Madras High Court
Mr.M.Palanichamy vs )Union Of India on 31 July, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31.07.2012 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.9172 of 2010 M.P.No.1 of 2010 Mr.M.Palanichamy ... Petitioner Vs... 1)Union of India Rep. by Secretary to Government, Law Department, New Delhi. 2)The Secretary to Government Law Department, Government of Tamil Nerd, Secretariat. Fort St.George, Chennai-600 009. 3)M/s.Percept-H PTV Ltd., P-22, Raghuvanshi Estate, Senate Bata Margi, Lower Parole, Mumbai-400 013. 4)M/s Parapet-H PTV Ltd., 2nd Floor No.77, Chambers Road, Raja Annamalaipuram, Chennai-600 028. 5)The Learned Metropolitan Magistrate-62, Dada, Mumbai. ... Respondents Prayer : Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Declaration, declaring that when the jurisdiction with regard to the settlement of dispute is restricted between the parties by an agreement at Chennai, proceedings launched by the third respondent outside the agreed jurisdiction at Mumbai in Case No.23196/SS/2009 before 62nd Metropolitan Magistrate Court is not valid and binding in so far as the petitioner is concerned. For petitioner : Mr.S.N.Amaranath For Respondents : M/s.Giridhara Rae & D.R.Raghunath O R D E R
Whether the High Court of Judicature, Madras, can issue a writ in the nature of Declaration and set at naught the proceedings initiated on a private complaint under the provisions of the Negotiable Instruments Act, 1881, before the criminal court outside the territorial jurisdiction of the Madras High Court is the moot question raised in this writ petition.
2. At the foremost, it has to be taken note of that the petitioner has already raised a similar question before the Bombay High Court in Criminal Writ Petition No.409 of 2010 and vide order dated 08.02.2010, the Bombay High Court, has directed the petitioner to raise the dispute before the concerned criminal court and the same has been raised by the petitioner and answered in Criminal Revision Application No.56 of 2010 on 15.04.2010. Despite the same, the petitioner has urged the same contentions in this writ petition by way of a writ of declaration, hence the adjudication.
3. The petitioner, Managing Director of M/s.Galaxy Amaze Kingdom Ltd., Chennai, has filed the present writ petition for a declaration, declaring that when the jurisdiction with regard to the settlement of dispute is restricted between the parties by an agreement at Chennai, proceedings launched by the third respondent outside the agreed jurisdiction at Mumbai in Case No.23196/SS/2009 before Learned 62nd Metropolitan Magistrate Court is not valid and binding insofar as the petitioner is concerned.
4. M/s.Galaxy Amaze Kingdom Ltd., Chennai, is a company manufacturing Nutrivita health drink and other products. According to the Managing Director, it has fixed assets of more than 100 Crores. There are 4 brand values worth Rs.175 Crores. It has a manufacturing factory and other machineries worth several Crores. The products of the company have been received well by the public. It is an indigenous company. The company used to advertise its products through various advertising companies and one among them was Precept-H PTV Ltd., a Multi National Advertising Agency, Madras, 4th respondent herein. According to the petitioner, prior to the filing of the writ petition, the petitioner company has given more than 40 lakhs worth advertisements to Precept-H PTV Ltd., Mumbai and paid the said sum regularly by way of Demand Drafts, cheques, payable at Chennai only. The petitioner has further submitted that for the purpose of settlement or any litigation, the contracts executed by the company confer territorial jurisdiction only to the Courts at Madras.
5. Whiles, there was a dispute between the petitioner and the said advertising company, in respect of one particular advertisement, payment for the said advertisement was disputed. The Advertisement company seemed to have deposited the advance security cheques for a sum of Rs.6,66,961/- and got it dishonoured. According to the petitioner, a sum of Rs.4,10,705/- has already been paid to the advertising company. It is the case of the petitioner that suppressing the same, the advertising company has filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, on the file of Learned 62nd Metropolitan Magistrate Court, Dada, Mumbai, against the Company and the Directors of the company.
6. The petitioner has further submitted that in the bill raised by the 4th respondent advertisement company, a condition has been imposed that payment due under the invoice would be made only at Chennai, subject to the jurisdiction of Madras Courts, and as per the agreement entered into between the parties, M/s.Galaxy Amaze Kingdom Ltd., Chennai, has stipulated a condition that all the disputes arising out of a contracts can be made only within the territorial jurisdiction of Chennai Courts. Therefore, when a complaint was filed by the 4th respondent before the Learned 62nd Metropolitan Magistrate, Dada, Mumbai, an objection was raised regarding the territorial jurisdiction and considering the objection raised, an oral order was passed on 29.04.2009 postponing the issuance of process. Lateron, on 30.06.2009, summons were issued ignoring the objections, on the sole ground that cheque was dishonoured at Mumbai.
7. The petitioner has further submitted that no part of cause of action has arisen within the territorial jurisdiction of Mumbai Courts and that the entire transactions have taken place only in Chennai, where the agreement was entered into between the parties. According to the petitioner, the cheque was issued in Chennai, notice to the petitioner was issued at Chennai. The 4th respondent is also having office at Chennai and therefore, the petitioner has submitted that the place of dishonour of cheque alone would not confer jurisdiction on the payee to institute a criminal complaint against him at Mumbai, under Section 138 of the Negotiable Instruments Act, 1881. It is also the case of the petitioner that in all the invoices of the 4th respondent, it has been clearly mentioned that if any dispute arises between the parties, Courts in Chennai alone will have jurisdiction. According to Mr.R.N.Amarnath, learned counsel for the petitioner, the above facts have been suppressed by the complainant in the notice issued under Section 138 of the Act and that therefore the complaint lodged before the Learned 62nd Metropolitan Magistrate, Dada, Mumbai, lacks bona fides. He has further contended that being aggrieved by the issuance of summons, a Criminal Revision Application was filed before the Learned Sessions Court, Sewree, Mumbai, on 15.04.2010 and the Learned Judge has rejected the plea to transfer or to quash the summons.
8. The petitioner has further submitted that since number of prosecutions were levelled against the company and its Directors, he was constrained to file W.P.No.28645 of 2006, seeking for a declaration, declaring that in a case where jurisdiction is restricted between the parties by an agreement in business transactions, at a particular place, any proceeding launched outside the agreed jurisdiction, even under Section 138 of the Negotiable Instruments Act, 1881, is not valid and binding and in the said writ petition, this Court was pleased to grant interim stay. At this juncture, though the learned counsel for the petitioner requested for tagging of both the writ petitions, the request was rejected on the ground as the prayer in both writ petitions are one and the same, any orders to be passed in the writ petition, would be made applicable to the other case, if pleadings are one and the same.
9. In support of the above pleadings, and inviting the attention of this Court to a decision in Oil and Natural Gas Commission Vs. Uptake Kaman Bass and others, reported in 1994 (4) SCC 711, R.N.Amaranath, learned counsel for the petitioner submitted that for instituting a complaint under Section 138 of the Negotiable Instruments Act, the entire cause of action has to be taken and mere receipt of an intimation from the bank situated outside the territorial jurisdiction of Chennai courts, does not confer any right to the payee to prefer a complaint in a place of his choice. According to the learned counsel, an agreement entered into between the parties confer jurisdiction and territorial jurisdiction for preferring a complaint under Section 138 of the Negotiable Instruments Act, 1881, depends upon various factors such as, location of both the companies with their registered offices or branches, the conditions in the invoice, conferring jurisdiction on any specific Court/s, in the case of any dispute between the parties, the place of issuance of cheques and mere dishonour of cheque at Mumbai alone does not decide the place of institution of the complaint. Learned counsel for the petitioner submitted that the overall conduct of the parties has to be taken into consideration, while considering the issue relating to territorial jurisdiction and that there should be any harassment by the payee, by choosing a place of his choice. In this context, he referred to a decision in Oligarch Muslim University Vs. Vinery Engineering Enterprises (P) Ltd., reported in 1994 (4) SCC 710, relied on in Oil and Natural Gas Commission Vs. Uptake Kaman Bass and others, reported in 1994 (4) SCC 711, where the Supreme Court, after considering several decisions and on the facts and circumstances of that case, and particularly, the averments made in the petition that it did not disclose that even a part of the cause of action has arisen within the territorial jurisdiction of Calcutta High Court, held that the criminal complaint ought not to have been entertained.
10. He also submitted that in Navinchandra N.Majithia Vs. State of Maharashtra, reported in AIR 2000 SC 2966, the Supreme Court, after considering the expression "cause of action" with reference to the jurisdictional aspect of the courts, held that merely because an FIR was registered at a particular state, the police cannot contend that no part of cause of action had arisen within the territorial jurisdiction limits of another state and if a writ petition is filed before the High Court, seeking for transfer or quashing of the complaint, a direction can always be issued to transfer the investigation to other state. Contending inter aila that since the entire cause of action had arisen within the territorial jurisdiction of the courts in Chennai, i.e., execution of contract, issuance of cheque, raising of invoice bills, issuance of notice under Section 138 of the Negotiable Instruments Act, and the place of business, location of the registered offices of the disputing parties etc., learned counsel for the petitioner submitted that when in the above judgment, the Supreme Court has made it clear that even FIR registered in one state, can be transferred to another state, the proceedings initiated under Section 138 of the Negotiable Instruments Act, on the file of the Learned 62nd Metropolitan Magistrate, Dada, Mumbai, has to be declared as not valid and binding insofar as the petitioner is concerned.
11. Placing reliance on a decision of the Division Bench Judgment of the Kerla High Court in Krishnakumar Melon Vs. Neoteric Informative (P) Ltd., reported in I (2002) BC 512 (DB), learned counsel for the petitioner further submitted that in the abovesaid decision, an important question of law came up for consideration before the Hon'ble Division Bench of the Kerla High Court, as to whether the Court under Section 482 of the Criminal Procedure Code, can quash a criminal complaint pending in a Court outside the Kerla State and inviting the attention of this Court to paragraph 7 of the judgment of the Kerla High Court, learned counsel for the petitioner submitted that in the reported case, even if the Court at Mumbai does not fall under the jurisdiction of the Kerla High Court for the purpose of Article 227 or Section 482 of the Criminal Procedure Code, yet the Division Bench of the Kerla High Court held that the power of the Court can be exercised under Article 226 of the Constitution of India for compelling reasons in rare occasions, and therefore prayed to invoke the powers and declare the proceedings launched by the third respondent outside the agreed jurisdiction at Mumbai in Case No.23196/SS/2009 before the learned 62nd Metropolitan Magistrate Court as not valid. According to the learned counsel for the petitioner, when the only exception in the bundle of facts being the place of dishonour of cheque and all other events, forming part of cause of action, as stated supra, have taken place at Chennai, within the territorial jurisdiction of Chennai Courts, the criminal proceedings initiated by the 4th respondent before the Learned 62nd Metropolitan Magistrate, Dada, Mumbai, has to be declared as not valid.
12. Placing reliance on a decision made in Musaraf Hussein Khan Vs. Bhagheeratha Engineering Ltd., and others, reported in II (2006) BC 515, learned counsel for the petitioner further submitted that when the 4th respondent was aware of all the transactions which had taken place, within the territorial jurisdiction of the Courts in Chennai, preferring a complaint at Mumbai, under Section 138 of the Negotiable Instruments Act, outside the territorial jurisdiction of Chennai Courts, is nothing but quorum juries, to harass the petitioner and to bring pressure on him to settle the amount, contrary to the terms and conditions of the contract entered into between the parties.
13. Referring to the decision of the Supreme Court in Harman Electronics (P) LTD and another Vs. National Panasonic India Ltd., reported in I (2009) BC 649 (SC), learned counsel for the petitioner further submitted that in the above reported case, parties were carrying on business at Chandigarh. The head office of the complainant was situated at Chandigarh. The transaction was carried on in Chandigarh. cheque was issued and presented at Chandigarh. But the complaint was made at Delhi, on the sole ground that notice was sent from Delhi. In the abovesaid circumstances, the Supreme Court, by observing that it is necessary to strike a balance between the right of the complainant and the right of the accused, vis-a-vis the provisions of the Criminal Procedure Code, and quashed the criminal complaint registered at Delhi and held that mere sending of notice from Delhi alone would not give rise to a cause of action to file a complaint at Delhi. Applying the said judgment to the facts of the present case, learned counsel for the petitioner submitted that there is similarity in the facts, that all the transactions, except the presentation of the cheque and dishonour at Mumbai, and therefore, the relief sought for should be ordered.
