Gujarat High Court
Sagar Shaileshbhai Patel vs State Of Gujarat on 22 September, 2022
R/SCR.A/7513/2022 ORDER DATED: 22/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 7513 of 2022
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SAGAR SHAILESHBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
HIREN S SOMAIYA(8031) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 22/09/2022
ORAL ORDER
1. By way of this Special Criminal Application under Articles 226/227 of the Constitution of India r/w Section 482 of the Cr.P.C., 1973, the petitioner - original accused No.2 seeks to quash the criminal proceedings being Criminal Case No.682 of 2021 under Section 138 of the Negotiable Instruments Act pending before the learned 2 nd Additional Civil Judge & JMFC, Karjan.
2. The case of the complainant is as under :
2.1 The petitioner herein along with co-accused - Nainaben Shaileshbhai Patel, floated a residential scheme, namely, 'Jaslok Residency' on the land bearing City Survey No.1748 of village Anklav, Taluka & District - Anand. In the same scheme, the complainant proposed to buy a Flat No.102 admeasuring 103.64 sq.mtrs. and pursuant thereto, an Page 1 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022 R/SCR.A/7513/2022 ORDER DATED: 22/09/2022 agreement to sell dated 17.4.2018 came to be executed between Nainaben Shaileshbhai Patel and complainant with one Shri Shailendrasinh Himmatsinh Solanki. At the time of executing the agreement to sell, the consideration of Rs.7,53,000/- was paid by the complainant to the accused persons.
2.2 Thereafter, since the accused persons were not executing the sale deed by accepting sale consideration, a notice dated 15.1.2021 was served upon the accused persons by the complainant.
2.3 On 9.2.2021, it was mutually agreed that the accused persons will return the consideration that they have received while executing the agreement to sell and accordingly, a Cheque bearing No.275088 dated 3.3.2021 of State Bank of India, Sevasi Branch amounting to Rs.2,53,000/- came to be issued. It is to be noted here that another Cheque bearing No.275089 dated 3.3.2021 of State Bank of India, Sevasi Branch amounting to Rs.5,00,000/- was also issued by the accused to the complainant.
2.4 Accordingly, the complainant had presented the said cheque in his bank Account No.31615273992 of State Bank of India, Karjan branch. However, the State Bank of India, Karjan Branch informed the complainant to deposit the said cheque in the Home Branch at Sevasi. Therefore, on 4.3.2021, the complainant deposited the said cheque in Sevasi Branch Page 2 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022 R/SCR.A/7513/2022 ORDER DATED: 22/09/2022 of State Bank of India which came to be dishonoured with an endorsement 'funds insufficient".
2.5 A statutory notice dated 18.3.2021 came to be issued by the complainant and the same came to be served on the accused persons on 23.3.2021, to which the accused persons neither replied nor paid the cheque amount within the stipulated time.
2.6 It is pertinent to note here that the complainant has also filed a suit being Regular Civil Suit No.12 of 2021 before the Civil Judge, Karjan under the provision of the Specific Reliefs Act, 1963 for seeking specific performance of the agreement to sell dated 17.4.2018.
2.7 Hence, the Criminal Case No.682 of 2021 under the provisions of the Negotiable Instruments Act came to be filed before the JMFC, Karjan, wherein the learned 2 nd Additional Civil Judge and JMFC, Karjan vide its order dated 5.5.2021 was pleased to issue process upon the accused persons.
3. Being aggrieved by the aforesaid, the present petitioner
- original accused No.2 has approached this Court by way of present Special Criminal Application for seeking appropriate reliefs.
4. I have heard Mr.Hiren S. Somaiya, learned counsel appearing for the petitioner and Mr.Pranav Trivedi, learned Additional Public Prosecutor for the respondent - State.Page 3 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022
R/SCR.A/7513/2022 ORDER DATED: 22/09/2022
5. Mr.Hiren Somaiya, learned counsel appearing for the applicant, mainly raised an issue of territorial jurisdiction of JMFC, Karjan. According to Mr.Somaiya, the learned JMFC, Karjan has got no territorial jurisdiction to entertain and decide the criminal proceedings arising out under the provisions of the Negotiable Instruments Act. Learned counsel submitted that the cheque in question is dishonoured at Sevasi and, therefore, the learned JMFC, Sevasi would have the sole territorial jurisdiction to decide the proceedings arising out of the Negotiable Instruments Act.
5.1 Mr.Hiren Somaiya, learned counsel, submitted that in view of the aforesaid, the learned Magistrate, Karjan appears to have failed in applying its judicious mind at the time while issuance of process upon the present petitioner. According to Mr.Hiren Somaiya, at the time when the learned Magistrate issued the process, it is obligatory on the part of learned Magistrate to check and/or verify the aspect of territorial jurisdiction. Having failed in applying judicious mind, the learned Magistrate has committed a serious error and thereby, the impugned proceedings deserve to be quashed and set aside.
