action" which kickoff the offence under Section 138 of the Act requires discussion, henceforth, I shall now delve on to detect ­ "What are these facts?". But before doing so I would like to have a little discussion on the meaning of the term "Cause of Action".

The expression "Cause of Action" has neither been defined in the constitution nor in the Code of Criminal Procedure nor in the Act. In elementary nomenclature, term "Cause of Action" is understood to be a cluster of facts which provides a right to relief to a petitioner from the court or the facts providing an occasion to the petitioner to invoke the court's jurisdiction for seeking redressal for infringement of his legal right. The term "Cause of Action" as is understood in language of legal parlance would mean every fact, which it would be necessary to be proved by the petitioner, if traversed, in order to support his right to the judgment of the Court. It does not incorporate every piece of evidence which is necessary to prove each fact, but it includes every critical fact which is necessary to be proved. The "Cause of Action" thus would mean the whole bundle of material facts which is necessary for the 14.05.2009 Page No. 11/75 C/C No. 1732/P/07 seeker to prove in order to entitle him to succeed in the legal action.

In Black's Law Dictionary, the following definition is attributed to the expression "Cause of Action" :­ " A situation or state of facts that entitles a party to maintain an action in the court or a tribunal; A group of creative facts giving rise to one or more bases of suing; A factual position that entitles one person to obtain a remedy in court from another person"

In Words & Phrases {4th edition}, the expression "Cause of Action"

has been lucidly defined in the forthcoming manner: ­ "Existence of those facts, which give a party a right to judicial interference on his behalf."

To ascertain whether a bundle of facts gives rise to "Cause of Action" and to determine whether one or more of those facts had occurred within the territorial jurisdiction of the court, the entire complaint has to be meaningfully read in toto. In other words, "Cause of Action" refers entirely to the media whereupon the seeker asks the court to arrive at a conclusion in his favour.

It is thus obvious that the "Cause of Action" on a negotiable instrument of cheque generally arises at the time & place where any of the facts (as would be narrated hereinafter) which are required to be proved for bringing home the conviction of the accused, takes place. So "Cause of Action" is a concept in time while Jurisdiction is the situs.

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C/C No. 1732/P/07 The term "Cause of Action" particularly in cases of cheque dishonour assumes grandness in luminance of provision enumerated under Section 142 (b) of the Act which provision in verbatim reads as under:­

142. Cognizance of offences.­­ Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),­­

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 ;

Provided that the cognizance of a complaint may be taken by the court after prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period;

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.

Thus, reading of Section 142 (b) along with clause (c) of the proviso appended to Section 138 of the Act, it becomes abundantly apparent that the cause of action for the prosecution under Section 138 of the Act ripens only once, that is on the failing of the accused to make the payment of the cheque 14.05.2009 Page No. 13/75 C/C No. 1732/P/07 amount either to the payee or the holder of the cheque, as the case may be, within 15 days of the receipt of the said statutory notice & it is on the arousal of the said cause of action, the prosecution against the accused under Section 138 of the Act can be launched. What generates from the above discussion is that the presentation of the cheque to the bank and its subsequent dishonour gives a right to the complainant qua the amount involved in the said cheque but the prosecution under Section 138 of the Act before the court can only be launched after the accrual of the cause of action in accordance with Clause (c) of the proviso to Section 138 of the Act.

17. Thus, it is clear like crystal that for securing conviction under the Act, the following facts are required to be proved by the payee who had initiated the prosecution under Section 138 of the Act :­

1) That the cheque was drawn by the accused in lieu of, whole or in part,discharge of his debt or liability towards the complainant ;

2) That the cheque was presented with the bank by the complainant within the prescribed period i.e. within 6 months of the date mentioned on the cheque leaf ;

3) That the cheque was returned unpaid by the banker of the accused ;

4) That the payee vocalized a written demand for payment of the amount of the impugned cheque by means of a statutory notice addressed to the drawer within the stipulated period; and 14.05.2009 Page No. 14/75 C/C No. 1732/P/07

5) That the drawer failed to comply with the complainant's demand for the cheque amount within 15 days of the receipt of the said notice.

Now in my considered legal perception so conceived in the light of the above discussion qua provision of Section 138 of the Act, the facts narrated herein above corresponds to the "Cause of Action" for the filing of the complaint under Section 138 of the Act.

18. Be that as it may, so far as the question of territorial jurisdiction with regard to inquiry into or trial of criminal offence is concerned, the primary factor to be considered is the place where the alleged offence had been committed, since the criminal offences are generally understood to be local in nature and thus the court under whose local limits, the offence is allegedly been committed will try the offence & thus while deciding as to whether a court has territorial jurisdiction to inquire into & try an offence or not, the court has to look whether the cause of action for the said offence had taken place within its local jurisdiction or not.

19. My pursuit for fortification to my opinion qua the local nature of crimes enables me to lay my hands on Section 177 of the Code of Criminal Procedure, 1973 ( Hereinafter referred to as "the Code" for the sake of brevity).

Section 177 of the Code clearly lays down that, ordinarily, every offence shall be inquired into and tried in a court within whose jurisdiction it 14.05.2009 Page No. 15/75 C/C No. 1732/P/07 was committed. However, the above principle is not unexceptional or unalterable. Section 177 of the Code has been enacted by the legislature in its wisdom by using the precautionary word "ordinarily" to indicate that rule is not invariable in all circumstances. The exceptions to this rule have been narrated in Chapter XIII of the Code, of which chapter Section 177 of the Code itself is a part thereof.

Section 178 of the Code unearths that if there is any uncertainty as to where, among different localities the offence was committed, the trial can be conducted by a court having local jurisdiction over any of these localities. This legal provision has widened the compass of Section 177 of the Code by pronouncing that in cases wherein the offence is committed partly in one local area & partly in another local area, the court in either of the localities will have the territorial jurisdiction to try the case.

Section 179 of the Code stretches the orbit of Section 177 of the Code to a more wider extend by promulgating that where an act is an offence by reason of anything which has been done & of a consequence which has ensued, the offence may be inquired into or tried by the court within whose local area either such thing has been done or the consequence has ensued.

20. As far as the territorial jurisdiction to try the offence under section 138 of the Act is concerned, the court has to keep in mind the germane facts forming the backbone of the cause of action for the said offence (which facts have already been discussed in detail herein before in the former portion of this order) & 14.05.2009 Page No. 16/75 C/C No. 1732/P/07 the places whereat the cause of action has arisen either, in whole or in part, without losing sight of the above provisions of the Code qua the territorial jurisdiction of the court's in respect of the crimes in general. At the cost of sounding repetitive, I would prefer to reiterate that the offence under Section 138 of the Act completes with the happening of the following acts, which can be safely be said as the components of the said offence & the same, inter alia, includes :­ A) Drawing of the impugned cheque;

                       B)     Presentation of the impugned cheque to the bank ; 

                       C)     Returning of the impugned cheque unpaid by the 
                              drawee bank ;

                       D)     Giving of notice in writing by the holder of the  
                              impugned   cheque   to   the   drawer   of   the   cheque  
                              thereby demanding payment of the cheque 
                              amount;

                       E)     Failure of drawer to make the payment demanded 
                              via   the   statutory   notice   within   15   days   of   its  
                              receipt; 

The series of all the above five acts is a sine qua non for the completion of the offence under Section 138 of the Act. Reading the above requirements in the luminance of the relevant provisions of Chapter XIII of the Code, the above 5 actus can take place in 5 different localities and anyone of the Courts exercising jurisdiction over any of such 5 local areas will have the 14.05.2009 Page No. 17/75 C/C No. 1732/P/07 territorial competence to inquire into & try the offence under Section 138 of the Act.

21. The Highest Court of the land had the occasion to deal with the aspect of jurisdictional facts necessary for launching the prosecution under Section 138 of the Act in the landmark case of "K. Bhaskaran" (supra), wherein, Hon'ble Mr. Justice K.T. Thomas, who spoke for the Division bench professed as under:­

11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under Section 177 of the Code "every offence shall ordinarily be inquired into and tried in a court within whose jurisdiction it was committed." The locality where the bank (which dishonoured the cheque) is situated cannot be regarded as the sole criteria to determine the place of offence. It must be remembered that offence under Section 138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act.

12. Even otherwise the rule that every offence shall be tried by a court within whose jurisdiction it was 14.05.2009 Page No. 18/75 C/C No. 1732/P/07 committed is not an unexceptional or unchangeable principle. Section 177 itself has been framed by the legislature thoughtfully by using the precautionary word "ordinarily" to indicate that the rule is not invariable in all cases. Section 178 of the Code suggests that if there is uncertainty as to where, among different localities, the offence would have been committed the trial can be had in a court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon. It reads thus :

"179. Offence triable where act is done or consequence ensues. ­ When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."

13. The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the courts to try the offence was sought to be determined.

14. The offence under Section 138 of the 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.

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15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:

"Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas."

16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act."