14. Per contra, on the basis of the orders passed in the Criminal Writ Petition No.409 of 2010 dated 08.02.2010 by the High Court of Bombay and Criminal Revision Application No.56 of 2010 dated 15.04.2010 and learned counsel for the 4th respondent submitted that the present writ petition is devoid of merits, and it is nothing but an attempt to stall the criminal proceedings initiated against the petitioner on the file of the Learned 62nd Metropolitan Magistrate Court, Dada, Mumbai. He further submitted that all the contentions which are now raised before this Court, for a writ of declaration have already been considered by the Learned Sessions Judge, Sewree, Mumbai, in Criminal Revision Application No.56 of 2010 dated 15.04.2010 and when the petitioner has filed a writ petition before the Bombay High Court, challenging the orders summoning the petitioner, the High Court, by order dated 08.02.2010, has already rejected his submissions, on the ground that it is always open to the petitioner to urge the question of territorial jurisdiction before the Learned 62nd Metropolitan Magistrate Court, Dada, Mumbai. In the abovesaid circumstances, learned counsel for the 4th respondent submitted that instead of facing trial before the Criminal Court at Mumbai, the petitioner, in order to protract the proceedings, has approached this Court, with the prayer of declaration. For the abovesaid reasons, he prayed for dismissal of the writ petition.
15. Before adverting to the facts of this case, this Court deems it fit to have a cursory look at some of the relevant provisions of the Negotiable Instruments Act and the Code.
Section 138 of the Negotiable Instruments Act, 1881
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 honor 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 offense and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, 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 fifteen 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.
Section 142 of The Negotiable Instruments Act, 1881
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 offense 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;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offense punishable under section 138.] Section 177 of The Code Of Criminal Procedure, 1973
177. Ordinary place of inquiry and trial. Every offense shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
16. At the outset, this Court also deems it fit to consider the decision made in Crl.W.P.No.409 of 2010, dated 08.02.2010 by the Bombay High Court and the Criminal Revision Application No.56 of 2010 dated 15.04.2010 passed by the Learned Sessions Judge, Sewree, Mumbai.
17. Criminal Revision Application No.56 of 2010 has been filed by Managing Director, the petitioner herein, and Directors of M/s.Galaxy Amaze Kingdom Ltd., Chennai, against the State of Maharashtra and Precept-H PTV Ltd., Mumbai, testing the correctness of an order dated 30.06.2009, by which, the Learned 62nd Metropolitan Magistrate Court, Dada, Mumbai, in C.C.No.23196/SS/2009 issued process against the petitioners therein for the offenses punishable under Section 138 of the Negotiable Instruments Act.
18. According to the complainant, there was an invoice of balance of Rs.13,22,241/- due and payable by the company, Managing Director and other Directors. A cheque bearing No.757203 dated 25.09.2008 for Rs.6,66,961/- has been drawn on ICICI Bank, Branch Chennai, payable to the complainant at Mumbai. The complainant relying on the assurance and instructions given by the revision applicants therein, deposited the aforesaid cheque with their bankers, HDFC Bank, Mumbai, for realization, but it was returned unpaid by their bankers with a bank memo dated 03.03.2009, with the endorsement, "insufficient funds". Intimation of dishonour of cheque has been received at Mumbai. Thereafter, a notice dated 14.03.2009, by registered post, has been issued to the revision applicants, (Company, Managing Director and Directors), calling upon them to make payment. Despite acknowledgment of notice, there was failure on their part to pay the amount. The Learned 62nd Metropolitan Magistrate Court, Dada, Mumbai, after recording the statement of the complainant and considering the documents attached thereto, made an inquiry under Section 202 of the Criminal Procedure Code and finding that there was a prima facie case, passed an order dated 30.06.2002, issuing process. The arguments of the revision applicants therein, were that the office of the complainant Viz., Advertising company was situated at Chennai. The complainant rendered services only at Chennai. The cheque was issued at Chennai and the contents of the foot notes of invoice dated 31.05.2008 contained a special clause, that payment under the invoice would be made at Chennai and therefore, the Courts in Chennai alone have jurisdiction to entertain the complaint and not the Court at Dada, Mumbai.
19. By way of reply, in the revision application, the complainant has contended that under the instructions of the revision applicants, (Company, Managing Director and Directors), the complainant presented the cheque for realization at Mumbai and after dishonour of the said cheque, issued notice. The advertising company and the complainant has further submitted that payment was intended to be paid at Mumbai and therefore, when an intimation was given by their bankers, a complaint was lodged with the Learned 62nd Metropolitan Magistrate Court, Dada, Mumbai, who has territorial jurisdiction.
20. Placing reliance on the decision made in Crl.W.P.No.409 of 2010, dated 08.02.2010, a submission has also been advanced by the complainant that the point of territorial jurisdiction and the role of the revision applicants in the company affairs had already been considered by the Bombay High Court and therefore, the Managing Director and other Directors have no right to raise the same objections before the Learned Sessions Judge. As regards the invoice dated 31.05.2008 annexed as document, by the revision applicants therein, the Learned Sessions Judge Sewree, Mumbai, by observing that when the same had not been produced before the concerned Magistrate, no new material or evidence of defence can be let in at the reversional stage.
21. Let me now consider some of the decisions dealing with the territorial jurisdiction, on the aspect of taking cognizance of complaint preferred under Section 138 of the Negotiable Instruments Act, 1881.
(i) In M/s.Goutham T.V.Centre and another Vs. M/s.Apex Agencies, and another reported in 1993 CRL.L.J 1004, the Andra Pradesh High Court considered a case relating to territorial jurisdiction. Facts in nutshell as extracted in the judgment and the observations, at Paragraphs 3 to 5, 9 and 11, are as follows:-
3. ........During the course of business transactions between the complainant and accused, two cheques were issued by the accused in favour of the complainant for Rs.40,440-00 and Rs.45,000-00, drawn on State Bank of India, Kurnool Branch. When the complainant presented those two cheques in the Indian Overseas Bank, Basheerbagh Branch, Hyderabad for collection, they were bounced as per the intimation of the State Bank of India, Kurnool Branch and the said fact of bouncing of cheques was intimated to the complainant through Indian Overseas Bank, Basheer Bagh Branch, Hyderabad. Therefore, the complainant, after issuing a statutory notice, has filed the complaint in C. C. No. 276 of 1991 under Section 138 of the Negotiable Instruments Act.
4. The main contention advanced on behalf of the petitioners-accused is that since the two cheques were issued by the accused at Kurnool and they were alleged to have been returned as dishonoured by the State Bank of India at Kurnool on which the two cheques were drawn by the accused, the cause of action arose only at Kurnool and so the Court at Hyderabad has no jurisdiction to try the case. In other words, according to the accused, the cheques were issued at Kurnool, they were drawn on State Bank of India at Kurnool and they were alleged to have been dishonoured by the State Bank of India at Kurnool, the Court at Kurnool alone has got jurisdiction.
5.The cheques were presented by the complainant for collection in Indian Overseas Bank, Basheerbagh within the limits of Narayanaguda Police Station which, in turn, is within the jurisdiction of the XVII Metropolitan Magistrate, Hyderbad, where the complaint under Section 138 of the Negotiable Instruments Act has been filed.
9. Cause of action is a bundle of facts. Issuance of cheque, presentation of the cheque, endorsement of dishonour, issuance of a statutory notice and the location of the office of the person in whose favour the cheque was issued are all the factors which are to be taken into account for deciding the cause of action. Cause of action need not confine to a particular transaction where an offence is alleged to have been committed. In cases filed under S. 138 of the Negotiable Instruments Act, series of acts will result at different places. As already discussed (supra). Giving the cheque by the accused to the complainant and presenting the same for collection by the complainant at his place will also be the facts constituting the offence. So the place where the cheque has been issued also has got jurisdiction and the place where the intimation has been received from the collecting Bank also confers jurisdiction.
11. In view of the above discussion, I hold that the complaint can be filed in a Court within the jurisdiction of which the cheque has been drawn or the place where the cheque is presented for collection and received an endorsement about the dishonour of the cheque or the place where the cheque is dishonoured. In this case the cheques drawn on State Bank of India, Kurnool Branch were presented in Indian Overseas Bank, Basheer-bagh Branch of Hyderabad for collection where a part of the cause of action arose. Therefore, the Court at Hyderabad has got jurisdiction to try the case. Under those circumstances, the learned Magistrate is perfectly right in dismissing the petition filed by the accused which does not call for interference.
(ii) In Sanjai Makkar and others Vs. M/s.Saraswati Industrial Syndicate Limited and others, reported in 1999 CRL.L.J 1958, the Allahabad High Court considered a case on jurisdiction.
2. The brief facts, according to complaint, are that M/s. Saraswati Industrial Syndicate is a Company which has its registered office at Yamuna Nagar (Haryana). The Company has a Steel Mill situated at village Nara in district Muzaffar Nagar (U.P.). The accused is also a Private Limited Company known as Essmay Special Steels Private Limited which has its regis-tered office at New Delhi. The accused purchased some steel ingots from the complainant company and a cheque for Rs. 67,872/- bearing No. 732097 dated 11th February, 1994 drawn on Oriental Bank of Commerce, Barola (NOIDA), Ghaziabad was given by the accused to the complainant. The complainant gave this cheque to its Bank (State Bank of Patiala) and the cheque was forwarded by the State Bank of Patiala to Oriental Bank of Commerce, Barola (NOIDA), Ghaziabad but its payment was refused on the ground that there are not sufficient funds in the account of drawer of the cheque. When the cheque was dishonoured the complainant sent a notice by post on 11th July, 1994 and the accused was called upon to make the payment within fifteen days. In spite of receipt of notice the payment was not made by the accused and therefore, a complaint under Section 138 of Negotiable Instruments Act was filed by the complainant at Muzaffar Nagar on 23rd January, 1995.
3. The accused raised an objection that the Court at Muzaffar Nagar lacks the territorial jurisdiction to try the case. This objection was upheld by the learned. Chief Judicial Magistrate, Muzaffar Nagar who came to the conclusion that the cause of action did not arise within the jurisdiction of Court at Muzaffar Nagar. In this view of the matter the Court set aside the summoning order and dropped the proceedings against the accused by its order dated 29-5-1996.
4. Being aggrieved against the order passed by the Chief Judicial Magistrate, the complainant filed a revision before the Court of Sessions and the revision was decided on 23rd July, 1998 by Vllth Addl. Sessions Judge, Muzaffar Nagar, who came to the conclusion that the goods were sold at Muzaffar Nagar, the cheque was issued at Muzaffar Nagar and by the notice issued on behalf of the complainant the payment was demanded at Muzaffar Nagar and therefore, the cause of action arose at Muzaffar Nagar. In this view of the matter the learned Addl. Sessions Judge reversed the order of the C.J.M. and directed the parties to appear before C.J.M., Muzaffar Nagar. Being aggrieved against the order dated 23rd July, 1998 passed by Vllth Addl. Sessions Judge, Muzaffar Nagar the present revisions have been filed by the accused persons.
After considering the decisions in Abhay Lalan Vs. Yogendra Madhavlal, reported in 1981 Crl.L.J 1667 (Kerala), P.K.Muraleedharan Vs. C.K.Pareed, reported in 1993 (1) Crimes 46 = 1992 Crl.L.J 1965, on the basis of Lachhman Dass Vs. Chuhra Mal, reported in AIR 1952 Pepsu 5 and Horsburg Vs. Chandroji, reported in AIR 1957 Madhya Bharat 90, Indmark Finance and Investment Co. Pvt Ltd, Vs. The Learned Metropolitan Magistrate 28th Court, reported in 1992 (1) Crimes 973 (Cal), and Sadanandan Bhadran Vs. Madhavan Sunil Kumar, reported in (1998) 6 JT (SC) = AIR 1998 SC 3043, at paragraph 14, the court held as follows:-
14. Therefore, the complaint may be filed in a Court within the jurisdiction of which the cheque has been drawn or place where the cheque is presented for collection and where an endorsement about dishonour was made or the place where the cheque was dishonoured.