5.2 Mr.Hiren Somaiya, learned counsel, lastly, submitted that the proceedings under Section 138 of the Negotiable Instruments Act as well as the civil suit under the provision of the Specific Reliefs Act cannot be maintainable simultaneously.
Page 4 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022R/SCR.A/7513/2022 ORDER DATED: 22/09/2022 5.3 By making above submissions, Mr.Hiren Somaiya, learned counsel, requested this Court to quash and set aside the criminal proceedings, in the interest of justice.
6. Per contra, Mr.Pranav Trivedi, learned Additional Public Prosecutor, vehemently opposed the present petition contending, inter-alia, that the proceedings instituted under the provisions of the Negotiable Instruments Act is well within the territorial jurisdiction of the learned JMFC, Karjan and thereby, this Court may not exercise its extraordinary discretionary jurisdiction under Section 482 of the Cr.P.C. To substantiate his contentions, Mr.Trivedi further submitted that has relied upon a reported decision of this Court in the case of Brijendra Enterprise & Ors. v. State of Gujarat & Ors., reported in 2016 (3) GLH 143.
6.1 By making above submissions, Mr.Trivedi requested this Court to dismiss the petition.
7. I have heard the learned counsel appearing for the respective parties and have gone through the material placed on record by the respective parties. No other and further submissions have been canvassed by the learned counsel appearing for the respective parties, except what are stated herein-above.
8. Having heard the learned counsel appearing for the respective parties and having considered the materials on Page 5 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022 R/SCR.A/7513/2022 ORDER DATED: 22/09/2022 record, the only question that falls for consideration of this Court is whether the learned JMFC, Karjan has territorial jurisdiction to try the offence punishable under Section 138 of the Negotiable Instruments Act?
9. In my view, the aforesaid question is no more res- integra. The Coordinate Bench of this Court has, in the case of Brijendra Enterprise (Supra), elaborately discussed the issue as to the territorial jurisdiction by considering various provisions of the Negotiable Instruments Act as well as Amendments in law. Thus, it would be profitable to refer to and rely upon the relevant paragraphs of the aforesaid decision. Relevant Paragraph Nos.23 to 31, 34, 35 and 36 are reproduced below :
"23. In view of the amendment, a complaint for dishonour of cheque under Section 138 of the Act can be now filed only in the Court situated at the place where the bank, in which the payee has account, is located.
24. Let me give an example to understand the jurisdiction according to the amendment :
(1) 'A' holds an account with the Navrangpura Branch, Ahmedabad, of 'XYZ' Bank, issues a cheque payable at par in favour of 'B'. 'B' holds an account with the M.S. University Road Branch, Vadodara, of the 'PQR' Bank, deposits the said cheque at the Surat Branch of the 'PQR' Bank and the cheque is dishonoured. The complaint will have to be filed before the Court having the local jurisdiction where the M.S.University Road Branch, Vadodara, of the 'PQR' Bank is situated.
(2) 'A' holds an account with the Navranpura Branch, Page 6 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022 R/SCR.A/7513/2022 ORDER DATED: 22/09/2022 Ahmedabad, of 'XYZ' Bank, issues a cheque payable at par in favour of 'B'. 'B' presents the said cheque at the Vadodara Branch of the 'XYZ' Bank (but 'B' does not hold account in any branch of the 'XYZ' Bank) and the cheque is dishonoured. The complaint will have to be filed before the Court having the local jurisdiction where the Navrangpura Branch, Ahmedabad, of the 'XYZ' Bank is situated.
25. Therefore, to summarise, first, when the cheque is delivered for collection through an account, the complaint is to be filed before the Court where the branch of the bank is situated, where the payee or the holder in due course maintains his account and, secondly, when the cheque is presented for payment over the counter, the complaint is to be filed before the Court where the drawer maintains his account.
26. Secondly, once a complaint for dishonour of the cheque is filed in one particular Court at a particular place, then later on if there is any other cheque of the same party (drawer) which has also dishonoured, then all such subsequent complaints for dishonour of the cheques against the same drawer will also have to be filed in the same Court (even if the person presents them in some bank in some other city or area). This would ensure that the drawer of the cheques is not harassed by filing multiple complaints for dishonour at different places. It necessarily implies that even multiple complaints for dishonour of cheques against the same party can be filed only in one Court even though the cheques might have been presented in different banks at different places.