The basic understanding of the law propounded as herein above, would unearth that the offence under Section 138 of the Act would not be completed only with the dishonour of the cheque. As stated above, in my discussion, the cause of action for the offence under Section 138 of the Act would arise once the accused fails to make a payment within 15 days as mentioned in Clause (c) of the proviso appended to Section 138 of the Act. After discussing the legal provisions and the position applicable thereto, the 14.05.2009 Page No. 20/75 C/C No. 1732/P/07 Supreme Court held that the court's at the places (which already been discussed herein before in the instant order) whereat the following acts have happened shall be the appropriate court's having the territorial jurisdiction to try the offence under Section 138 of the Act.

                      (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

                      (5)     Failure of the drawer to make payment within 15 
                              days of the receipt of the notice.

Analogous observations were rendered by the Apex Court in the case of "Smt Shamshad Begum" (supra), which need not to be regurgitated.

22. As far as the above jurisdictional points No. 4 & 5 laid in "K. Bhaskaran's" case (supra) are concerned, the Supreme Court had the occasion to explicate the primal tenor, essence & upshot of the said facts qua the territorial jurisdiction of the court in its recent pronouncement delivered in the case of "Harman Electronics (P) Ltd. & Anr. v. M/s National Panasonic India Ltd" reported as 2009(1) RCR (Criminal) 458.

In the above quoted pronouncement, the Apex Court after revisiting the entire law on the germane subject, has announced that mere issuance of statutory notice under Section 138 of the Act from a particular place 14.05.2009 Page No. 21/75 C/C No. 1732/P/07 is an insufficient circumstance to invest territorial jurisdiction on the court situated at that place. It was also confirmed by the Highest Court of the land in this path breaking pronouncement that a distinction has to be borne in mind between the ingredients of the offence & commission of the part of the offence.

Hon'ble Mr. Justice S.B. Sinha who spoke for the bench while delivering the aforesaid celebrated judicial decision, declared that the issuance of the statutory notice by the holder of the cheque is not the sole touchstone for judging the question of territorial jurisdiction in respect of the offence under Section 138 of the Act and explained that rather it is the service of the said statutory notice which is more imperative. His Lordship proceeded on to observe that it is service of the statutory notice and the subsequent failure of the accused to pay the cheque amount within a period of 15 days of its receipt thereof which results in the completion of the offence under Section 138 of the Act, since giving of the notice cannot be said to have any precedence over its service. The above said latest dictum in "Harman Electronic's" case (supra) gives a new dimension to the definition of the 5 jurisdictional places governing the territorial jurisdiction of the court trying or inquiring into the offence under Section 138 of the Act, as was previously announced in "K. Bhaskaran's" case (supra). I cannot afford to locomote any farther without reproducing the pertinent excerpts of this recent judgment of far reaching consequences, which I do so as under :­ "14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself 14.05.2009 Page No. 22/75 C/C No. 1732/P/07 constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos

(a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would.

20. Therefore, the place where an offence has been committed plays an important role. It is one thing to say that a presumption is raised that notice is served but it is another thing to say that service of notice may not be held to be of any significance or may be held to be wholly unnecessary.

24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a 14.05.2009 Page No. 23/75 C/C No. 1732/P/07 negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., [(2001)6 SCC 463] emphasis has been laid on service of notice."

23. Thus the law qua the statutory notice under Section 138, as to be enforced after the delivery of the Apex Court's judgment in "Harman Electronics's" case (supra), would be that mere issuance of statutory notice under Section 138 of the Act from Delhi would not confer territorial jurisdiction on the courts at Delhi either to inquire into or try the offence under Section 138 of the Act, but the court within whose local limits, the statutory notice was, actually or presumably received by the accused, would be the court which will have the jurisdiction to try or inquire into the offence under Section 138 of the Act as per point no. 4 & 5 out of the five places narrated earlier in " K. Bhaskaran's" case (supra).

Thus in the given set of circumstances & facts of the instant case, so understood in the light of "Harman Electronic's" case (supra), wherein the accused is admittedly residing beyond the physical parameters of Delhi, it leaves no room for any second thought that the receipt of statutory notice under Section 138, if at all to be presumed, was beyond the local territory of the courts at Delhi whereby it would not an anomaly to opine that mere issuance 14.05.2009 Page No. 24/75 C/C No. 1732/P/07 of statutory notice from Delhi will not clothe the Courts at Delhi with the territorial jurisdiction to try the instant offence. Thus the argument of the Learned Counsel for the complainant made in regard of the fact that the statutory notice was issued from Delhi, which fact according to him clothes this court with the territorial jurisdiction to try the present complaint fails to impress me and accordingly falls flat.

24. Apart from the above rejected argument, the Scholarly Counsel also had argued on two more jurisdictional aspects.

Firstly, that the impugned cheque was presented by the complainant to its collecting bank at Delhi which means that the presentation of the impugned cheque was made at Delhi & Secondly, that the head office of the complainant is situated at Delhi from where it carries on its usual business & works for gain. On the basis of these dual facts, in all of his legal wisdom, Learned Counsel for the complainant pleads the existence of territorial jurisdiction of this court to inquire into and try the instant offence.

Thus, I shall now delve on to reflect my observations on the above remaining twin jurisdictional facts asserted by the Lettered Counsel for the complainant.

25. First to leap forward, I shall ponder my attention on the question so agitated by the Erudite Counsel for the complainant, which is "Whether the presentation of the impugned cheque by the complainant to its banker at Delhi for 14.05.2009 Page No. 25/75 C/C No. 1732/P/07 collection from the outstation banker of the accused is a sufficient jurisdictional fact for conferring territorial jurisdiction over this court to inquire into & try the offence under Section 138 of the Act".

I shall be deciding this question in the light of understanding the jurisdictional fact no. 2, which is "Presentation of the cheque to the bank" as was held in "K. Bhaskaran's" case (supra), which citation is also relied by the Counsel for the complainant emphatically.

The Lettered counsel for the complainant placed specific focus on the fact that presentation of the cheque to "The Bank" was a vital component of the offence under Section 138 of the Act. He contended that in the present case the cheque was presented to the complainant's Banker at Delhi for collection from the accused banker and, therefore, the complainant could choose and, indeed, file the instant complaint in the Court at Delhi in view of the fact that "Presentation of the cheque to the bank" constituted a component of the offence under Section 138 of the Act.

26. Perusal of the relevant provisions under the Act demonstrates that wherever a cheque is drawn by a person on an account maintained by him with a bank & on presentment, the cheque is returned by the Bank because of insufficiency of funds to honour the cheque, rigors of Section 138 of the Act would be drawn. Clause (a) of the proviso of Section 138 further makes the position clear that cheque has to be presented within a period of six months from the date on which it is drawn. But it has to be presented to "the Bank". The 14.05.2009 Page No. 26/75 C/C No. 1732/P/07 use of expression "the" necessarily implies that it had to be presented to the Bank on which it is drawn within the specified period. "The" is always added to denote a particular thing or a person. The specified bank thus denoted would be the Bank on which the cheque is drawn. This is obvious from plain reading of Section 138 of the Act. When the cheque is drawn on a bank then it must be presented to the bank namely the bank on which it is drawn. If it is presented to any other bank and as a result of the banking business, the payment in turn is made, then the presentment to the bank would be when it is so done and received by the bank which has to make the payment.

27. Unlike statutory provisions, which can be applied by analogy or by inductive or deductive logic to different situations, observations in a judgment have to be read in the context of facts under which the judgment was rendered. Lord Chancellor Halsbury once quoted :­ "That a decision is only an authority for what it actually decides & what is of essence in a decision is the ratio and not every observation found therein nor what logically follows, defines the scope of a judicial precedent." Thus, Judgments cannot be read as creating new statutory rules nor are to be followed like Euclid's theorems oblivious of the Ratio Decidendi expressed by it & therefore, the observations therein are not amenable to the same elasticity, which may apply to the provisions of the statute. Further, while making an observation in the context of facts before it, a Superior Court may not be aware of implications of applying the observations to situations which 14.05.2009 Page No. 27/75 C/C No. 1732/P/07 may not be foreseen. With this caution in mind, it may have to be found out whether the arguments advanced by the Scholarly Counsel for the complainant that the "Presentation to the bank" means "Presentation to the collecting bank of the complainant as well" could be supported by or derived from the decision of the Apex Court in "K. Bhaskaran's" case (supra).

28. In "K. Bhaskaran's" case (supra), as a matter of fact, it was held as proved that cheques in question were issued at the shop of P.W.3 within territorial limits of the trial Court, which fact of drawing of impugned cheque at complainant's office in Delhi or elsewhere in Delhi has neither been alleged nor flagged by the complainant herein either in its present complaint or in the statutory notice issued against the accused under Section 138 of the Act. The five ingredients enumerated by the Apex Court in paragraph 14 of the judgment in "K. Bhaskaran's" case (supra) would uncontroversially attract the provisions of Clause (d) of Section 178 of the Code, since it can be said that the offence punishable under Section 138 of the Act consists of the five actus, enumerated in paragraph 14 of the said judgment. It may be seen that Clauses (2) and (3) in paragraph 14 of the judgment in "K. Bhaskaran's" case (supra) refer to presentation of "the cheque to the Bank" and returning of the said cheque unpaid by "the drawee Bank". A reference to Section 138 of the Act, would also convey that the said section begins with reference to "a banker" and then goes on to refer to "the banker", ....... "is returned by the bank", ..... "by an agreement 14.05.2009 Page No. 28/75 C/C No. 1732/P/07 made with that bank" ..... "the cheque has been presented to the bank", ...... within thirty days of the receipt of information by him from the bank" etc. Thus, the reference to presentation of the cheque or return of the cheque dishonoured by the bank is in relation to the bank on which the cheque is drawn. Considering the usage of indefinite articles "a" and "an" and definite article "the", it would not be permissible to avow that reference to "the bank" gallops within its orbit any bank where the cheque is presented, or any bank from which holder in due course eventually gets information of its dishonour. This is amply made clear by the Apex Court in "K. Bhaskaran's" case (supra) by prefixing the words "bank" and "drawee bank" in Items (2) and (3) in paragraph 14 of the said judgment with definite article "the".