(iii) In Agro Oil Traders and another Vs. South India Viscose Ltd., reported in 1999 Company Cases 798, the facts are as follows:-
South India Viscose Ltd., presently known as SIV Industries Limited (for short "the company") was a public company incorporated under the Companies Act, 1956, having its registered and corporate office at No. 1977-A, Trichy Road, Singanallur, Coimbatore-641 005. Agro Oil Traders (for short "firm"), was a partnership firm, carrying on business at No. 153, Anna Pillai Street, Kothawal Bazaar, Madras, of which one Mohammed Ansari was the managing partner. The company sold and supplied to the firm, Golden Harvest Super Refined Sun Flower Oil on various dates. Towards the supplies so effected, there was an outstanding balance of Rs.9,26,212 payable by the firm. In part payment of the abovesaid outstanding, the firm was stated to have issued certain cheques signed by the managing partner in favour of the company. The company presented cheques for encashment through their bankersANZ Grindlays Bank, Madras, on May 19, 1993, and the said cheques were stated to have been returned dishonoured for the reason "funds insufficient". The company received the dishonour memo dated May 20, 1993, of Canara Bank, A. N. Street, Madras, through their bankers on May 24, 1993. The company, on receipt of the memo of dishonour, issued through their counsel a notice dated June 1, 1993, under section 138(b) of the Negotiable Instruments Act, 1881 (Act No. 26 of 1881-for short "the Act"), calling upon the firm to honour its commitments within fifteen days of the receipt of the notice. Individual notices were sent to the firm, as well as to its managing partner. Notice sent to the firm had been served, while the notice sent to the managing partner of the firm returned unserved. Despite service of notice the firm did not comply with the demand. Consequently, the company launched prosecution against the firm and its managing partner, impleading them as accused Nos. 1 and 2 for an alleged offence under section 138 of the Act, which was taken on file as C. C. No. 291 of 1993 on the file of Judicial Magistrate No. 5, Coimbatore. On receipt of process, accused Nos. 1 and 2 resorted to the present action under section 482 of the Code of Criminal Procedure, 1973 (Act No. II of 1974for short "the Code"), to quash the criminal proceedings so initiated against them. On service of notice, the respondent-complainant entered appearance through a counsel. What was urged by learned counsel for the petitioners, on the question of jurisdiction is that inasmuch as the issue and consequent dishonour of the cheques happened only at Madras, a competent court at Madras alone will have jurisdiction to entertain the complaint and in that view of the matter, the complaint, as entertained by Judicial Magistrate No. 5, Coimbatore, must have to be quashed.
While considering the above, this Court held thus:-
"The argument, as projected, of course, wears a credible look. However, the untenability, taking shelter thereunder would get exposed, if a deeper probe is made, iii the light of the salient provisions adumbrated under Chapter XIII of the Code dealing with jurisdiction of the criminal courts in inquiries and trials. An offence may be committed in its entirety in one local area or several local or other areas. If the offence is committed out and out in one local area, no insurmountable difficulty would arise to the fixation of the place of trial of inquiry. That sort of a situation is taken care of by the statutory provisions adumbrated under section 177 of the Code, which prescribes, "Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed."
In a situation, where the offence is partly committed in one local area and partly in another, one has to recourse to the statutory provisions available in section 178 of the Code, which prescribes, "(a) when it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is a continuing one and continues to be committed in more local areas than one (or)
(d) where it 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."
Section 179 of the Code deals with a situation, where one act is done in one place and the consequence ensuing' in another place. It provides, "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."
In the case on hand, as earlier stated, the act of issuance of cheques and consequent dishonour of those cheques happened in one and the same place, namely, Madras. According to the provisions adumbrated under section 179 of the Code, the case on hand can very well be instituted at Madras. The question is whether the case may be instituted at any place, other than Madras, and if so, the case, as instituted at Coimbatore, is maintainable, as having been instituted in a court having territorial jurisdiction.
In answering a question of such a nature, one has to take into account, the offence part of dishonour of the cheques, as contemplated by section 138 of the Act, which has not become complete by the mere factum of dishonour of the cheque. For such an offence to become complete, so many acts are required to be done and complied with. The various acts are :
(1) Issuance of a cheque by a drawer in discharging, in whole or part, of a debt legally enforceable.
(2) The cheque so issued is dishonoured for reasons specified therein ;
(3) Obligation, on the part of the payee or holder in due course, to issue a notice informing the drawer as to the dishonour within fifteen days of the receipt of the intimation from the banker of such dishonour, as contemplated by clause (b) of the proviso to section 138 of the Act.
(4) A further obligation, on the part of the payee or holder in due course, to issue a statutory notice, as contemplated in clause (c) of the proviso to section 138 of the Act requiring the drawer to comply with the demand within the period of fifteen days stipulated therein.
(5) Only, when the demand is not complied with, within the statutory period of fifteen days, the offence becomes complete and cause of action accrues for the initiation of an action, by way of launching of prosecution, before a criminal court and the cause of action so accrued exists for a period of one month therefrom.
As such, it is crystal clear that various acts are to be committed by different parties, for an offence to become complete, before even a prosecution is launched. Those acts, as contemplated for the completion of an offence take place within various territorial jurisdictions. Therefore, any court having territorial jurisdiction, in which one of several of the acts, as contemplated under section 138 for an offence to become complete, takes place, will be having jurisdiction, for taking cognizance of an offence under section 138 of the Act.
In the case on hand, it cannot be stated that part of an offence had not at all happened at Coimbatore. The registered and corporate office of the complainant-company is located, as seen from the complaint, only at Coimbatore. Admittedly, compliance with the demand so made had not been made. The fact that compliance had not been made, by effecting payment will not by itself be sufficient to oust the jurisdiction of a competent court situate at Coimbatore.
In this view of the matter, it cannot be stated that Judicial Magistrate No. 5, Coimbatore is not having territorial jurisdiction to deal with the complaint on hand. Consequently, the petition deserves to be dismissed and the same is accordingly dismissed.
(iv) In Krishnakumar Menon Vs. Neoteric Informatique (P) Ltd., reported in I (2002) BC 512 (DB), a Division Bench of the Kerala High Court had an occasion to consider a case as to whether the High Court can quash a complaint pending in a Court outside the Kerala State. The petitioner therein was a partner of the firm named "Online Instruments" functioning in Kochi. Various complaints were filed before the Learned Additional Chief Metropolitan Magistrate, Mumbai, under Section 138 read with Sections 141 and 142 of the Negotiable Instruments Act, against the petitioner firm and some of the partners of the firm. The petitioner therein prayed to quash the criminal cases, contending inter alia that the Learned Additional Chief Metropolitan Magistrate at Mumbai, has no jurisdiction to deal with the cases, as no part of the cause of action arose within the jurisdiction of the Mumbai Court. All the accused were living in Kerala. On the merits of the case, it was also contended that even if the allegations made in the complaint were correct, no case was made out. Execution of the cheques were denied. Acknowledgment of notice was denied. A learned Judge referred the matter for consideration, by a Division Bench. The order of reference is as follows:-
"The common question arising for consideration is whether the High Court can quash a complaint pending in a Court outside the Kerala State. As early as 1970 this Court in Sreethara Kamath v. Jawala Prasad Guptha, 1970 KLT50 observed that it is doubtful if the Kerala High Court has power to set aside an order or quash a proceeding of a Court outside its jurisdiction or area of superintendence. Again in Chellappan v. Chandulal (1980 KLT 411) the question came up for consideration before a learned Single Judge of this Court. It has been held in that case that the jurisdiction of this Court is confined to the territory of Kerala and its powers of control, judicial and administrative, are limited to Courts, subordinate to it, in Kerala. In other words, the learned Single Judge in the decision referred to above held that the High Court cannot under Section 482 quash a complaint pending in a Court outside the Kerala State. But a contrary view is taken by a learned Single Judge of this Court in J.C. Augustine v. Ompraksh Nankram, 2001(2) KLT 57, In that case the accused in C.C. No. 1093/97 on the file of the Metropolitan Magistrate's Court No. 16, Ahmedabad filed a petition under Section 482 of the Crl.P.C. for quashing a complaint and further proceedings pursuant thereto. This Court held that since the part of the cause of action arose within the jurisdiction of this Court, this Court has jurisdiction to entertain the petition. The learned Single Judge relied on the decision of the Supreme Court in Navinchandra N. Majithia v. State of Maharashtra, VI (2000) SLT 528= IV (2000) CCR 144=(2000) 7 SCC 640LThat was a case where the Supreme Court had considered whether the Bombay High Court had jurisdiction to quash an FIR registered at Shillong. It has been held by the Supreme Court that from the provision in Clause (2) of Article 226 it is clear that the maintainability or otherwise of the Writ Petition in the High Court depends on. whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court. The Supreme Court's decision relied on by the learned Single Judge was concerned with the power of the High Court under Article 226 of the Constitution. The Supreme Court had no occasion to consider the question whether the High Court in one State can under Section 482 quash the proceedings pending before a Court outside that State. Therefore, in my view, the question whether the High Court can quash the proceedings pending before a Court outside the State requires to be considered by a Division Bench".
After elaborate consideration, as to the exercise of powers of the High Court under Articles 226, 227 and 482 of Criminal Procedure Code, the Division Bench of the Kerala High Court, at paragraph 6, held that after the introduction of Clause 2 to Article 226 of the Constitution of India (15th amendment) Act, 1978, if the whole or part of the cause of action, arose in a State, High Court of that State alone would have jurisdiction. Reference has been made to a decisions of the Supreme Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others, reported in 1994 (4) SCC 711 and other cases. After considering M/s.Pepsi Foods Ltd., Vs Special Judicial Magistrate, reported in AIR 1998 SC 128, at paragraph 7, the Division Bench of the Kerala High Court held as follows:-
"7. .........The Court did not consider the territorial jurisdiction of the High Court under Section 482, Cr.P.C. in the above case. Criminal complaint was filed in Ghazipur, Uttar Pradesh State. For quashing the complaint a Writ Petition under Articles 226 and 227 was filed before the Allahabad High Court which got territorial jurisdiction. An objection was raised that case can be filed only under Section 482, Cr.P.C. There the Supreme Court held that even if case can be filed under Section 482, Cr.P.C jurisdiction of the Court under Article 227 can be exercised as High Court has got power to correct the errors that are committed by the subordinate Courts. However, complaint quashed was pending in the U.P. State itself where the Allahabad High Court can exercise jurisdiction under Section 482. ClP.C as well as Article 227. In this case the Additional Chef Metropolitan Magistrate's Court, Mumbai is not under the jurisdiction of this Court for the purpose of Article 227 or Section 482, Cr.P.C. and in view of the above circumstance, it is not possible to convert the petition filed under Section 482, Cr.P.C. as filed under Article 226 of the Constitution of India. Position may be different if a petition is filed under Section 482 of Cr.P.C. in respect of a matter pending in a Court subordinate to this Court and this Court has territorial jurisdiction. In such cases this Court can grant relief under Article 226 or 227 if it cannot grant relief under Section 482 of the Cr.P.C. if the circumstances of the case warrant in the interest of justice ignoring the nomenclature. Existence of jurisdiction cannot be ignored. Of course under Article 226 of the Constitution High Court will interfere in pending matters in a Court only for compelling reasons in rare occasions.
Therefore, without going into the merits of the matter, we dismiss these petitions as not maintainable without prejudice to the right of the petitioner in approaching the Court under Article 226 of the Constitution of India, if petitioner is advised so.