27. Thirdly, all criminal complaints for dishonour of cheques pending as on 15th June 2015 in different Courts in India would be transferred to the Court which has the jurisdiction to try such case in the manner mentioned above, i.e. such pending cases will stand transferred to the Court having jurisdiction over the place where the bank of the payee is located. If there are multiple complaints of dishonour pending between the same parties as on 15th June 2015, then all such Page 7 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022 R/SCR.A/7513/2022 ORDER DATED: 22/09/2022 complaints would be transferred to the Court having jurisdiction to try the first case.
28. To put it briefly, the (Amendment) Act takes care of the interest of the payee of the cheque while, at the same time, also takes care to see that the drawer of the multiple cheques is not harassed by filing different complaints at different locations to harass him (if more than one cheque is bounced).
29. The (Amendment) Act virtually supersedes the decision of the Supreme Court in the case of Dashrath Rupsingh Rathod (supra).
30. It is not in dispute that the accused is a resident of Badalapur, State of Uttar Pradesh. The cheque in question was issued at Uttar Pradesh. It appears that the complainant deposited the cheque with the ICICI Bank Limited, Gorakhpur Branch, Gorakhpur, Uttar Pradesh. The same was accepted by the bank without there being any account of the complainant with the same. It was dishonoured with the intimation "funds insufficient". However, as explained by the complainant, the complainant was to receive the credit of the said cheque at the centralized pooling account in Ahmedabad. Since the cheque could not be cleared, the intimation regarding the same was given by the ICICI Bank Limited, JMC House, Ahmedabad Branch, to the complainant at its address of the registered office in Ahmedabad.
31. Whatever may be the arrangement of the complainant with its banker, could it be said that the cheque was deposited in the ICICI Bank Limited at Ahmedabad i.e. the branch which actually gave intimation to the complainant regarding the dishonour of the cheque. The argument canvassed on behalf of the complainant is that since the requisite cheque amount was to be credited in the account maintained by the company with the ICICI Bank Limited at Ahmedabad and the intimation of dishonour was also by the branch of the ICICI Bank Limited at Ahmedabad, his complaint at Ahmedabad in the Court of the learned Metropolitan Magistrate is maintainable.
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34. Thus, the decision of the Supreme Court makes it clear that the offence under Section 138 of the Act can be inquired into and tried only by a Court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated. Indisputably, in the case in hand, the cheque was collected by the complainant at Uttar Pradesh and was presented in the ICICI Bank Limited, Gorakhpur Branch, Gorakhpur, Uttar Pradesh. Thereafter, the bank acted according to the cash management service agreement as explained by me earlier.
35. The new banking system provides that the payee can present the cheque for collection in any branch of the ICICI Bank anywhere in the country without there being any account being maintained in the said branch. The branch bank which accepts the cheques will thereafter process the same, and as explained above, the credit of the requisite amounts mentioned in the cheque would be given in the centralized pooling account, i.e. like in the present case, in the centralized pooling account maintained by the complainant at Ahmedabad.
36. At this stage, it is important to look into the explanation in Section 142(2). The explanation provides that for the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or the holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or the holder in due course, as the case may be, maintains the account. For example, like in the present case, the cheque was delivered for collection at the ICICI Bank, Gorakhpur branch, Uttar Pradesh, where the complainant has no account but, by virtue of the said explanation, it is deemed to have been delivered at the ICICI Bank, JMC House Branch, Ahmedabad, where the account is maintained.:
10. In view of aforesaid exposition of law, in my considered Page 9 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022 R/SCR.A/7513/2022 ORDER DATED: 22/09/2022 opinion, the arguments advanced by the learned counsel for the petitioner that the learned JMFC, Karjan has got no territorial jurisdiction, is bereft of any merits and the same is rejected.
I answer the question accordingly.
11. So far as the contention raised by the learned counsel for the petitioner with regard to simultaneous proceedings under the provision of the Negotiable Instruments Act and the Specific Reliefs Act is concerned, in my considered opinion, there cannot be any embargo on the criminal proceedings, more particularly under Section 138 of the Negotiable Instruments Act that the same shall not be continued and/or maintainable where the civil proceedings are pending. Even otherwise, the nature of civil proceedings under the provision of Specific Reliefs Act and the criminal proceedings under the provision of the Negotiable Instruments Act are materially different, more so the reliefs claimed in the civil proceedings are also different in nature. Therefore, the said contention is also hereby rejected.
12. In view of foregoing discussion, the present petition filed by the petitioner under Section 482 of the Cr.P.C. is hereby not entertained and is dismissed accordingly.
(NIRAL R. MEHTA,J) V.J. SATWARA Page 10 of 10 Downloaded on : Fri Sep 23 21:22:45 IST 2022