29. The Apex Court in "K. Bhaskaran's" case (supra) must have chosen to prefix the word "bank" by definite article "the" in order too keep off the confusion & troubles that would be created by using indefinite article "a". A cheque is a negotiable instrument which by virtue of befitting endorsement & delivery can be negotiated. If instead of the Courts at the place where the bank on which the cheque was drawn, the Courts at the place where the cheque was presented were to have jurisdiction, drawers of the cheque would be exposed to an unforeseen jeopardy. When a person issues a cheque to another, he unequivocally signifies his intention to make the payment to that another for a consideration which he has received at the bank on which the 14.05.2009 Page No. 29/75 C/C No. 1732/P/07 cheque is drawn. That another may, in turn, negotiate the cheque in favour of third person for a liability, which that another may have to discharge towards such third person. The drawer of the cheque cannot be said to have foreseen that, by such negotiation, his cheque would land at a place far away from the place at which it was meant to be paid, making him liable to be hauled up in a Court at a place where the cheque was presented by such holder in due course. If the cheque was presented to "the bank" (i.e. the drawee bank), there would be no difficulty, but if cheque has been presented at "any" or "a" bank, it would be reading something which is not in the judgment in "K. Bhaskaran's" case (supra) and refusing to give effect to the implication of the use of definite article "the" in item (2) & (3) in paragraph 14 of the judgment of Apex Court in "K. Bhaskaran's" case (supra). Therefore, with utmost humility & with gravid regard to the arguments of the Learned Counsel for the complainant, it is difficult to deduce the ratio sought to be inferred by him from the observations of the Supreme Court in "K. Bhaskaran's" case (supra) made in that context & thus resultantly it must be held that the observations in "K. Bhaskaran's" case (supra) do not support such a perspective of law, rather, what is implicit from "K. Bhaskaran's" case (supra) was reflected by the later 3­Judges bench judgment delivered in "Shri Ishar Alloy Steels Ltd v. Jayaswals NECO Ltd." reported as 2001(1) RCR(Criminal) 834 (which citation is discussed in the later portion of this order).

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30. While creating an offence punishable under Section 138 of the Act, the Parliament has not changed the whole scheme of the Act. Under Section 6 of the Act, a cheque is still defined as a bill of exchange, drawn on a specified banker. The "drawee" is the person directed to pay under Section 7, and Section 61 requires that a bill of exchange has to be presented to "the drawee" & not to any banker, and if the bill is directed to a drawee at a particular place, it must be presented at that place. Section 72 makes the requirement in respect of a cheque clear and enunciates as under :

"72. Presentment of cheque to charge drawer :­ Subject to, the provisions of Section 84, a cheque must, in order to charge the drawer, be presented at bank upon which if is drawn before the relation between the drawer and his banker has been altered to the prejudice of the drawer"

Since all these provisions are left intact, a cheque has to be presented to the drawee bank at the place mentioned on the cheque.

31. Practice of presenting a cheque to the payee's bank or holder's own banker does not make such banker as "the drawee" since such a banker merely undertakes to present the cheque on behalf of the holder to the drawee bank for clearance and thus merely acts as an agent of holder & not as an agent of the drawee bank. This is otherwise clear from the fact that it is the holder who has to bear the expenses qua the clearance of the impugned cheque & not the drawee bank. The choice of definitive article "the" by the Apex Court in items 14.05.2009 Page No. 31/75 C/C No. 1732/P/07 (2) and (3) in paragraph 14 of "K. Bhaskaran's" case (supra) merely gives effect to these statutory requirements.

As already stated, in my modest perspective, the observations in "K. Bhaskaran's" case (supra) do not lend backing to what Learned Counsel for the complainant is trying to infer from it. At the cost of repetition, it has to be pointed out the wording of Section 138 of the Act too does not support the view projected by the Knowledgeable Counsel for the complainant. If the Courts, within whose jurisdiction the cheque was merely presented for realization, were to be allowed to harbor complaints, the result would be opening flood gates for vexation of person who had issued the cheque. A person who issues a cheque on his bank indicates by his act that he intends to make payment at the drawee bank & not elsewhere. Therefore, for the reasons stated above, I am in respectful disagreement with the views propounded by the Erudite Counsel for the complainant because in his arguments, significance of the word "the" in clauses (2) and (3) in paragraph 14 of the judgment in "K. Bhaskaran's" case (supra) has been lost sight of.

32. It has to be reiterated that expressions used in a judgment cannot be read out of the context, & cannot be stretched beyond what is warranted by the factual context. If such was not the requirement, items (4) & (5) in paragraph 14 of "K. Bhaskaran's" case (supra) could likewise be stretched illogically, with oblique motives by unscrupulous litigants. For example, a 14.05.2009 Page No. 32/75 C/C No. 1732/P/07 holder, aware that the drawer who had, say drawn a cheque on a his banker at Chennai branch is away on a holiday at Agartala and his Agartala address is known to the holder, and the holder causes a notice to be served at Agartala, which is neither the place of residence or business of the drawer, could a holder be allowed to invoke jurisdiction of Courts at Agartala because a notice was given to drawer when the drawer was at Agartala? Or, could a holder, on a holiday at Agartala, sends a notice from Agartala and requires payment to be made at Agartala, prosecute the drawer at Agartala on his failure to do so ? The answer to all these questions is to be in negative because a cheque as a negotiable instrument is statutorily required to be discharged at the place mentioned therein.

33. The words, in paragraph 16 of the judgment in "K. Bhaskaran's"

case (supra) regarding widened amplitude have to be read in this background. The Apex Court must not be understood to have held that question of territorial jurisdiction in a proceeding for offence punishable under Section 138 of the Act is utterly irrelevant, or that there is absolutely no restriction on the choice of place of suing. These observations have to be read in the context of what is held in paragraph 14 of "K. Bhaskaran's" case (supra) & therefore the amplitude must be taken to have widened only to the extent indicated in paragraph 14 of "K. Bhaskaran's" case (supra) .

Analogously, same holds good about observations in paragraph 12 14.05.2009 Page No. 33/75 C/C No. 1732/P/07 of "K. Bhaskaran's" case (supra) in respect of the word "ordinarily" appearing in Section 177 of the Code. The Apex Court must be understood to have held that ordinarily the place of suing must have a nexus to the lis but upon making out a case for deviating from this rule, action could be initiated even at some other place. It is not that the word "ordinarily" gives an unbridled exemption to a complainant to choose his forum for hauling up an accused.

34. The another answer to the above discussed question posed by the Erudite Counsel for the complainant lies within the decision of the Supreme Court in "Shri Ishar Alloy's" case (supra), which is a 3­Judges judgment of which full bench Hon'ble Mr. Justice K. T. Thomas was a part, the same Lordship who delivered 2­Judges judgment in "K. Bhaskaran's" case (supra) meaning thereby that the precedent of "Shri Ishar Alloy's" case (supra), which indeed is a larger bench decision, can be taken as an effective tool to decently interpret the meaning of the term "Presentation to the Bank" as a jurisdictional fact so enunciated earlier by their Lordship Hon'ble Mr. Justice K. T. Thomas in "K. Bhaskaran's" case (supra).

In "Shri Ishar Alloy's" case (supra) case one of the main issues was what is meant by "the bank" as mentioned in Clause (a) of the proviso to Section 138 of the Act. Did such bank mean the bank of the drawer of the cheque or Did it cover within its ambit any bank including the collecting bank of the payee of the cheque? To which bank is the cheque to be presented for the purposes of attracting the 14.05.2009 Page No. 34/75 C/C No. 1732/P/07 penal provisions of Section 138 of the Act? In "Shri Ishar Alloy's" case (supra), the Supreme Court held that "the bank" referred to in Clause (a) of the proviso to Section 138 of the Act had reference to the drawee bank on which the cheque is drawn & not all banks where the cheque is presented for collection including the bank of the payee in whose favour the cheque is issued.