(v) In Musaraf Hossain Khan Vs. Bhagheeratha Engineering Limited and others, reported in II (2006) BC 515 (SC), the appellant therein filed a complaint before the Learned Chief Judicial Magistrate, Birbhum, Sewree, alleging that several cheques issued by the respondents were dishonoured and thus they have committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The appellant therein, entered into a contract with the company for supply of stone chips. The company used to hand over post dated cheques to the appellant, towards the price of stone chips, as also transport handling, postage and other charges. The company issued six cheques, they were deposited with the branch at Sewree and returned by the bankers, stating that "full cover not received". A demand notice was made for Rs.35,48,640/-. A sum of Rs.5,33,795/- was paid. The complainant claimed that a sum of Rs.30,14,845/- was due. On the aforesaid allegation, a complaint was lodged before the Learned Chief Judicial Magistrate, Birbhum at Sewree, which was also registered as C.C.No.339 of 2004. Summons were issued. Despite receipt of summons, respondents did not appear before the Magistrate Court. Instead, they filed a writ petition in High Court of Kerala at Ernakulam, for the following reliefs:
"(a) declare that the petitioners herein are not liable to be proceeded against on the basis of Ext.P4 complaint.
(b) declare that the petitioners herein are not liable to be proceeded against on the basis of Ext.P4 complaint.
(c) issue an appropriate writ, order or direction quashing Ext.P4 complaint".
Initially, interim stay was granted. The respondents/accused contended that the cheques have not been issued from the registered offices of the respondents company. According to them, a part of cause of action arose within the jurisdiction of Kerala High Court. Reliance was also placed on a decision of the Supreme Court in Navinchandra N.Majithia Vs. State of Maharashtra, reported in AIR 2000 SC 2966 and a decision of the learned single Judge in Augustine Vs. Omprakash Nanakram, reported in 2001 (2) KLT 638. The reasons for invoking the Kerala High Court, as summarised in Musaraf Hossain Khan's case are as follows:-
"It is in these circumstances that the petitioners herein are approaching this Hon'ble Court with a prayer to quash Ext. P4 complaint. It is respectfully that this Hon'ble Court has the necessary jurisdiction to interfere in the matter inasmuch as part of the cause of action arose within the territorial jurisdiction of this Hon'ble court. The registered and Head Office of the 1st petitioner Company is at Vazhakkala, Kakkanad, Ernakulam and the amount due under the cheques that are the subject matter of Ext. P4 complaint was meant to be payable at Ernakulam. In fact out of the 6 dishonoured cheques, payment in respect of one cheque was sent from Ernakulam along with Ext. P2 reply."
Considering the issue relating to territorial jurisdiction, the Apex Court at paragraphs 25 to 28, held as follows:-
25. It is no doubt true that in a criminal matter also the High Court may exercise its extraordinary writ jurisdiction but interference with an order of Magistrate taking cognizance under Section 190 of the Code of Criminal Procedure will stand somewhat on a different footing as an order taking cognizance can be the subject matter of a revisional jurisdiction as well as of an application invoking the inherent jurisdiction of the High Court. A writ of certiorari ordinarily would not be issued by a Writ Court under Article 226 of the Constitution of India against a Judicial Officer [see Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr., AIR 1967 SC 1=(1966) 3 SCR 744]. However, we are not oblivious of a decision of this C6urt in Surya Dev Rai v. Ram ChanderRai & Ors., IV (2003) SLT 810=111 (2003) CLT 133 (SC)=(2003) 6 SCC 675, wherein this Court upon noticing Naresh Shridhar Mirajkar (supra) and also relying on a Constitution Bench of this Court in RupaAshokHurra v. Ashok Hurra, III (2002) SLT 83=(2002) 4 SCC 388, opined that a Judicial Court would also be subject to exercise of writ jurisdiction of the High Court. The said decision has again been followed in Ranjeet Singh v. Ravi Prakash, (2004) SLT 818=(2004) 3 SCC 692. It is, however, not necessary to dilate on the matter any further. The jurisdiction of the High Court under Section 482 of Code of Criminal Procedure was noticed recently by this Court in State of U.P. & Ors. v. Surendra Kumar, I (2005) SLT 161 =(2005) 9 SCC 161, holding that even in terms thereof, the Court cannot pass an order beyond the scope of the application thereof. In Surya Dev Rai (supra), we may, however, notice that this Court categorically stated that the High Court in issuing a writ of certiorari exercises a very limited jurisdiction. It also made a distinction between exercise of jurisdiction by the High Court for issuance of a writ of certiorari under Articles 226 and 227 of the Constitution of India. It categorically laid down that while exercising its jurisdiction under Article 226, the High Court can issue a writ of certiorari only when an error apparent on the face of the record appears as such; the error should be self-evident. Thus, an error according to this Court needs to be established. As regards exercising the jurisdiction under Article 227 of the Constitution of India it was held:
"..... The power may be exercised in cases occasioning grave injustice or failure of justice such as when, (i) the Court or Tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction."
26. In Kusum Ingots & Alloys Ltd. v. Union of India & Anr., Ill (2004) SLT 565=111 (2004) BC 56 (SC)=III (2004) DLT 480 (SC)=(2004) 6 SCC 254, a three-Judge Bench of this Court clearly held that with a view to determine the jurisdiction of one High Court viz-a-viz the other the facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a Court. In that case it was clearly held that only because the High Court within whose jurisdiction a legislation is passed, it would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction. Distinguishing, however, between passing of a legislation by a Legislature of the State and an order passed by the Tribunal or Executive Authority, it was held:
"When an order, however, is passed by a Court or Tribunal or an Executive Authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the Appellate Authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the Appellate Authority constitutes apart of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the Appellate Authority is also required to be set aside and as the order of the original authority merges with that of the Appellate Authority.
Lt. Col. Khajoor Singh y. Union of India whereupon the learned Counsel appearing on behalf of the appellant placed strong reliance was rendered at a point of time when Clause (2) of Article 226 had not been inserted. In that case the Court held that the jurisdiction of the High Court under Article 226 of the Constitution of India, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect. In the latter sense, namely, the office of the authority which is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the Constitution thence stood, stating: (AIR p. 540, para 16) "The concept of cause of action cannot in our opinion be introduced in Article 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to persons residing far away from New Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Article 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Article 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it."
27. In Union of India and Others v. Adani Exports Ltd. & Another (supra), this Court observed:
"17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the Court to decide a dispute which, has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned...."
28. We have referred to the scope of jurisdiction under Articles 226 and 227 of the Constitution only to highlight that the High Courts should not ordinarily interfere with an order taking cognizance passed by a competent Court of Law except in a proper case. Furthermore only such High Court within whose a jurisdiction the order of subordinate Court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution of India unless it is established that the earlier cause of action arose within the jurisdiction thereof.
In Musaraf Hossain Khan's case, according to the complainant therein, the entire cause of action arose within the territorial jurisdiction of the District Court at Birbhum. It was not the contention that the complainant had suppressed the material fact and which if not disclosed would have demonstrated that the offence was committed outside the jurisdiction of the said Court. On the facts of that case, the Supreme Court held that even Section 138 of the Act is attracted, the Court of Chief Judicial Magistrate, Birbhm, will alone have jurisdiction in the matter. At paragraphs 36 and 37, the Supreme Court held as follows:-
36. For the purpose of providing the aforementioned ingredients of the offence under Section 138 of the Act, the complainant appellant was required to prove the facts constituting the cause of action therefor none of which arose within the jurisdiction of the Kerala High Court. It is apt to mention that in Prem Chand Vijay Kumar (supra) this Court held that cause of action within the meaning of Section 142(b) of the Act can arise only once.
37. For the reasons aforementioned, we are of the opinion that the Kerala High/ Court had no jurisdiction to entertain the writ petition as no part of cause of action arose within its jurisdiction.
(vi) In Harman Electronics (P) Ltd and another Vs. National Panasonic India Ltd., reported in I (2009) BC 649 (SC), territorial jurisdiction of the Court to try an offence under Section 138 of the Negotiable Instruments Act, 1881 was in question. Facts leading to filing of the complaint are as follows:-
Appellants and respondent entered into a business transaction. Appellant is a resident of Chandigarh. He carries on business in Chandigarh. The cheque in question admittedly was issued at Chandigarh. Complaint also has a branch office at Chandigarh although his Head Office is said to be at Delhi. It is stated that the cheque was presented at Chandigarh. However, it is in dispute as to whether the said cheque was sent for collection to Delhi. The cheque was dishonoured also at Chandigarh. However, the complainant - respondent issued a notice upon the appellant asking him to pay the amount from New Delhi. Admittedly, the said notice was served upon the respondent at Chandigarh. On failure on the part of the appellant to pay the amount within a period of 15 day s from the date of communication of the said letter, a complaint petition was filed at Delhi, In the complaint petition, it was stated:
"10. That the complainant presented aforesaidcheque for encashment through its banker Citi Bank NA. The Punjab & Sind Bank, the banker of the accused returned the said cheque unpaid with an endorsement 'Payment stopped by drawer' vide their memo dated 30.12.2000. The aforesaid memo dated 30.12.2000 was received by the complainant on 3.1.2001.
11. Upon dishonour of the above mentioned cheque, the complainant sent notice dated 11.1.2001 in terms of Section 138 of Negotiable Instruments Act to the accused persons demanding payment of aforesaid cheque amount at Delhi. The accused persons were served with said notice by registered A/D.
12. By the said notice the accused persons were called upon to pay to the complainant the sum of Rs. 5,00,000/- within 15 days of the receipt of said notice.
13. Despite the service of notice dated 11.1.2001 the accused persons have failed and/or neglected to pay amount of aforesaid cheque within the stipulated period of 15 days after the service of the notice.
14. Accused persons clandestinely/deliberately and with mala fide intention and by failing to make the payment of the said dishonoured cheque within the stipulated period have committed the offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881.
15. The complainant further submits that the complaint is being filed within 1 month from the date of expiring of the 15 days grace time given under the notice for payment of said amount.
16. This Hon'ble Court has jurisdiction to entertain the present complaint as complainant carries on its business at Delhi. The demand notice dated 11.1.2001 was issued from Dclfe and the amount of cheque was payable at Delhi and because accused failed to make the payment of amount of said cheque within statutory period of 15 days from receipt of notice."
The reason for preferring the complaint was that the complainant carried on his business at Delhi. The statutory notice dated 11.01.2001 was issued from Delhi and the amount of cheque was payable at Delhi. Cognizance of the offence was taken by the Learned Magistrate. When issuance of summons was challenged, it was disposed of by the Learned Additional Sessions Judge, New Delhi, in terms of an order dated 03.02.2003 stating:-
"2. The main grievance of the accused is that the accused persons, as well as the complainant are carrying their business at Chandigarh. The cheque in question was given by the accused to the complainant in Chandigarh, and it was presented to their banker at Chandigarh. Only notice was given by the complainant to the accused persons, from Delhi. That the same was served on the accused admittedly at Chandigarh and that both the parties are carrying out their business also at Chandigarh. Therefore, it is contended that it would amount to absurdity if the complaint of the complainant is entertained, in Delhi, in view of the case law reported in AIR 1999 Supreme Court 3782, K. Bhaskaran v. Sankaran Vaidyyan Balan and Another.
6. I have considered the arguments advanced at the Bar, and I am of the considered opinion that this Court has jurisdiction to entertain this complaint, as admittedly the notice was sent by the complainant to the accused persons from Delhi, and the complainant is having its registered office at Delhi, and that they are carrying out the business at Delhi. Admittedly, it is also evident from the record that accused allegedly failed to make the payment at Delhi, as the demand was made from Delhi and the payment was to be made to the complainant at Delhi."
Thereafter, a criminal miscellaneous petition was filed by the complainant and that the same also dismissed. In the above reported case, the parties had been carrying on business at Chandigarh. The Head office of the complainant was at Delhi. The branch office was at Chandigarh. There was no dispute that the transactions were carried on only from Chandigarh. There was also no dispute that the cheque was issued at Chandigarh. But the complaint petition did not make any specific averments that the cheque was presented at Chandigarh or Delhi. It was absolutely silent in that regard. In that context, the Supreme Court by observing that when the facility for collection of the cheque admittedly was available at Chandigarh and when the same had also been availed of, mere issuance of notice from Delhi alone does not give rise to a cause of action to prefer a complaint before the Learned Additional Sessions Judge, New Delhi. Even in the abovesaid judgment, the Supreme Court has made it clear that the place where offence had been committed, plays an important role. The Supreme Court, taking into consideration the right of an accused vis-a-vis the procedure of the Code of Criminal Procedure and the likelihood of harassment to the accused, that if complaints were to be instituted in different places, on the basis of mere issuance of notice from a particular place, at paragraph 25, held as follows:-
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 vis-a-vis the provisions of the Code of Criminal Procedure.
(vii) In Murali Dhar Vs. Ishwar Dayal Girdhani, reported in 2010 (3) Crimes 791 (M.P), the Madhya Pradesh High Court was called upon to adjudicate the correctness of an order, dismissing a petition filed by the accused taking cognizance on the ground of territorial jurisdiction. The cheque was drawn at Rajasthan (Kota). The payee presented the cheque at Datia, where he was having account. The cheque stood dishonoured at Datia. Notice under Section 138 of the Negotiable Instruments Act, 1881, was issued from Datia. After considering Harnam Electronics Pvt Ltd., and another Vs. National Panasonic India Pvt Ltd., reported in 2009 (1) SCC 720, K.Bhaskaran Vs. Sankaran Vaidhyan Balan and another, reported in 2000 (1) MPLJ 1, Smt.Shamshad Begum Vs. B.Mohammed, reported in 2008 (13) SCC 77, the Madya Pradesh High Court held as follows:-
"In case of K. Bhaskaran (supra) concerning territorial of the Court, Apex Court has held that in case of dishonour of cheque, complaint can be filed at any of the places where any of the following acts took place (1) drawing of the cheque; (2) presentation of the cheque to the Bank; (3) returning the unpaid cheque 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. 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 five different localities. A concatenation of all the above five is a sine quo non for the completion of the offence under Section 138. 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 view of Section 178(d) of the Code of Criminal Procedure. 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. Considering the overall facts and circumstances of the case it is apparent that cheque is dishonoured from Bank at Datia and notice was sent to petitioner/accused from Datia, therefore, cause of action arises at Datia. Thus, learned courts below have rightly dismissed the application of the petitioner. There is no perversity in the orders of both the courts below. (emphasis supplied)
(viii) In Mr.Preetha S.Babu Vs. Voltas Ltd., Cochin and another, reported in 2010 CRL.L.J 2709, the Bombay High Court at paragraphs 31 and 32, held as follows:-
The cheque can be presented at the collecting bank of the payee. The collecting bank has to then send it to the drawee bank. That must be done within six months. If the 2 cheque is dishonoured and money is not paid within 15 days of the notice, complaint can be filed at the place where the collecting bak is situated. The idea is that the cheque should reach the drawee bank within six months. It can be directly presented to it or it can be presented through the collecting bank. When in judgment reported in AIR 1999 SC 3762, the Supreme Court says that "presentation of the cheque to the back" is a component of the offence under Section 138 of the NI Act, it is possible to hold that it conveys presentation of the cheque at the drawee bank or the collecting bank of the payee. It is pertinent to note that in Item (2) of paragraph 14, the Supreme Court has used the words "the bank" and in item (3) thereof the Supreme Court has used the words "the bank". Nothing prevented the Supreme Court from using the words "drawee bank" in item (2) instead of the words "the bank". It is possible to hold that the fact that it has not done so indicates that in the opinion of the Supreme Court, presentation of the cheque can be done either at the drawee bank or the collecting bank of the payee. The corollary may perhaps be that if the cheque is presented at the collecting bank of the payee and the collecting bank presents it to the drawee bank within the period of six months and if it is returned to the collecting bank unpaid and the cheque is dishonoured and the money is not paid within 15 days of the notice, Court at the place where the collecting bank is situated will have jurisdiction to try the complaint under Section 138 of the NI Act. Such interpretation may be in consonance with law laid down in K. Bhaskaran reported in AIR 1999 SC 3762.
(ix) In Religare Finvest Ltd., Vs. State and another, reported in 2011 (2) Crimes 265 (Del.), the Delhi High Court considered a similar plea. The complaint was returned on the ground of lack of territorial jurisdiction of court. Upon considering the cause of action, the court held that the offence under Section 138 can be completed only with concatenation of a number of acts, acts being, drawing of cheque, presentation of cheque with bank, returning of cheque unpaid by drawee bank, giving notice in writing to drawer of cheque demanding payment of cheque amount, and failure of drawer to make payment within 15 days of receipt of notice. The Court further held that it is not essential that all the acts should be committed at the same place. It is quite possible that all the five acts are perpetrated in five different localities. In such a situation, anyone of the Courts exercising jurisdiction in one of five localities can become place of trial. The Madhya Pradesh High Court set aside the order returning the complaint and remanded the matter back to the trial Court, with directions to proceed further.
(x) In Patiala Castint P.Ltd. and others Vs. Bhushan Steel Ltd., reported in 2011 CRL.L.J 757, at paragraphs 2, 5 and 6, the Delhi High Court held as follows:-
2. The complainant (respondent herein) was given the cheque in question payable at Bank of Baroda, SSI Mandi, Gobindgarh, Punjab. The complainant deposited this cheque with their banker Punjab National Bank, Partap Ganj Branch, Delhi, since the complainant was having its head office and registered office at Delhi. The cheque got dishonoured and was returned back unpaid by the banker of the petitioners on account of "exceeds arrangements". A demand notice demanding the cheque amount was sent by respondent (complainant) from his head office at Delhi and despite notice the cheque amount was not paid. On this basis, a complaint was filed in Delhi. The petitioners allege that the complaint was not maintainable in Delhi as no part of cause of action had arisen in Delhi and the complaint was an abuse of process of the Court. It is submitted by the petitioners that the term 'bank' as referred in Section 138 proviso (a) of the Negotiable Instruments Act would mean drawers bank and not the collector bank. The issue of notice from Delhi should also not give jurisdiction to Delhi courts since the respondent was served with the notice in Punjab. It is submitted the transaction between petitioners and respondent took place in Mandi, Gobindgarh, Punjab. The cheque was issued at Gobindgarh Bank, Pubjab and it was dishonoured at Gobindgarh. The notice was received at Gobindgarh and thus the jurisdiction was only of Gobindgarh Court. Reliance was placed by the petitioners on Ishar Alloys Steel Ltd. v. Jaiswal Neco Ltd. (2001) 3 SCC 609 : (AIR 2001 SC 1161 : 2001 Cri LJ 1250) and Harman Electronics P. Ltd. v. National Panasonic India P. Ltd. (2009) 1 SCC 720 : (AIR 2009 SC 1168 : 2009 Cri U 1109) and other similar cases.
5. In the case in hand, the situation is different. The respondent (complainant) had presented the cheque at Delhi bank and notice was also sent from Delhi. I consider that the position is squarely covered by Sharad Jhunjhunwala (supra) wherein the High Court Bombay made following observations:
8............. Since the cheque was deposited by the respondent No. 1 in its bank in Mumbai and notice was issued in Mumbai, in view of the ratio of the judgment in K. Bhaskaran case (1999) 7 SCC 510 : (AIR 1999 SC3762) the Court in Mumbai had the jurisdiction to try and decide the said complaint. The Division Bench of this Court in the case of M/s Preethe S. Babu : (2010(3) AIR BomR 63) (supra) has held that in such circumstances, the Mumbai Court would have the jurisdiction to entertain the complaint. The Division Bench of this Court has taken into consideration the judgment in the case of M/s Harman Electronics (P.) Ltd : (AIR 2009 SCI 168) (supra) and also the case of Ahuja Nandkishore Dongre v. State of Maharashtra and another reported in 2007 Cri.L.J. 115 : (2006(6) AIR Bom R 201) and Deepti Kumar Mohanty : (2009 Cri LJ 3220: 2009(4) AIR Bom R 310) (supra) and after having taken into consideration the said judgments, the Division Bench came to the conclusion that in cases where the registered office is situated in Mumbai and statutory notice was issued from Mumbai and the cheque was deposited in Mumbai and it was dishonoured in Mumbai, the cause of action had arisen in Mumbai and therefore the Magistrate before whom the complaint is filed has jurisdiction to try and decide the case. The Division Bench also took into consideration the judgment of the Apex Court in the case of K. Bhaskaran (supra) and another judgment of the Supreme Court in the case of Shamshad Begum (Smt.) v. B. Mohammed (2008) 13 SCC 77): (AIR 2009 SC1355 : 2009 Cri LJ 304) and Mosaraf Hossain Khan v. Bhaheeratha Engg. Ltd. (2006 3 SCC 658): (AIR 2006 SC 1288 : 2006 Cri LJ 1683).
6. I consider that where the registered/ head office of complainant is at Delhi, cheque for encashment is deposited by complainant at Delhi, notice of demand is served from Delhi and amount of cheque is not paid despite notice, the court of MM at Delhi would have jurisdiction to entertain complaint under Section 138 of Negotiable Instruments Act. The learned MM rightly entertained the complaint of respondent under Section 138 of the NI Act and rightly summoned the accused persons/petitioners. I find no force in this petition. The petition is hereby dismissed with no orders to costs.
22. In the case on hand, the cheque has been presented at Mumbai, where the payment was intended, and dishonoured. Merely because, the agreement, or the condition in the invoice provided a clause, conferring jurisdiction to Courts at Chennai, the right of the complainant to prefer a complaint within the jurisdiction of the court where the offence is committed, cannot be taken away. The judgment in Harman Electronics (P) Ltd's case, with due respect, cannot be made applicable to the facts of this case, as it was held in favour of the accused, on the basis of place of issuance of notice, i.e., Delhi, though the cheque was presented and dishonoured at Chandigarh.
23. In Navinchandra N.Majithia Vs State of Maharashtra, reported in AIR 2000 SC 2966, the question posed before the Supreme Court was whether the High Court of one state can quash FIR filed in another state under Article 226 of the Constitution of India. The issue raised before the Supreme Court was, "Whether the High Court of Bombay has jurisdiction to issue a writ under Article 226 of the Constitution in respect of any steps taken or to be taken pursuant to an FIR registered by the Shillong Police in the State of Meghalaya." The Division Bench of the Bombay High Court dismissed the writ petition filed by the appellants on the ground of territorial jurisdiction. The Supreme Court, after taking note of the 15th amendment to the Constitution of India, at paragraph 7, has explained the object of the amendment. As regards the expression "cause of action", the Supreme Court at paragraphs 8 and 9 held as follows:-
8. "Cause of action" is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words "cause of action wholly or in part arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the Courts. As per that section the suit could be instituted in a Court within the legal limits of whose jurisdiction the "cause of action wholly or in part arises". Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean "the bundle of facts which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court."
9. In Read v. Brown (1888) 22 QBD 128 Lord Esher, M.R., adopted the definition for the phrase "cause of action" that it meant every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."
24. In the above reported case, a large number of events took place at Mumbai, in respect of the allegations contained in FIR registered at Shillong. Hon'ble Justice K.T.Thomas while agreeing with the judgment prepared by Hon'be Justice D.P.Mohapatra, that on the aspect of exercise of power under Article 226 of the Constitution of India, to quash the FIR filed in another state, in his separate judgment, held that rejection of the writ petition for want of territorial jurisdiction on sole consideration that FIR was registered in another state is not proper. The said judgment also not applicable to the facts of the case, for the reason that the Supreme Court while considering the entire cause of action, where large number of events of the case had taken place at Mumbai, observed that a direction could be issued to the State of Maharashtra, to transfer the investigation to another state. Such a direction can be issued to an authority depending upon the facts and circumstances of the case. But as declared by the Supreme Court, a High Court has no territorial jurisdiction to question the correctness of any proceedings initiated by a subordinate court, under Article 227 of the Constitution of India, when such court falls outside the territorial jurisdiction. The limitations on the jurisdiction of the High Court under Article 226 of the Constitution of India are, (1) the power can be exercised throughout the territories in relation to which the High Court can exercise its powers, (2) the person or the authority, to whom the writs are issued, must be within the territories subject to the jurisdiction of the High Court. Power under Article 226 of the Constitution of India can be exercised only if the subordinate court which exercises the jurisdiction or takes cognizance of a case falls within the jurisdiction of that High Court. Writ jurisdiction of this Court cannot be exercised to issue any writs or orders which would have the effect of interfering with the jurisdiction of any subordinate court, outside the territorial jurisdiction. If the court of the Learned 62nd Metropolitan Magistrate, Dadar, Mumbai, has taken cognizance of the criminal complaint without any jurisdiction, it is only for the Bombay High Court to interfere. But the Bombay High Court vide order dated 08.02.2010 in Crl.W.P.No.409 of 2010 has directed the petitioner to raise the plea of jurisdiction, which has also been rejected by the by the Learned Sessions Judge, Sewree, in Criminal Revision Application No.56 of 2010 dated 15.04.2010.