The Learned Counsel for the complainant had raised an objection with regard to placing reliance on the Supreme Court decision of "Shri Ishar Alloy's" case (supra) on the ground that it only related to the question of limitation. While it is true that the issue in that case was with regard to presentment of the cheque within the stipulated period of six months, the specific questions, as noted above, were raised before the Supreme Court and were specifically answered by it in the undermentioned fashion:­ "9. The use of the words "a bank" and "the bank" in the Section is indicator of the intention of the Legislature. The former is indirect article and the latter is pre­fixed by direct article. If the Legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is pre­fixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is pre­fixed by the definite article "the". The same Section permits a person to issue a cheque on an account maintained by him with "a bank"

and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. 14.05.2009 Page No. 35/75

C/C No. 1732/P/07 "The" is the word used before nouns, with a specifying of particularising effect opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote particular thing or a person. "The"

would, therefore, refer implicitly to a specified bank and not any bank. "The bank" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee­ bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.

10. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to the (C) bank. The non presentation of the cheque to the drawee­bank within the period specified in the Section would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Sections 2, 72 and 138 of the 14.05.2009 Page No. 36/75 C/C No. 1732/P/07 Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee."

Analogous dictum was promulgated by the High Court of Delhi speaking through Hon'ble Mr. Justice Pradeep Nandrajog in the case titled as "

Shroff Publisher & Distributor Pvt. Ltd. & Ors. v. Springer India Pvt. Ltd."

reported as 2007(IV) CLT 198 (DHC).

Consequently, even if the submission of the Lettered Counsel for the complainant based upon "K. Bhaskaran's" case (supra) that presentment of the cheque to "the bank" constituted a vital component, is to be accepted for the purpose of the present action, it is clear that the expression "the bank" has reference only to the drawee bank.

The cheque herein was initially presented at Delhi with the banker of the complainant for further collection from the outstation banker of the accused, which collecting bank was only an agent of the complainant since it only had to present the impugned cheque to the outstation banker of the accused. The drawee bank in the present case is admittedly situated outside Delhi, meaning thereby, the act of complainant in presenting the impugned cheque to its banker at Delhi for farther collection from the outstation banker of the accused is totally inconsequential for deciding the question of territorial 14.05.2009 Page No. 37/75 C/C No. 1732/P/07 jurisdiction on the construction of the jurisdictional point of "Presentation of the cheque to the bank" as laid in "K. Bhaskaran's" case (supra) so made in the luminance of pronouncement in "Shri Ishar Alloy's" case (supra).

35. Within this backdrop, I am unable to accede to the arguments advanced by the Learned Counsel for the complainant that presentation of the cheque by the complainant to its collecting bank at Delhi will clothe this court with territorial jurisdiction in context of the instant complaint even if the drawee bank is located outside Delhi. In the light of the aforesaid discussion & the law applicable thereto, without losing sight of criminal jurisprudential principle of the strict application of penal statues and their provisions, I feel no impediment in observing to the extent that mere presentation of the cheque at Delhi by the complainant to its collecting bank for onward transmission to the outstation bank of the accused for encashment, even by wildest stretch of imagination, cannot be said to be a fact conferring territorial jurisdiction over this court to entertain the present complaint, more particularly, when the impugned cheque was admittedly dishonoured by the accused banker located beyond Delhi.

36. Farther, nowhere in the entire body of the complaint, the complainant has asseverated that the impugned cheque was drawn in complainant's favour by the accused at Delhi, which actus of drawing of cheque 14.05.2009 Page No. 38/75 C/C No. 1732/P/07 by the accused at Delhi might have conferred jurisdiction over the courts at Delhi but in absence of any averment being adumbrated in the complaint regarding the factum of drawing of the cheque at Delhi by the accused, this court is not obliged to invoke such presumption in complainant's favour regarding the drawing of the impugned cheque at Delhi. The benefit of doubt invariably must go to the accused, more so, when the complainant itself has preferred to keep its lips zipped on the said aspect, despite having an occasion to avow the same in its complaint or in the previously issued statutory notice under Section 138 of the Act. The factual presumptions can only be raised qua the facts which have been specifically asseverated by the complainant in its petition since the court cannot travel beyond what is being adumbrated in the pleadings so as to presume facts whereupon the complainant itself has acquired silence. The absence of assertion of certain facts including the one relating to the drawing of the impugned cheque at Delhi would be inevitably construed as if such facts never actually took place.

The silence of the complainant on the said aspect of drawing of cheque by accused at Delhi operates against the complainant since something which is not being averred either, expressly or by necessary implication, neither can be contemplated nor can be assumed by the court when in given circumstances the complainant itself had chosen not to assert the factum of drawing of cheque at Delhi despite having the occasions to do so, resulting thereby, what is now to be presumed is that the impugned cheque was not drawn by the accused at Delhi. The necessary corollary to the omission on 14.05.2009 Page No. 39/75 C/C No. 1732/P/07 behalf of the complaint to assert the factum of drawing of the instant cheque at Delhi has to be construed in a manner against the complainant thereby giving an end result of the non happening of the drawing of the cheque in question at Delhi.

37. Next it was argued by the Lettered Counsel for the complainant that the anterior transactions which resulted in issuance of the impugned cheque by the accused in favour of the complainant had taken place at Delhi, which sole fact is suffice to confer territorial jurisdiction over this court in context of the instant complaint.

The mere factum of the anterior transactions leading up to the drawing of the impugned cheque having taken place at Delhi, In my considered legal conceptualization, fails to persuade me so as to conclude that this Court possess territorial jurisdiction to entertain the present complaint.

There might have been numerous negotiations/meetings having taken place inter se the instant parties before the transaction fructified between the parties, thereby resulting in drawing of the impugned cheque, but all these transactions neither can be interpreted nor to be confused with the facts constituting cause of action for the offence under Section 138 of the Act. The cause of action for launching the prosecution under Section 138 of the Act would only embark on the accused actus of drawing of the cheque in favour of the complainant & would terminate on the omission of the accused to pay the demanded cheque amount in conformity with the statutory legal notice, either 14.05.2009 Page No. 40/75 C/C No. 1732/P/07 expressly or impliedly served upon the accused, incorporating within its orbit the intervening happenings that of the presentation of the cheque by the complainant to the drawee banker of the accused, the factum of its subsequent dishonour by the accused banker and the receipt of the statutory notice issued under Section 138 of the Act. So now what transpires is that the preceding transactions/dialogues/negotiations inter se the parties taking place antedate to the drawing of the impugned cheque are, per se, totally inconsequential for pondering over the question of constitution of the offence under Section 138 of the Act & resultant conferment of territorial jurisdiction over this court to inquire into & try the offence under Section 138 of the Act. The preceding transactions/negotiations between the parties taking place antedate to the drawing of the cheque merely facilitates & generates an occasion for drawing of the impugned cheque but the said preceding transactions/meetings/dealings inter se the parties had nothing to do either with the generation, commission or completion of the offence of dishonour of cheque defined under Section 138 of the Act, which offence owns its birth to the stage starting from the drawing of the impugned cheque.

38. A line of differentiation is to be drawn between the Civil actions for recovery or otherwise founded upon the dishonour of cheque and the Criminal lis founded upon the dishonour of the cheque under Section 138 of the Act. The jurisdictional facts would be of sweeping amplitude when it comes to deciding the question of territorial jurisdiction of the court in Civil actions 14.05.2009 Page No. 41/75 C/C No. 1732/P/07 founded upon the dishonour of the cheque, in which given circumstances Section 20 of Code of Civil Procedure (Hereinafter referred to as the "C.P.C." for the sake of conciseness) would come into play whose operation may bestow territorial jurisdiction on the courts within whose local limits all or any of the preceding transactions/negotiations resulting in the issuance of the impugned cheque had taken place since in such Civil actions, the drawing of the impugned cheque would be considered as an offshoot of the prior transactions/deliberations between the litigating parties. However, when it comes to the criminal action under Section 138 of the Act, the state of affairs would be wholly different since the legal penal provision under Section 138 of the Act defining the offence of dishonour of the cheque is to be strictly construed in accordance with the tenor of the words employed therein. In a criminal action under Section 138 of the Act, the Court is primarily concerned with aspect of trying & punishing the accused for the offence envisaged under Section 138 of the Act relating to the dishonour of the cheque issued by him and for that purpose, only the facts having the direct relation with the dishonourment of the impugned cheque are to be looked into to elicit the cause of action and jurisdictional facts & thence it can be very well said that the offence under Section 138 of the Act would only be taken to be commencing from the drawing of the impugned cheque whereby all preceding proceedings/transactions/negotiations inter se the parties becomes totally inconsequential for determining the territorial jurisdiction of the court to try & adjudicate the offence under Section 138 of the Act. 14.05.2009 Page No. 42/75