25. In Oil and Naural Gas Commission Vs Utpal Kumar Basu and others, reported in 1994 (4) SCC 711, the question of jurisdiction in instituting a writ petition was the issue. The said judgment is not applicable to the facts of this case.
26. In Mohd.Imran Vs. State of Bihar and another, reported in II (2010) BC 243, the facts of the case are as follows:-
2. The facts are that the complainant-M/s. Amricon 'Agrovet (P) Ltd. is a registered company under the Companies Act and has its office at Fraser Road, Patna. The company promotes the business of production and selling of poultry feeds. The petitioner No. 1 is the company and the petitioner No. 2 is the proprietor of the company which used to purchase poultry feed" from the complainant company. It is said during the course of business, a huge credit became due from the petitioners. Then the credit balance reached to a sum of Rs.7,98,000/-, the complainant asked the petitioner to clear off all the dues. In view the aforesaid request, the petitioner issued 9 post-dated cheques of State Bank of India, Kanpur branch (which are the subject matter of Complaint Case No. 563-C of 2007) and 4 post-dated cheques of State Bank of India, Kanpur branch which are the subject matter of complaint case No. 2364-C of 2007). The details of the cheques are given in the complaint petition. The complainant deposited the aforesaid cheques in the Punjab National Bank, Birhana Road branch, Kanpur which were dishonoured on 18.5.2007 and 24.5.2007 respectively. The complainant thereafter served legal notice on 21.6.2007. It is alleged that after receiving the legal notice, no steps were taken by the petitioner to make payment of the said credit amount, and as such the two complaints cases have been instituted.
27. The question raised before the Patna High Court was whether the Learned Judicial Magistrate, Patna had jurisdiction to take cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act. In the reported case, all the five acts namely, drawing of the cheque, presentation of the cheque to the bank, returning the cheque unpaid by the drawee bank, failure of the drawee to make payment within 15 days on receipt of the notice, took place within the local area of Kanpur, Uttarpradesh and that notice alone was issued from Patna which was served on the petitioner in Kanpur. Paragraph 18 of the judgment is as follows:-
18. In the present case, the facts are similar to the case of M/s. Harman Electronics Ltd. However, this Court cannot transfer the case to the Court at Kanpur as the High Court does not have the power to transfer the case from one State to another. On the other hand, this Court cannot hold that the order of cognizance is bad on the ground that it suffers from the jurisdictional error. At the most this Court can observe that the case ought to be tried at Kanpur (UP) and the question of jurisdiction can be raised by the petitioner in the Court below or before the appropriate Court. The complainant would, however, also have the remedy of taking steps and getting the case registered at Kanpur (UP).
The above reported case pertains to issuance of notice and therefore, it is apposite to the facts of this case.
28. In NEPC Micon Ltd., v. Magma Leasing Ltd., reported in 1999 (4) Crimes 119 = 2000 (1) MWN (Cri) DCC 56 (Cal.), a revision petition was filed under section 402 of the Code of Criminal Procedure against an order dated 10.12.1997 passed by the learned Metropolitan Magistrate, 9th Court, Calcutta, in a complaint case No.C-494 of 1997 under section 138 read with section 141 of the Negotiable instruments Act, 1881, whereby, the prayer of the petitioners-accused persons was to discharge them, under section 258 of the Code of Criminal Procedure and it was rejected on contest. The complainant-O.P. being a limited company under the Companies Act, 1956 had its registered office at 24, Part Street, Calcutta-700 016 (i.e. within the jurisdiction of Calcutta, West Bengal) and had also a Branch Office at Haddous Road, Nungambakkam. Chennai-600034. The complainant-O.P. was a financial institution, inter alia, providing fund for Hire purchase of machineries and other assets for business concerns. The complaint in the case was filed by the Assistant Manager (Legal and Administration) as an authorised representative of the O.P. Company. It was alleged in the complaint that the petitioner-accused Nos. 2 to 8 were incharge of management of the day-to-day affairs of the NEPC Micon Limited and controlling the affairs of the said company. it was alleged that in discharge of its existing liability, the O.P.-company tendered as many as five cheques dated 1.1.97 for various amount, the total being Rs.58,25,980/- to the petitioner-company (accused No. 1) drawn on Canara Bank, Broadway Branch, Madras-600108 in favour of the O.P.-company (the complainant). Those cheques were duly tendered by the O.P.-company to their banker, Punjab National Bank, Park Street Branch. Calcutta for encashment but those cheques were returned by the banker of the accused persons i.e. Canara Bank, Broadway Branch, Madras, with the remark as "account closed". The O.P.-company, thereafter. issued notices upon the accused persons on 14.1.97 through their advocate demanding payment of the total sum of the dishonoured cheques within 15 days from the receipt of the notice. The accused-company as well as their Directors (i.e. the petitioners therein) received the notice on 17.1.97, but, on expiry of the statutory period of 15 days, they neglected and failed to pay the amount of the dishonoured cheques. Hence the necessity to prosecute the petitioners-accused persons for the offence punishable under section 138 of the Negotiable instrument Act, 1881. The petitioners-accused persons after having entered into appearance in the proceeding before the Court below filed a petition for discharge under section 258 of the Code of Criminal Procedure. Upon hearing both the parties, the learned Metropolitan Magistrate passed an order by rejecting the prayer and hence the petitioners therein filed a revision petition. The first and foremost point of challenge on behalf of the petitioners, was want of jurisdiction to entertain the proceeding-in-question by the Learned Metropolitan Magistrate, Calcutta and, in this context, it was contended that the underlying agreements of hire purchase between the parties with regard to which the relevant cheques had been drawn and handed over to the O.P.-Company, had been made at Chennal (Madras) and not in Calcutta (West Bengal). It was further pointed out that the relevant cheques were drawn on Canara Bank, Broadway Branch. Madras and, it was thus contended that the alleged dishonour (bouncing), if at all any such was there, was at Chennai (Madras) and not in Calcutta (West Bengal). Yet another point, highlighted was that with respect to some other such cheques having been dishonoured, the O.P.-Company had instituted criminal cases being C.C. No. 6339 of 1996 of and C.C. No. 6341 of 1996 in the Court of Metropolitan Magistrate, Saldapet, Chennal, and that being as such, the O.P./Complainant should have chosen the forum at Chennal and not in Calcutta. Having regard to the above submission, the Calcutta High Court held as follows:
"With reference to the above plea, it would be apt Just to refer to the hard fact that the O.P. Company had its registered office at 24, Park Street, Calcutta-700016 and the correspondence including the notice between the parties had been made with the address of the O.P. Company at the Head Office i.e. at Calcutta, as referred to above. Thus even on own admission of the petitioners-accused, he (accused) addressed the office of the O.P. company at Calcutta with reference to alleged dishonour of cheques. it would not be out of place to mention here that ft is not only the place of the drawee bank (on which the cheques were drawn), which matters in a proceeding under section 138 of the Negotiable instrument Act, rather the underlying concept to constitute the said offence does incorporate yet another aspect subsequent to dishonour of the cheque and this was that the drawer of the cheque is served with a statutory notice to make payment within 15 days of the service of the notice after once the cheque Js dishonoured. The drawer of the cheque is, thereupon, expected to respond to the notice and to make payment of the relevant cheque to the person in whose favour the cheque had been issued. This aspect of the matter is relevant to constitute an offence under section 138 of the Negotiable instrument Act because it casts a statutory liability on the drawer of the cheque to approach the creditor after receiving the notice and to settle the claim. Here arises an inbuilt liability of the drawer as per the well-known established principle that a debtor should follow the creditor, and not the reverse, after the cheque is bounced and a notice of demand had been served. To put in other words, if one part of the occurrence i.e. dishonour of cheque on the drawee bank was at Chennal (Madras), the other part of the occurrence being the liability of the debtor to follow the creditor and to make payment was at the place from were the notice was issued or the place where the Head office of the creditor situated, which was admittedly in Calcutta. Banking upon this sort of established principle, it has got to be determined that a part of the occurrence as alleged did take place within the territorial Jurisdiction of Metropolitan Magistrate Calcutta. A similar view was taken by this court on an earlier occasion in the case of Robin Jhunjhunwala v. L.C. Mohta & Ore., reported in 1997(1) CRN 390 and the same does apply in the instant case also. it is Ihus a question of choice for the complainant to launch the prosecution at any place where a part of the occurrence had taken place, Simply because the O.P.-company had launched the prosecution at Chennal with regard to some other cheques, it would not be debarred to choose the forum at Calcutta in the instant case. The contention with regard to point of Jurisdiction 'raised on behalf of the petitioners accused, therefore must fail."
29. In Ruchi Soya Industries Ltd., Mumbai v. State of Maharastra reported in 2010 (2) Bankmann 228 (Bom.) = 2010 (2) Bom.CR (Cri) 782, the writ petitioner therein was the complainant. The respondents Nos.2 to 4 were accused Nos.1, 2 and 3. Accused No.1 was a company situated at Alwar in Rajasthan. Accused Nos.2 and 3 were the directors of accused No.1 and both of them were residing at Delhi. The complainant used to purchase mustard oil and packing material and to hand over the same to the accused at Alwar for the purpose of packing the same. The accused company used to charge packing charges from the complainant and hand over packed material to the complainant. However, some oil was not packed and the oil and packing material were not returned to the complainant. Therefore, the accused were liable to pay the price of the remaining oil and packing material. To discharge that liability, the accused persons issued a cheque No.712059, dated 27.1.2004, for Rs.15,63,381/- drawn on State Bank of Bikaner & Jaipur, Lawrence Road, Delhi Branch in favour of the complainant company. The cheque was signed by accused No.2. The complainant deposited the said cheque with its Bank at Mumbai for presentation to State Bank of Bikaner & Jaipur, Delhi Branch, for encashment. However, the drawee Bank returned the cheque on 11.5.2004 with the endorsement "funds insufficient". After getting an intimation of the same, on 27.5.2007, the complainant issued a notice to the accused and asked to make payment of the amount of the cheque. However, they failed to make payment. Therefore, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act against all the three accused in the Court of Metropolitan Magistrate, Mumbai. It was registered as a Criminal Case No.2575/SS/2005. Process was issued. Plea was recorded and the matter proceeded for trial. After the prosecution evidence was over and even the defence evidence was led by the accused persons, on the date when the case was fixed for arguments, the accused persons filed an application, Exhibit 57 before the trial Court contending that the Metropolitan Magistrate in Mumbai had no jurisdiction to take cognizance of the complaint because no part of transaction had taken place in Mumbai and merely because the notice was issued from Mumbai and that cheque was deposited with the complainant's banker at Mumbai is not sufficient to give jurisdiction to the Metropolitan Magistrate at Mumbai. That application was opposed. After hearing the parties, the learned Special Metropolitan Magistrate, Mumbai, by impugned order dated 8.2.2008 allowed that application holding that the Metropolitan Magistrate, Mumbai had no jurisdiction. He directed the complaint to be returned to the complainant for presentation to the proper Court. That order was challenged in the Writ Petition. The Bombay High Court, held as follows:
"5. In the present case, admittedly, the cheque was drawn on State Bank of Bikaner & Jaipur, Delhi Branch and it was admitted during the evidence that the cheque was handed over by the accused No.2 to the complainant at Delhi. The payment was to be made in respect of the transaction which had taken place at Jaipur. The cheque was to be presented to the drawee Bank at Delhi and the cheque was dishonoured by the drawee Bank at Delhi and it was returned to the complainant. However, the cheque was deposited by the complainant with its banker at Mumbai for presentation to the drawee Bank at Delhi for encashment. Admittedly, after the cheque was dishnoured, the complainant gave a notice from its registered office at Mumbai demanding the payment of the cheque amount.
6. In Ahuja Nandkishore Dongre v. State of Maharashtra & anr. 2007(1) Bom. C.R. (Cri.) 1031, the complainant was a resident of village Soyjana, taluka Manora, Dist. Wasim. He was working at Bhandara. The accused was also resident of Bhandara and the complainant had given a hand loan to the accused at Bhandara. The accused had issued a cheque drawn on Bank of India, Bhandara Branch, which was dishonoured. The complainant presented the cheque at Digras Branch of Yavatmal Urban Co-operative Bank and the cheque was returned as dishnoured a account was closed with the drawee Bank. After that, Advocate of the complainant issued a notice to the accused from Digras and the complaint was filed at Digras. In such circumstances, it was held that merely issuance of notice by the lawyer from Digras would not give jurisdiction to the Court at Digras. The learned Judge held that mere presentation of cheque at some other place where the complainant does not reside and issuance of notice from the said place would not give jurisdiction. The learned Judge observed that the payment is expected to be made at the place where the complainant ordinarily resides or if the complainant is a company or a firm where its registered office is situated. In Jinraj Paper Udyog v. Dinesh Associates & Anr. 2009 (2) Bom.C.R.81, the learned Judge of this Court observed as follows in para 6:
"6. Since "the payee" is required to issue a notice demanding payment, such place of giving notice would be where, if payee is a company (or other registered establishment) it has a registered office, and in other cases, normally, where the payee ordinarily resides or work for gain, and not any place from where the payee may choose to despatch a notice."
The same view was taken in number of cases,including a recent Judgment in Criminal Application No. 2674 of 2008 (Hemlata Raghunath Pendharkar vs. Jaswantsingh Rajaram Sonawane & Anr.)
7. In Mrs.Preetha S.Babu vs. Voltas Ltd. & Anr. 2010 AlL MR (Cri) 1025, a contract for supply of air-conditioners had taken place between the accused company situated at Ernakulam in Kerala. Towards payment and discharge of their liability, the accused had issued a cheque on Syndicate Bank, Angamaly Branch, Ernakulam, Kerala. The head office of the complainant was siuated in Mumbai. The cheque was deposited with Citibank, Fort Branch, Mumbai, which was duly presented to the drawee Bank and was dishonoured. The complainant issued a notice to the accused from Mumbai demanding payment. Inspite of notice, payment was not made and the complaint was filed in the Court of Metropolitan magistrate at Mumbai. After referring to several authorities, the Division Bench of this Court dismissed the writ petition filed by the accused challenging the jurisdiction of the Metropolitan Magistrate. Holding that admittedly the complainant's registered office is situated at Mumbaiand the notice was issued from Mumbai and accused was called upon to make payment in Mumbai and therefore Metropolitan Magistrate Mumbai has jurisdiction. In the present case, the registered office of the complainant is at Mumbai and after the cheque was dishonoured, the notice was issued from Mumbai for making payment. Naturally, the payment was expected to be made to the complaiant at Mumbai. In view of these two facts which took place at Mumbai, the Metropolitan Magistrate, Mumbai would get jurisdiction to entertain the complaint in view of the law settled in above referred authorities which are based on K.Bhaskaran.
8. In M/s.Harman Electronics (P) Ltd. v. National panasonic India Ltd. 2009 (1) ALL MR (Cri) 280 (S.C.), the cheque was issued at Chandigarh. The complainant also had a branch office at Chandigarh, though its head office was at Delhi. The cheque was presented at Chandigarh and was also dishonoured at Chandigarh. However, the complainant issued a notice upon the accused asking to make payment from New Delhi. The notice was served upon the accused at Chandigarh. Thereafter, the complaint was filed at Delhi. The trial Court held that it had jurisdiction since the payment was to be made to the complainant at Delhi and the accused had failed to make payment. The Supreme Court held that mere issuance of notice from Delhi would not by itself give rise to the cause of action but communication of the notice would. The Supreme Court observed in para 25 thus :-
"25. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower can not 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 vis-a-vis the provisions of the Code of Criminal Procedure."
In fact, it would appear that in Harman Electronics, whole of the transaction had taken place at Chandigarh and the complainant had also its branch office at Chandigarh but only to cause harassment to the accused, the notice was issued from Delhi and complaint was filed in Delhi. In these circumstances, the Supreme Court held that merely issuance of notice from Delhi would not give jurisdiction to the Delhi Court. Therefore, on facts, the authority in Harman Electronics would not be applicable to the facts of the present case.
9. In view of the above facts and the legal position, I find that the Metropolitan Magistrate at Mumbai has jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act. Therefore, the impugned order passed by the trial Court at the stage of final arguments of the case to return the complaint to the complainant was not correct and needs to be set aside.
30. In Mohammed Haneef v. Sankarraj reported in 2011 (2) Bankmann 243 = 2011 (3) MWN (Cri.) DCC 39 = 2012 Crl.L.J 99, respondent therein initiated proceedings under Sec.138 and 142 of Negotiable Instruments before the learned Judicial Magistrate Court, Ambattur against the petitioner therein. In the complaint, it was alleged that the petitioner therein has taken a sum of Rs.35,00,000/- assuring an admission for a post graduate course in M.S.Ortho for the respondent's son Dr.S.Manivannan. The petitioner therein executed promissory note, dated 8.3.2009 and also issued four cheques, dated 26.3.2009, each for Rs.7,50,000/-. He also assured the complainant that he would repay the amount within sixty days. Since the amount was not paid, the cheques were presented by the complainant in his bank on 5.9.2009 and the cheques were dishonoured by the petitioner's banker on 7.9.2009. The complainant issued a statutory notice on 23.9.2009 demanding repayment within fifteen days, which was received by the petitioner, who also sent a reply on 30.9.2009. Since the demand made in the notice was not complied with, the respondent initiated the abovesaid proceedings. The learned Magistrate took cognizance of the offence. Challenging taking cognizance of the offence by the learned Judicial Magistrate, Ambattur, the petitioner has filed a petition, on the sole ground that the learned Judicial Magistrate has no jurisdiction to take cognizance. It was the submission of the learned counsel for the petitioner therein that the entire transaction took place only at Bangalore and the cheque was drawn on Central Bank of India, Indira Nagar Branch, Bangalore and that the same has been returned dishonoured only by the drawee bank, the notice has been received by the petitioner therein only at Bangalore and therefore, the learned Judicial Magistrate, Ambattur had no jurisdiction. On the above facts, this Court has considered the issue relating to territorial jurisdiction at length. The submissions, discussion and the decision are reproduced hereunder:-
"15. The question of jurisdiction in compliance under Sec.138 of NI Act came up for consideration before the Apex Court in Bhaskaran's case. The Apex Court referred five components which constitute an offence under Sec.138 of NI Act. The Apex Court further held that if these five different acts were done in five different localities, any of the courts exercising jurisdiction in one of the five local areas can become the place for trial for offence under Sec.138 of NI Act and the complainant can choose any one of those Courts having jurisdiction over any one of those local areas where any of these five acts were done.
"(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."
16. However, in the case of Shri Ishar Alloy Steels Ltd., v. Jayaswals Neco Ltd., reported in (2001) 3 SCC 609, the following questions were raised.
"2.(a) what is meant by "the bank" as mentioned in clause(a) of the proviso to Section 138 of the Negotiable Instruments Act, 1881?
(b) Does such bank mean the bank of the drawer of the cheque or covers within its ambit any bank including the collecting bank of the payee of the cheque?
(c) To which bank the cheque is to be presented for the purposes of attracting the penal provisions of Section 138 of the Act?
17. The three Judges Bench of the Hon'ble Supreme Court held that the Bank referred to in proviso (a) to Sec.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.
18. By this judgment the five different acts were reduced to four local areas which can become the place for trial. The place where the bank of the payee is situated is excluded from having jurisdiction.
19. Further, in the case of Harman's Electronics, the Apex Court categorically held that issuance of notice would not by itself give rise to cause of action but communication of notice would. Therefore, five different acts referred by the Apex court in Bhaskaran's case have been reduced into three different acts viz., a) where the cheque has been issued b) where the cheque has been returned by the drawee bank and (c ) where the notice has been served or communicated to the accused. The place of presentation of cheque of the holders bank and the place of issuance of notice by the complainant would no more have jurisdiction.
20. In similar circumstances, referring to all the above case laws, this court in Crl.O.P.(MD)No.14835 of 2010 has held that the courts which has jurisdiction to the offence under Sec.138 of the Act shall be, "1) the place where the cheque has been drawn;
2) the place where the cheque returned unpaid by the drawee bank;
3) the place where the statutory notice demanding payment of the cheque was served on the drawer.
..........
23. On the contrary, Mr.A.Laxmi Raj Rathnam, learned counsel for the respondent relied on an unreported judgment of Bombay High Court in Criminal Writ Petition No.615 of 2008 , wherein, it has been observed as follows:
"In fact, it would appear that in Harman Electronics, whole of the transaction had taken place at Chandigarh and the complainant had also its branch office at Chandigarh but only to cause harassment to the accused, the notice was issued from Delhi and complaint was filed in Delhi. In these circumstances, the Supreme Court held that merely issuance of notice from Delhi would not give jurisdiction to the Delhi Court. Therefore, on facts, the authority in Harman Electronics would not be applicable to the facts of the present case."
26. The learned counsel also relied on an unreported judgment of Bombay High Court in Crl.Appln.No.2674 of 2008 wherein it is held as follows:
"20. It thus appears to be a consistent view that in order to avoid unnecessary harassment to an accused, if the complaint is filed at a place where the complainant does not ordinarily reside or carries on his business and the cheque is presented at some other place and a notice is given to such place only in order to file a complaint at such place, the complaint would not be tenable in the Court of such a place. However, if the cheque is presented at a place where the complainant ordinarily resides or carries on business or if it is a company where its registered office is situated and if a notice demanding payment is issued from such a place, then the Court at such a place will have jurisdiction to entertain the complaint".
27. As stated earlier, in Bhaskaran's case, the Apex Court has referred five local areas which can become the place for trial for an offence under Sec.138 of NI Act. However, the three judges Bench of the Apex Court in Shir Ishar Alloy Steels Ltd., v. Jayaswals Neco Ltd., reported in (2001) 3 SCC 609 has clarified the bank referred to in proviso a to Sec.138 of the Act would mean that 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 or holder.
28. In Harman's case it is held that the issuance of notice would not by itself give rise to a cause of action but the communication of the notice would.
29. However, I am unable to agree with the contentions of the learned counsel for the petitioner, who would insist that the place where the statutory notice demanding payment of cheque was received or served on the accused alone can have jurisdiction.
30. Issuing of cheque per-se is not an offence. Presentation of the cheque and the dishonour of the cheque by the drawee bank may be referred to as commencement of the offence, which is followed by issuing of a statutory notice demanding payment and giving an opportunity to the drawee to avoid criminal prosecution.
31. On receipt of such notice and on failure to make payment, the offence is completed and therefore, the cumulative effect of all the above acts has to be taken into consideration to decide the jurisdiction of the Court.
32. Therefore, this court has already held that the jurisdiction for a trial of the offence shall be the place where a) the cheque has been issued b) the place where the cheque has been returned unpaid by the drawee bank and c) the place where the statutory notice demanding payment of the cheque was served or received.
33. In the present case, though the cheque was issued at Bangalore and the notice was also served at Bangalore, the place where the cheque has been returned unpaid by the drawee bank is only at Chennai.