C/C No. 1732/P/07 If I were to uphold that all or any of the preliminary transactions/negotiations between the parties resulting in the drawing of the impugned cheque also forms the gist of jurisdictional facts for the purposes of inquiry into or trial of the offence under Section 138 of the Act, that would end up creating an absurd & anomalous situation, wherein an unscrupulous complainant can very easily aver that various preceding negotiations resulting in the drawing of the impugned cheque had taken place at numerous locations, which is something otherwise also not unimaginable in business like transactions, which might yield an unwanted end result of conferment of local jurisdiction over numerous courts, wherein each of said preliminary transactions/negotiations allegedly had taken place. All this would lead to an unwanted result whereby the accused would be asked to answer the offence under Section 138 of the Act alleged against him at any of such places though the facts commencing from the drawing of the impugned cheque & onwards had taken place within a circumscribed jurisdiction, whereby, it would be found that because the various facets of preliminary transactions/negotiations had taken place at various places, the courts at any of these places would be found eligible to deal with the offence under Section 138 of the Act within whose jurisdiction, except for such preliminary transactions, neither the impugned cheque was drawn, nor it was presented to the banker of the accused, nor the statutory notice was received under Section 138 of the Act by the accused etc. etc. This absurd situation will necessarily render the ingredients of the said offence envisaged under Section 138 of the Act nugatory 14.05.2009 Page No. 43/75 C/C No. 1732/P/07 not only by defeating the very definition of the offence enumerated under 138 of the Act but also by defeating the very purpose of Chapter XIII of the Code which defines the parameters for the territorial jurisdiction of criminal courts. If all the courts wherein any or either of the preliminary negotiations/transactions leading to the drawing of the impugned cheque are conferred with territorial jurisdiction in cases of Section 138 of the Act that surely would create a haphazard situation whereby it would surface that the courts in whose local jurisdiction none of the material facts constituting the cause of action for the offence under Section 138 of the Act had taken place would still be found to be trying the offence under Section 138 of the Act which no doubt would defeat the very purpose of defining the offence of dishonour strictly under Section 138 of the Act, separately from the civil liabilities & actions based upon it under the Indian Contract Act. The legislature in all its wisdom has preferred to give a strict definition to the offence of dishonour under Section 138 of the Act which definition intentionally lacks the mention about any preceding transactions leading to the drawing of the cheque by treating it separate right & remedy from the civil right & liability founded upon the dishonoured cheque under the Indian Contract Act. When the legislature itself has distinguished between the jurisdictional facts, ingredients & cause of action qua the civil & criminal actions based upon the dishonour of the cheque, then it is not the duty of the court to shed or deny that recognition & distinction.

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39. The cause of action and jurisdictional facts for the civil action based upon dishonour of cheque are entirely distinct from that of the criminal action based thereupon under Section 138 of the Act which neither overlaps nor are symmetrical. The jurisdictional facts for the civil action for recovery founded upon the impugned cheque are much more wider than that in case of the offence under Section 138 of the Act. The jurisdictional facts for the civil action for recovery of the amount of the dishonoured cheque owes their existence to the common law & law of Contract and are governed by Section 20 of the C.P.C., but as far as the criminal liability qua the dishonoured cheque is concerned, in view of the specific & strict provision of Section 138 of the Act, the court cannot travel beyond the ingredients & jurisdictional facts as laid under Section 138 of the Act for assuming the local jurisdiction.

Narrating so at the cost of repetition, the au naturel perusal of definition of the offence under Section 138 of the Act surfaces that the jurisdictional facts for prosecution under Section 138 of the Act would involve only the facts commencing from the drawing of the impugned cheque and not the facts emanating at any stage earlier to it, though they might be relevant in cases of civil liability based thereupon. Henceforth, it can be very well observed that none of the preliminary negotiations/transactions resulting in the drawing of the impugned cheque in favour of the complainant can be said to be ingredients of the offence of dishonour of the cheque neither can be labeled as the jurisdictional facts for assuming territorial jurisdiction by the court to try the present complaint. The preceding transactions might be of 14.05.2009 Page No. 45/75 C/C No. 1732/P/07 some importance to the complainant in a civil case instituted or to be instituted by him for recovery of the amount due in respect of the dishonoured cheque but in the present criminal proceedings under Section 138 of the Act, the said transactions taking place prior to the drawing of the cheque are totally inconsequential since in such litus the court has to assume jurisdiction only on the basis of the facts commencing from drawing of the impugned cheque till the omission of the accused to comply with the statutory notice under Section 138 of the Act.

Accordingly, what surfaces from my discussion is that neither the taking place of any of anterior transactions inter se the parties within the jurisdiction of this court nor the presentation of the cheque by the complainant to its banker at Delhi for collection of the cheque amount from the outstation bank of the accused are suffice to confer territorial jurisdiction over this court to deal with the instant complaint. Accordingly, the arguments advanced by the Learned Counsel for the complainant in that regard are seemingly without any flash and thus are rejected.

40. Next a fragile attempt was endeavored by the Learned Counsel for the complainant to confer territorial jurisdiction over this court by flagrantly arguing that since the head office of the complainant is situated at Delhi from where it carries on its usual business and works for gain, consequently it must be presumed the cause of action for the offence of dishonour of the cheque has arisen at Delhi, whereby this court has territorial jurisdiction to deal with the 14.05.2009 Page No. 46/75 C/C No. 1732/P/07 instant complaint.

I am afraid that the aforesaid point raised by the Enlightened Counsel for the complainant has again squarely failed to prevail over me. Taking benefit of this occasion, I would like to ponder my attention over the legal notice issued by the complainant in the instant case under Section 138 of the Act, with a motive to demand the amount of the impugned cheque from the accused. Nowhere in the said notice, it has been either, expressly or impliedly, narrated by the complainant that the payment of the impugned cheque was demanded at Delhi, in particular. Rather, what has been very loosely demanded by the complainant is that the accused was to asked to pay the cheque amount to the complainant & thats all. No place, much less Delhi, has specifically been referred by the complainant as the place of payment of said demanded amount. The only specific demand of the complainant was with regard to the payment of the money involved in the impugned cheque, not with regard to the place of payment and in absence of any assertion made by the complainant in respect of any specific place fixed for the compliance of the demand raised in the said statutory notice, it has to be inferred that the accused was granted liberty by the complainant to comply with its demand for the payment of the impugned cheque from wherever he wanted to & at any place of his desire, which could in the instant scenario very well be the place of the accused as well. If that being so, I am afraid that merely because the head office of the complainant or its residence is at Delhi doesn't necessarily implies that the accused was required to meet the complainant's demand at Delhi. The 14.05.2009 Page No. 47/75 C/C No. 1732/P/07 accused, on the strength of the liberty provided to it by the complainant itself, could have complied with the complainant's demand by making the payment of the impugned cheque amount either to the agent of the complainant situated at his place or at any other available place across the country or even through Online Banking from his place or through Cheque or Bank Draft drawn on his bank in favour of the complainant.

Thus fixing Delhi as the solo place for payment of the demanded payment, in the manner now sought to be alleged by the complainant, would no doubt result in construing the legal notice issued by the complainant contrary to what has been vocalized therein by the complainant itself. If the complainant intended to have the demand so raised in its statutory notice to be met by the accused only at its place, the complainant should have narrated specifically in its legal notice that the accused has to comply with its demand only at Delhi, which unfortunately is not the case herein. Something which has neither been narrated nor being intended by the complainant in its statutory notice cannot be presumed by the court. The choice with regard to the place for making the payment of the impugned cheque was granted to the accused by the complainant itself in its legal notice, whose terms are now to be construed in favour of the accused in absence of any intriguing circumstances, more so, whence the complainant itself had not opted to place any fetters on the liberty of the accused qua the place to meet with its demand for the payment, this court is also not obliged to do so now by construing that the accused was demanded payment of the impugned cheque only at Delhi. 14.05.2009 Page No. 48/75

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41. Even otherwise, if it is assumed for the sake of arguments, that accused was required to meet the demand as per the legal notice at the Delhi office/residence of the complainant, even then, it cannot be said that it would result in arousal of any part of cause of action at Delhi. There is an obvious reason for this conclusion of mine, one which is otherwise not difficult to comprehend. Once it has been asseverated by complainant that accused failed to meet its demand as per the legal notice under Section 138 of the Act, then it is not difficult to understand that such omission of the accused to meet with the complainant's demand becomes part of the cause of action, which omission is to be taken as completed & frozen at such time & place of the accused where he had received the said legal notice under Section 138 of the Act & from where the demanded amount was not released. Any fact taking place or supposed to take place after the said omission on part of the accused cannot be termed as the one forming part of the cause of action for the offence under Section 138 of the Act since the said offence stood accomplished on the accused's omission to meet with the demand of the complainant, which omission can only be said to have completed at place of accused or at best, at the place where he had received the statutory notice & not at any other place, be that, the residence or office of complainant either at Delhi or elsewhere. Once it is admitted by the complainant that accused had omitted to meet with its demand as per its legal notice in toto, and that the accused is residing at a place outside Delhi where he also had received the notice under Section 138 of the Act, it cannot be 14.05.2009 Page No. 49/75 C/C No. 1732/P/07 inferred that accused's omission to meet with the demand of complainant under legal notice had taken place at Delhi, merely because either the complainant has its office or residence at Delhi or because the complainant intended to receive payment at Delhi.

The cause of action for the offence under Section 138 of the Act stood completed on accused's omission to pay the impugned cheque amount despite expiry of 15 days from the receipt of statutory notice, which omission in all possible circumstances, can only be said to have taken place either at place where the accused resides or where he had received the said notice & not elsewhere.

Omission is a species of "Negative Actus" which depends, travels, exists & is attached with person either committing it or in other words, with the person refraining from doing an act. Thus from this angle as well, when the demand of the complainant verbalized in his statutory notice was never met by the accused, it cannot be said that the omission of the accused to comply with the complainant's demand would shift to a place beyond the place of the accused when the actus of omission of the accused to comply with the said legal notice was itself personal in nature. I am being successful in tracing certain pertinent portion of the precedent set by the Apex Court lending strength to the aforesaid legal analogy drawn by me. In the case reported as "Harman Electronic's" (supra), Hon'ble Mr. Justice S.B. Sinha propounded as following:­ 14.05.2009 Page No. 50/75 C/C No. 1732/P/07 "24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., [(2001)6 SCC 463] emphasis has been laid on service of notice.

42. Now once it has been the legal position that the "Debtor must seek the Creditor" and on application of the ratio of the said rule, it used to be presumed by the courts dealing with the cases under Section 138 of the Act that after the service of statutory demand notice under Section 138 of the Act, the accused was to comply with the demand of the complainant raised therein either, at the head office or residence of the complainant, as the case may be. But in the situation which appears as of now, I am unable to buy the applicability of the said common law principle of "Debtor must seek the Creditor", if no place of payment is specified or implied in the contract, to the instant criminal proceedings instituted under Section 138 of the Act & the conclusion is for the apparent reason that the said principle belongs to the 14.05.2009 Page No. 51/75 C/C No. 1732/P/07 domain of common law, not criminal law and thus its applicability is to be restricted to common law remedies only, not to the one's available under criminal law.

As per Section 49 of Indian Contract Act, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise and then require the promisee to perform it at such place but the said principle is to be confined only to civil litigations under the Indian Contract Act & can not be applied to the criminal prosecutions based upon negotiable instruments as the instant one.

My quest for the correct understanding of the legal concept involved herein enabled me to set my hands on the latest report of the Highest Court of the land delivered in the case of "Harman Electronic's" (supra), wherein following worth quoting excerpt was observed by Hon'ble Mr. Justice S.B. Sinha:­

25.We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis­a­vis the provisions of the Code of Criminal Procedure.

26. Learned counsel for the respondent contends that the 14.05.2009 Page No. 52/75 C/C No. 1732/P/07 principle that the debtor must seek the creditor should be applied in a case of this nature.

27. We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle."

In the light of the preceding discussion, I regret that I have to decline the contention of the Learned Pleader for the complainant that since it has its office at Delhi then due to the application of the principle of "Debtor must seek the Creditor", it must be presumed that accused was demanded to make payment of the impugned cheque at place of the complainant in Delhi, which according to the complainant conferred territorial jurisdiction on this court and the same is accordingly rejected.

43. Next another flimsy endeavor was made by the Enlightened Counsel for the complainant by standing on the legs of his argument that once the summons having being issued against the accused by the court and cognizance stood taken of the offence, the court can not revert back to the question of lack of its territorial jurisdiction, which if done would amount to virtual reviewing/recalling of its previous order of summoning & taking of the cognizance.

I respectfully regret that the said argument of the Learned Counsel 14.05.2009 Page No. 53/75 C/C No. 1732/P/07 for the complainant lacks legal backing. The territorial competency of the court to try or inquire into an offence & the competence of the court to take cognizance of an offence are two diametrically different aspects of Criminal Jurisprudence & Law.

As far as taking of cognizance of an offence by the Magistrate is concerned, such power of the Magistrate is not fettered by the territorial restrictions, which are so applicable in respect of an inquiry into or trial of an offence.

The word "Cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means ­ "become aware of" and when used with reference to a Court or Judge it means "to take notice of, judicially". The word, "Cognizance" is used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence & that it is a word of indefinite import, and is not perhaps always used in exactly the same sense. Taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate as such, applies his mind to the suspected commission of an offence. Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled.

The cognizance is taken of an offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses prima facie commission of an offence and proceeds further in the matter, it must be held to have taken cognizance of the offence. 14.05.2009 Page No. 54/75

C/C No. 1732/P/07 One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no offence is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the Court may consider it appropriate to send the complaint to police for further investigation under Section 202 of the Code. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that Court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence. 14.05.2009 Page No. 55/75

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44. However, the jurisdiction aspect becomes relevant only when the question of inquiry or trial arises. It is, therefore, a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class, his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance, he may have to decide as to whether the Court which has jurisdiction to inquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier.

Thus, from the aforementioned legal position it is clear that a Magistrate, after taking cognizance of the offences, can decide the question of territorial jurisdiction. Ultimately, if the Magistrate finds that he has no territorial jurisdiction, he can only return the complaint or the charge sheet, as the case may be, for presenting it to a proper Court, which has territorial jurisdiction.

I am being successful in tracing a precedent lending strength to the aforesaid legal analogy drawn by me. In the case reported as "Trisuns Chemical Industry v. Rajesh Aggarwal & ors." 1999 (4) RCR (Criminal) 223, Hon'ble Mr. Justice K.T. Thomas propounded as following :­ "10. It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to jurisdiction of the criminal courts "in inquiries and trials". That chapter contains provisions regarding the place where the inquiry and trial are to take place. Section 177 says that "every offence shall ordinarily 14.05.2009 Page No. 56/75 C/C No. 1732/P/07 be inquired into and tried by a Court within whose local jurisdiction it was committed." But section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of inquiry and trial can as well be in a court "within whose local jurisdiction such thing has been done or such consequence has ensued." It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence. Power of the court to take cognizance of the offence is laid in Section 190 of the Code. Sub­sections (1) & (2) read thus :

"(i) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub­ section (2), may take cognizance of any offence ­

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon a police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(ii) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub­section (1) of such offences as are within his competence to inquire into or try."

11. Section 193 imposes a restriction on the court of sessions to take cognizance of any offence as a Court of original jurisdiction. But "any" Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not.

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12. The Only restriction contained in Section 190 is that the power to take cognizance is "subject to the provisions of this Chapter". There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these : "Except as hereinafter provided". Those words are now replaced by "Subject to the provisions of this chapter." Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a Magistrate of the power to take cognizance of an offence ­ of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non­obstinate clauses. Any way that is a different matter.

13. The jurisdictional aspect becomes relevant only when the question of inquiry or trial arises. It is therefore a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to inquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier."

14.05.2009 Page No. 58/75

C/C No. 1732/P/07 Thus keeping in view the aforesaid discussion, now what drops is that even if the cognizance has been taken by a Magistrate qua an offence committed beyond his territorial jurisdiction, it doesn't mean that he has committed an illegality, rather it is something which he was legally empowered to.

The question of territorial jurisdiction can be looked into and decided by the court at any stage of its proceedings & if the court comes to a conclusion that it has no territorial jurisdiction, then as per Section 201 of the Code, which no doubt is invokable at any stage of the proceedings, the complaint will have to be returned to the complainant for presentation before the competent court of territorial jurisdiction.

45. At this leg of his arguments, the Learned Counsel for the complainant has drawn my attention to the Section 462 of the Code for alleging that the defect of territorial jurisdiction is only technical in nature which does not go to the very root of the matter & if the court lacking territorial jurisdiction tries or inquires into a case, such defect does not effect the legality of the proceedings, unless there is a failure of justice. The Knowledgeable Counsel for the complainant is accurate to the extent that the defect of territorial jurisdiction is technical in its nature, which is otherwise clear from the language incorporated under Section 462 of the Code by the legislature. But the question is that, Can it still be said that merely because the defect of territorial jurisdiction is of technical nature, the court should close its eyes towards such 14.05.2009 Page No. 59/75 C/C No. 1732/P/07 kind of territorial defect, once the same comes to the notice of the court. The answer is surely to be in Negative.

The Learned counsel for the complainant has tried to invoke the curative provision of Section 462 of the Code and has contended that the error of territorial jurisdiction would amount to an mere irregularity curable under the said Section. The application of that curative section in my view is wholly misconceived. The said provision would only apply to those cases where the trial has proceeded to its termination and the higher court is satisfied that no failure of justice has been occasioned by the trial having taken place in a wrong court, but where the defect as to territorial jurisdiction has come to the notice of the court before or during the commencement of the trial, no shelter can be taken behind Section 462 of the Code. To say that, because the complainant has after all instituted its complaint though in a wrong court, it should be allowed to proceed as no prejudice would be occasioned on that account to the opposite side, is virtually to suggest that the complainant is at liberty to choose his own forum, regardless of its having the requisite local jurisdiction, and then to say that the wrong step taken by him should, be perpetuated as here is no prejudice caused to the opposite side. In my view Section 462 of the Code cannot be made an excuse to overlook a material irregularity pertaining to local jurisdiction when it has come to the notice of the court before or during the commencement of the trial, as is the case herein {See "Abhay Lalan v. Yogendra" 1981 Cr. L.J. 1667}.

The rule is that an offence is to be inquired into and tried by a 14.05.2009 Page No. 60/75 C/C No. 1732/P/07 court within whose local jurisdiction it was committed. There are of course exceptions to this rule. Simply because Section 462 of the code is there to save the decision of the court which had no territorial jurisdiction to try the case, it cannot be said that a Magistrate can be indifferent on the question of jurisdiction. The lex fore or law of jurisdiction in which relief is sought controls as to all matters pertaining to remedial (i.e. procedural) as distinguished from substantive rights. If the question of jurisdiction is noticed, the trial can be commenced only after deciding that question, otherwise Sec 177 of the code will become otiose. Not only that, the application of Sec 462 of the Code arises only after the decision is rendered by a court which has no territorial jurisdiction. The decision regarding territorial jurisdiction is to be given on the basis of the averments contained in the complaint or the charge as the case may be. It is not the evidence that is yet to be adduced in the case at the trial that is going to confer jurisdiction on the court.

Thus the fact that the curative provisions of Section 462 of the Code may be available at a later stage, should not be an excuse to overlook a material irregularity pertaining to territorial jurisdiction, when the same has come to the notice of the Court before or during the trial. In the present case, the defect or irregularity having been come to the notice of the Court, I think it proper that the said irregularity should be avoided. Section 462 of the Code has got to be applied after the decision or finding or order is arrived at by any Magistrate or a Criminal Court in a wrong jurisdiction. If any defect of the territorial jurisdiction has come to the notice of the criminal court in a 14.05.2009 Page No. 61/75 C/C No. 1732/P/07 proceeding at any stage of the case before it, it becomes the duty of the Magistrate to see whether he had, according to law, territorial jurisdiction to deal with the same. He can not take resort to Section 462 of the Code and assume local jurisdiction, which if done will no doubt be illegal.

A complaint should ordinarily indicate that the offence complained of, was committed within the territorial jurisdiction of the Court in which the complaint is filed. It is on the terms of the complaint that the Magistrate has first to inform himself as to the nature of the case, and to see whether he has jurisdiction to entertain it. If the question of territorial jurisdiction is raised or otherwise comes to the court's notice, trial can only be commenced after deciding that question.

If the court is found to be not competent to proceed with the inquiry or trial on the ground that that it lacks territorial jurisdiction, the proper course open is to return the complaint for presentation to proper Court as per Section 201 of the Code. This is the procedure to be followed even if it is a case where the lack of jurisdiction was for the first time noticed after the trial had commenced.

46. Accordingly, it is to be observed that the issue of lack of territorial jurisdiction though is technical in nature, but once the said defect comes to the notice of the court at any stage of the proceedings, it has to decided then and there, thereby not leaving the said question undecided under the shield of 14.05.2009 Page No. 62/75 C/C No. 1732/P/07 Section 472 of the Code. It is no longer Res Integra that the question of territorial jurisdiction is capable of being decided at any stage of the criminal proceedings, no matter the court might have taken cognizance or had issued summons against the accused. The power of the court to return the complaint under Section 201 of the Code for lack of territorial jurisdiction is unfettered, unrestricted and is of vast amplitude thereby empowering the court to invoke the same at any stage of proceedings so as to enable it to return the complaint for presentation before the competent court of territorial jurisdiction at any stage prior to the pronouncement of the judgment.

Thus I fail to trace any legal backing in the argument of the Erudite Counsel for the complainant that the court can not decide the issue of lack of territorial jurisdiction at this stage once the cognizance stood taken and process stood ordered against the accused or that it should leave the same untouched due to incorporation of Section 462 in the Code by the legislature. Thus the said argument resultantly falls flat on ground without impressing the court.

47. As far as the argument of the Lettered Counsel for the complainant emphatically addressed to the extent that the return of the complaint by the court for lack of territorial jurisdiction at this stage would amount to virtual recalling of the prior action of the court qua the taking of cognizance or issuance of summons against the accused is concerned, the same though appears to be fascinating on its first blush but on prudent scrutiny it also lacks requisite legal strength therein. The return of the complaint on lack of 14.05.2009 Page No. 63/75 C/C No. 1732/P/07 territorial jurisdiction at this stage would have also amounted to recalling/reviewing of the prior steps of taking of cognizance & issuance of the process against the accused, if the court apart from returning the complaint on the defect of territorial jurisdiction, also simultaneously opines that the complaint discloses no prima facie offence against the accused under Section 138 of the Act in respect of which the cognizance was earlier taken & process was issued against the accused. But if the court is returning the complaint for the sole reason of defect of territorial jurisdiction without traveling into the facet of whether the offence under Section 138 of the Act is or was made out against the accused or not, then even by wildest stretch of imagination, it cannot be assumed that the court by returning the complaint for want of territorial jurisdiction at this stage either is recalling the cognizance previously taken or process earlier issued against the accused.

48. No doubt that the recalling or reviewing of interlocutory orders by a magisterial court is not legally permissible but that is not the situation herein since the court in presenti is not opining on the aspect of existence or non existence of the alleged offence against the accused, which aspect already stood dealt with by the Learned Predecessor of this court when the process was issued against the accused by the court, rather the court as of now is only confined to the question of lack or existence of its territorial jurisdiction. The offence, no doubt, is prima facie made out against the accused under Section 138 of the Act from the material on record but the question now is not that but it 14.05.2009 Page No. 64/75 C/C No. 1732/P/07 rather pertains to the existence or absence of the territorial jurisdiction of this court to try the offender, which in present case, as per my observed understanding, is lacking whereby the court is left with little option except to return the complaint without traveling into any other aspect.

It is also not that the return of complaint for lack of territorial jurisdiction at this juncture would result in De Novo initiation of proceedings by the transferee court which have already been ordered by this court against the accused before the question of territorial jurisdiction arouse, which might be the one of the apprehension entertained by the complainant in case its complaint is returned. It is well settled that once a complaint is returned for want of territorial jurisdiction, the court before which the complaint would be represented on such return will proceed from the stage at which it was so returned and that being the position, it cannot at all be said that the complainant will have to bear De Novo proceedings on the return of its complaint. In the eventuality of the return of the complaint for defect of territorial jurisdiction, after representation of the complaint before the competent court of territorial jurisdiction, the complainant can pursue his complaint from the stage at which it was so returned. From this perspective as well, it cannot be construed that the instant court by returning the complaint can be said to be recalling or reviewing its prior order of taking of cognizance or summoning of the accused, rather the court can only be said to be guiding the accused to approach the appropriate court of territorial jurisdiction so that the accused can be effectively tried which resultantly will enable the justice to 14.05.2009 Page No. 65/75 C/C No. 1732/P/07 prevail.

Simply because the court had previously taken cognizance or issued summons against the accused, neither does mean that the court has impliedly acquired territorial jurisdiction to try the offender, when in reality it never had any, nor does it means that the question of court's territorial jurisdiction stood impliedly adjudicated in favour of the complainant. For assuming that the question of the territorial jurisdiction of this court stood decided by virtue of the court prior actus of taking of cognizance or issuance of summons against the accused, a specific order ought to have been passed in that regard at the stage of taking of cognizance & issuance of process against the accused. Thus merely on the basis of existence of a general order having been passed qua the taking of cognizance or issuance of process against the accused on the prima facie satisfaction of the court at that stage in respect of the commission of the offence under Section 138 of the Act by the accused, it would be a fatality to presume that the issue of territorial jurisdiction of this court stood decided at that stage, affirmatively & impliedly, in favour of the complainant.

Something which was not expressly decided by the court earlier, which ought to have been done expressly, cannot be said to have been done impliedly merely on the basis of conjunctures & surmises propounded by the complainant. I feel no hitch in observing that since up till this stage, the issue of territorial jurisdiction has not been specifically decided either way by the court, it cannot be said that it was so impliedly decided earlier simply because the 14.05.2009 Page No. 66/75 C/C No. 1732/P/07 court has taken cognizance and ordered process against the accused. Thus I see no legal infirmity, in case the issue of territorial jurisdiction is specifically decided at this stage when it has so come to the notice of the court whereby it also can return the complaint for want of territorial jurisdiction.

49. Consequently I am unable to buy the argument of the Learned Counsel for the complainant that the return of complaint after the taking of cognizance & issuance of process against the accused by the court at this juncture would amount to virtual recalling of the prior order of taking of cognizance & issuance of summons against the accused and the same is accordingly rejected.

50. I would have parted with the discussion on the issue of territorial jurisdiction by ordering the return of the instant complaint after what has been narrated herein above whereby it is clear that no cause of action as per five jurisdictional places propounded in "K. Bhaskaran's" case (supra) has taken place within the local limits of this court, but there is one more aspect rovering over my mind which needs discussion i.e. issue pertaining to the Principle of "Forum Conveniens" & its application on to the factual matrix of the instant case. Applying the ratio of the said principle, it would be beyond the realm of doubt that the present court is surely a "Forum Inconveniens" as far as the trial of or inquiry into the offence made out in the instant complaint is concerned wherein except for the fact relating to location of the complainant at Delhi, the 14.05.2009 Page No. 67/75 C/C No. 1732/P/07 entire relevant residum evidence sought to be adduced by the complainant at the trial to bring home the offence of Dishonour of Cheque against the accused would be available at a place outside Delhi whereat the accused & his banker are both stationed. The facts required to be proved at the trial by the complainant to secure conviction of accused or by the accused to fetch his acquittal would involve the respective proving & disproving of the below said facts :­ A) Firstly, that the accused has drawn the impugned cheque in favour of the complainant;

B) Secondly, that the accused had drawn the said cheque, in whole or part, discharge of his debt or liability owing towards the holder of the cheque;

C) Thirdly, that the said cheque was subsequently is honoured by the banker of the accused; and D) Lastly that the accused failed to pay the demanded cheque amount within 15 days of the receipt of the legal notice issued under Section 138 of the Act.

51. As far as the Facts No. (A) & (B) narrated herein above are concerned, the complainant has to adduce no independent evidence to prove the same since the said facts will be presumed in its favour via Section 118 & 139 of the Act. The only residuary facts required to be proved by the complainant by its evidence would be that the cheque was dishonoured by the accused banker on presentation & that the accused had failed to comply with 14.05.2009 Page No. 68/75 C/C No. 1732/P/07 the demand notice issued under Section 138 of the Act, which facts then the accused will have to disprove to have the balance of the case tilted in his favour.

To prove above Fact No. (C), the complainant will have to summon the concerned officer from the accused banker with relevant record, which piece of evidence would only be conveniently available within the jurisdiction whereat the banker of the accused is stationed. The burden to prove service of the statutory notice under Section 138 of the Act against the accused, if the same is at all denied by the accused, can be effectively discharged by the complainant by means of presumption of service envisaged under Section 27 of General Clauses Act & Section 114 (e) of the Indian Evidence Act, while, if the accused does not dispute the service of the said legal notice, that will create no difficulty for the complainant to prove the service of the legal notice. The next fact relating to the omission of the accused to comply with the said legal notice can be proved by the complainant through its simple disposition made in that regard in his examination in chief, in both of the possible scenario's wherein either the service of the legal notice is admitted by the accused or the same is presumed against him. All this would effectively discharge the complainant's burden in respect thereof, leaving the same to be disproved later on by the accused through cogent rebutting evidence.

The aforesaid discussion would reveal that the only fact in respect of which independent evidence will have to be requisitioned by the complainant at the trial will be with regard to the above Fact no. (C) by summoning relevant record & officer from the accused bank, which facility will 14.05.2009 Page No. 69/75 C/C No. 1732/P/07 be conveniently available at the place where the accused banker is situated, which in the present case is the same place where the accused is located and thus for proving Fact No. (C) leaving apart other facts which will be presumed in complainant's favour, the relevant evidence would be conveniently & expeditiously available at the abovesaid place outside Delhi, which in my belief would be a "Forum Conveniens".

The court has to strike a balance between the respective rights of the complainant, rights of the accused, prompt availability of the germane evidence, convenience of the pertinent witnesses vis a vis the Code with an ultimate objective to ensure that justice should prevail, the offender does not go Scott free & the Criminal Law does not lose its efficacy or track. Only because the complainant is situated at Delhi doesn't mean that the remaining factors involved in the instant litus in respect of which the balance is to be maintained by the court will also share the same level of comfort & convenience at Delhi. Out of the four facts as narrated above which the complainant will have to prove & consequently the accused has to disprove, Facts No. (A) & (B) would be presumed in favour of the complainant in above dilated manner while for the respective proving & disproving of the residuary facts, the necessary evidence would be expeditiously & cheaply available at the place narrated outside Delhi whereat both the accused and his banker are located, meaning thereby no material inconvenience would be caused to the complainant if he is directed to the said court outside Delhi having jurisdiction over such place, rather the said exercise would facilitate an expeditious, effective and justifiable 14.05.2009 Page No. 70/75 C/C No. 1732/P/07 trial of the offence complained of thereby making that court as a "Forum Conveniens".

The law always tends to tilt in favour of effective justice & on comparison of the convenience of the complainant with the cheap & expeditious availability of the evidence, witnesses & accused, which factors also contribute to the effectiveness of the judicial proceedings, In my considered conceptualization, the balance obviously tilts against the trial of the instant complaint by this court thereby making the court in whose jurisdiction the accused & his banker are situated as a reasonably more convenient place for prosecution of the offender herein.

52. Even otherwise, the court cannot lose track of the factual position that in cases of accused and his banker both situated at a place outside Delhi, a lot of inconvenience is caused to the independent public witnesses involved in the tussle, particularly, the most material one's from the banker of the accused, who though had nothing to do with the controversy inter se the parties, but has to suffer a lot only because their presence & evidence is materially required for proving the most important facet of the dishonourment of the cheque and thus the court has to sympathetically consider the ordeal of these independent witnesses as well who play a major role in the trial & are equally material for the trial like the complainant & accused themselves are. The court has to view & consider sympathetically the annoyance & inconvenience incurred to these public witnesses because of the toll of long distance traveling they have to bear 14.05.2009 Page No. 71/75 C/C No. 1732/P/07 to a place far flung away from their working place just to render evidence in cases akin to instant one wherein the prosecution is launched by the complainant at its place.

53. Moreover in most of the cases like the present one wherein the accused and his banker are situated outside, the process of trial & inquiry tends to shed its teeth and effectiveness as in most of these cases once the processes are issued against the accused or to the witnesses, due to the way of functioning of the postal department & other Government departments involved therein, it take years & years for bringing home the accused and the witnesses, which delay results in frequent adjournments & overflowing dockets of the court full of such like indisposed cases. If the complainant, in cases of accused & his banker both situated outside Delhi with facts akin to the present case wherein no part of cause of action arose within Delhi, is routed to that jurisdiction outside Delhi, that would result in saving the aforesaid precious years spent by the court like the instant one which lacks territorial jurisdiction just to secure the presence of the accused and the witnesses, as in that eventuality the accused and his banker along with pertinent evidence would be available at a handful distance from the court exercising jurisdiction over them and as such can be called up conveniently & expeditiously by such court for the purposes of an effective trial with an added advantage of saving of the precious judicial time which a court like the one at Delhi, has to devote merely to secure the presence of the accused and the witnesses. The convenient 14.05.2009 Page No. 72/75 C/C No. 1732/P/07 and expeditious securing of the presence of the accused, witnesses and evidence by the court within whose local jurisdiction the accused & his banker are located can be without any loss of time & resources as compared to the toll taken by this court within whose local limits neither the accused is situated nor his banker is located nor any part of cause of action has arisen, which no doubt would yield better results thereby making the criminal procedure & law more effective and deterrent, as it is required to be. It is to be understood that Criminal law in order to be effective has to be deterrent and for being deterrent, it has to made effective and thus where the criminal law ceases to be effective, as is often happening in cases of cheque dishonour where the accused as well as his banker are situated beyond Delhi, it tends to lose its teeth whereby it is also failing in its task of clouding a deterrent effect on the accused, which farther results in an anarchic & failed state of affairs wherein the criminal law pertaining to dishonour of Cheques is being flouted by unscrupulous persons at their whims and fancies without any fear of law. The reason for this state of affairs is obviously the long drawn process which a court has to take up because of certain handicaps it faces in dealing with the outstation accused persons. Because of the above narrated factors, the litigation belonging to the domain of Section 138 of the Act has seen a spurt and escalation in the recent years as now people are no longer afraid of playing with Section 138 of the Act once they have become aware of the fact that it is going to take years for bringing home their guilt. The founding reason for this sort of situation is the loss of effectiveness & deterrence of law of crimes in 14.05.2009 Page No. 73/75 C/C No. 1732/P/07 cases of cheque dishonour involving such accused who with his banker are both located outside the local jurisdiction of the courts dealing with cheque dishonour case's, which court's have assumed jurisdiction for the sole reason that within their local jurisdiction, the office or location of the complainant is placed. Thus I do not feel hesitant in observing that the place where the accused and his banker are situated always projects a convenient forum for trial of offence under Section 138 of the Act, when no other figment of cause of action has arisen within the jurisdiction of the court where the complainant's office is situated, meaning thereby that the present court is certainly a "Forum Inconveniens" since in such like matters whenever a contest & the trial is incumbent, it is in the interest of all concerned, that the place where the impugned cheque has been issued, presented & dishonoured should be the place for detailed inquiry & adjudication of all the issues, more particularly, when in all such matters apart from basic parties, the witnesses definitely also play a pivotal role during the trial, whose convenience should not be lost sight of by the court at any cost.

54. In view of reasons assigned herein above under my detailed discussion on the issue pertaining to territorial jurisdiction of this court to entertain the offence under Section 138 of the Act alleged against the accused in response to the arguments advanced by the Knowledgeable Counsel for the complainant, I am of the firm opinion that no part of cause of action had arisen at Delhi meaning thereby that this court surely lacks territorial jurisdiction to 14.05.2009 Page No. 74/75 C/C No. 1732/P/07 entertain the instant complaint & is thus under an legal obligation to return the same oblivious of the stage of the proceedings. Resultantly, the complaint is returned to the complainant after making necessary endorsement as regards the date of filing of the complaint, date of return of the complaint and reason for its return for presentation before the proper court of territorial jurisdiction, whereat the appropriate cause of action has arisen in the light of above discussion. The original complaint containing the above ordered endorsements with original documents of the complainant be returned to the complainant on filing of the certified copies of the same in the court. The issue of territorial jurisdiction henceforth stands answered in negative against the complainant. File be consigned to record room after due compliance. Announced in the open court Dated :­ 14.05.2009 (SIDHARTH MATHUR) M.M. / Central­ II Delhi 14.05.2009 Page No. 75/75