34. In the additional common set of typed set of papers filed by the respondent, the return memo of Central Bank of India having office at Montieth Road, Chennai has been furnished. The respondent has presented the cheque to his bank viz., Indian Bank, Padi Branch, Chennai and the same has been forwarded to Central Bank of India, Montieth Road, Chennai where it is returned with an endorsement stating 'exceeds arrangement'. Though the cheque was drawn on the Central Bank of India, Indira Nagar, Bangalore Branch, it has been returned by the Central Bank of India, Montieth Road, Egmore Branch, Chennai.
35. Therefore, the court which has jurisdiction is neither the Magistrate's court at Bangalure nor the Judicial Magistrate court, Ambattur, Chennai, but the Metropolitan Magistrate's Court at Egmore, Chennai.
36. Therefore, initiation of proceedings and taking cognizance by the learned Judicial Magistrate, Ambattur, Chennai is not proper but it is only a curable defect which can be rectified by giving an opportunity to the respondent to withdraw the complaint and present the same before the jurisdiction court at Egmore, Chennai."
31. In Haya Systems India Pvt. Ltd., v. Don Construction Chemicals India Ltd, reported in 2011 (2) MWN (Cri.) DCC 34, the respondent therein has filed a case in C.C.No.7888 of 2007, on the file of the learned XVIII Metropolitan Magistrate Court at Saidapet against the petitioners therein alleging that they have committed an offence punishable under Section 138 of the Negotiable Instruments Act. In the said complaint, the respondent alleged that the second petitioner therein had purchased construction chemicals from the respondent and issued four cheques, dated 20.04.2007, 05.05.2007, 20.05.2007 and 05.06.2007 on behalf of the first petitioner for a total sum of Rs.9,50,000/- drawn on Citi Bank N.A., Bangalore. It was also alleged that when the cheques were presented for encashment through their bankers, namely Canara Bank, Teynampet Branch, Chennai on 07.06.2007, they were bounced back on 08.06.2007 with an endorsement 'Refer to Drawer'. This fact was intimated to the respondent by his banker. Hence, the respondent therein issued a legal notice to the petitioners therein on 26.06.2007, which was received by them on 28.06.2007. It was also alleged that since the petitioners had failed to pay the cheque amount within the stipulated period, the above said complaint was filed. It was contended that the learned XVIII Metropolitan Magistrate Court at Saidapet has no territorial jurisdiction to entertain the complaint under Section 177 of the Code of Criminal Procedure. The disputed cheques were drawn on M/s.Citi Bank N.A., Bangalore. Therefore, it was contended that neither issuance of notice from a place nor the location of the collecting bank can create jurisdiction in respect of a complaint under Section 138 of the Negotiable Instruments Act. Further, the first petitioner therein was a firm based in Bangalore at Karnataka and the respondent therein was also a firm having branch in Bangalore and there was no transaction in Chennai between the petitioners and the respondent and equally, there was no outstanding due to the respondent therein as alleged and that the cheques have not been dishonoured due to the insufficiency of funds. The petitioner therein further contended that none of the ingredients to constitute the offence punishable under Section 138 of the Negotiable Instruments Act occurred within the legal jurisdiction of the learned XVIII Metropolitan Magistrate Court at Saidapet. On the above pleadings and submissions, this Court held that, "15. ........For the completion of the offence punishable under Section 138 of the Negotiable Instruments Act, the following five components are sine qua non (1) Drawing of the cheque, (2) Presentation of the cheque to the drawee 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. It is not necessary that all the five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But concatenation of all the above five components are very much essential to constitute the offence under Section 138 of the Negotiable Instruments Act. As discussed in earlier paragraphs, referring Section 178 (d) of Code it is clear that if the five different acts were done in five different localities any one of the Courts exercising jurisdiction in one of the five localities can become the place of trial for the offence under Section 138 of the Act.
19. With very great respect to the Hon'ble Supreme Court, this Court considered that the above cited decision in M/s.Harman Electronics (P) Ltd., and Anr. v. M/s.National Panasonic India Ltd., reported in AIR 2009 SC 1168 is not made applicable to the facts and circumstances of the present case on hand. Because, the above cited case hinges around the center point of issuance of notice and that was why the Hon'ble Supreme Court has held that issuance of notice would not by itself give rise to cause of action. But communication of notice would. In the given case on hand as discussed in the foregoing paragraph, the above specified four cheques were presented by the respondent for collection in their bank namely Canara Bank, Teynampet Branch, at Chennai-600 018. Those cheques were returned dishonoured by the banker on 08.06.2007 with and endorsement of 'Refer to Drawer'. Thereafter, the respondent had issued a statutory notice to the petitioners, which is required under the proviso (b) to Section 138 of the Negotiable Instruments Act. Hence, it is clearly established that not only the notice, but the other ingredients viz. presentation of the cheques, dishonour of cheques and issuance of legal notice were all taken place within the local jurisdiction of the learned XVIII Metropolitan Magistrate Court at Saidapet.
20. For the foregoing reasons, the respondent being the complainant can choose any one of the local areas within the territorial limits of which all those five acts were done."
32. In Narendramal v. State of Maharashtra reported in 2011 (2) Bankmann 45 = 2011 All.MR(Cri.) 2297, the petitioner therein (accused) questioned the order of issuance of process dated 15.03.2008 passed by the learned Magistrate, Wardha in a Summary Criminal Case No.213 of 2008, as also the order dated 06.03.2010 passed by the learned Sessions Judge, Wardha in a Criminal Revision No.6 of 2010, on ground that the learned trial Magistrate had no jurisdiction to entertain and try the complaint and besides erroneous findings were recorded on the question of territorial jurisdiction by the learned Magistrate. The Court therein, after perusing the original copy of the Criminal Complaint Case No.213/2008, recorded that the title itself indicates that the complainant was resident of Wardha, Taluka & District - Wardha, while accused are resident of Nagpur. The Court also recorded as follows:-
The case of the complainant is that cheque in the sum of Rs.2,06,657/- drawn upon Gandhibag Sahakari Bank Limited, Branch MIDC, Nagpur bearing cheque No.461863, dated 20.10.2007 was issued by the accused which was presented by the complainant with State Bank of India, Civil Lines, Treasury Branch, Wardha for realization. The collecting banker by their intimation memo dated 17/11/2007 returned the cheque with an endorsement that cheque could not be honoured due to "Funds Insufficient" in the account of the accused. After dishonour of the cheque, the complainant had issued demand notice dated 12/12/2007 by registered post with acknowledgment due and also under postal certificate on both the addresses of the accused i.e. office address and on residential address. It was also contended that, despite demand notice and service thereof, the cheque amount was not paid and hence the complaint. The accused challenged the territorial jurisdiction of the Court on the ground that the learned trial Magistrate at Wardha has no jurisdiction to entertain and try the complaint. The Bombay High Court held as follows:
"4. Legal position is now clear in view of the ruling in case of Smt. Shamshad Begum V/s. B. Mohammed reported in AIR 2009 SC 1355 and observed thus:
"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 an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act."
5. The issue was also dealt with by Division Bench of this Court in Preetha S. Babu, Ernakulum V/s. Voltas Ltd., Chochin and another [2010 (3) Mh.L.J. 234] in para 31, it is observed thus:
"31.Therefore, the cheque can be presented at the collecting bank of the payee. The collecting bank has to then send it to the drawee bank. That must be done within six months. If the cheque is dishonoured and money is not paid within 15 days of the notice, complaint can be filed at the place where the collecting bank is situated. The idea is that the cheque should reach the drawee bank within six months. It can be directly presented to it or it can be presented through the collecting bank."
In view of these observations, the learned Judicial Magistrate, First Class at Wardha where the collecting bank is situated and where the cheque in question was presented and dishonoured has territorial jurisdiction to entertain and try the complaint. That being so, petition is meritless and stands dismissed."
33. This Court has no territorial jurisdiction over the Courts at Mumbai. Therefore, this Court exercising power under Articles 226 and 227, cannot entertain a writ petition to quash any proceeding instituted outside the territorial jurisdiction of the Court. The prayer sought for in this writ petition would virtually set at naught, the proceedings instituted on the file of the Learned 62nd Metropolitan Magistrate, Dadar, Mumbai. The jurisdiction to issue a writ is co-extensive with the territorial jurisdiction of the High Court, within whose jurisdiction, the subordinate court takes cognizance of a complaint. The proceedings instituted within the jurisdiction of one High Court cannot be stayed by another High Court. The remedy available to the aggrieved, can be invoked only in that High Court, within whose jurisdiction, the subordinate Court has taken cognizance and not in any other High Court, otherwise, it would amount to territorial transgression. In the case on hand, the petitioner has questioned the jurisdiction and the Bombay High Court has declined to adjudge the question, leaving it open to the petitioner to raise it before the court which took cognizance. Subsequently, the petitioner has also raised a preliminary objection regarding the territorial jurisdiction in Criminal Revision Application No.56 of 2010 before the Learned Sessions Judge, Sewree, and failed. In the present writ petition, he has sought for a declaration, to declare the proceedings initiated by M/s.Percept-H Pvt Ltd., Mumbai, third respondent herein, outside the agreed jurisdiction at Mumbai in Case No.23196/SS/2009 before Learned 62nd Metropolitan Magistrate Court as not valid, and this Court, while adjudicating the issue, has to necessarily answer the same, in the negative against the petitioner, in the light of the various decisions stated supra.
34. Reading of the judgments stated supra makes it abundantly clear that no Writ of Certiorari or declaration under Article 226 can be issued against a judicial officer and only in the High Court within whose jurisdiction an order of the subordinate court is questioned, it would confer jurisdiction on that High Court to entertain an application under Article 227 of the Constitution of India. The High Court in exercise of its powers under Article 226 of the Constitution of India, cannot indirectly question the order of the Learned 62nd Metropolitan Magistrate, Dadar, Mumbai, whose jurisdiction is outside this Court. The power of this Court cannot be exercised beyond its territorial jurisdiction. The jurisdiction of the court to take cognizance of a complaint has to be decided on the basis of the place of occurrence of the crime. The place of presentation of cheque and dishonour certainly is one of the places conferring jurisdiction on the criminal court, to take cognizance of the complaint as it is covered in K.Bhaskaran Vs. Sankaran Vaidhyan Balan and another, reported in AIR 1999 SC 3762. In Upasana Finance Limited Vs. S.N.Bagla & Company and others, reported in 2006 (1) Crl.L.J 833, the FIR was lodged in the State of Tamil Nadu on the basis of an order passed by a Learned Magistrate at Chennai under Section 156(3) of the Criminal Procedure Code. A Division Bench of the Calcutta High Court held that the Calcutta High Court has no jurisdiction to entertain a writ petition for quashing an FIR, as the cause of action had arisen wholly within the jurisdiction of Madras High Court. The Full Bench of the Kerala High Court in Mrs.Meenakshi Sathish Vs. M/s.Southern Petrochemical Industries and others, reported in 2007 (2) Crl.L.J. 2250, held that if the complaint of dishonour of cheque was pending in subordinate Court in another State, even if the cause of action for the said complaint arose at High Court 'A', the High Court at 'B' has no jurisdiction to quash the complaint. Cognizance of the Court under Negotiable Instruments Act, 1881, is on a private complaint. Even taking it for granted that a part of the cause of action for preferring a complaint has taken place within the jurisdiction of the Chennai Courts, this Court cannot issue any writ in the nature of declaration and interfere with any proceedings before a criminal court, outside the territorial jurisdiction of this Court and on the facts of this case, it is only for the Bombay High Court to interfere, on the question of territorial jurisdiction, for the reason that the Learned 62nd Metropolitan Magistrate, Dadar, Mumbai, would not come under the supervisory jurisdiction of this Court. Transgression of territorial jurisdiction cannot be permitted, whatever be the nomenclature of the prayer made in the writ petition. In M.Balakrishna Reddy Vs. Director, Central Bureau of Investigation, Hyderabad, and another, reported in 2001 (3) ALD 611 (DB) = 2002 (1) AnWR 578, a criminal case was registered against the petitioner at Bhopal. The petitioner therein filed a petition to quash the complaint in Andhra Pradesh. It was held that only the Court at Bhopal has the jurisdiction to quash the complaint and not the Andhra Pradesh High Court. The cause of action for preferring a complaint under Negotiable Instruments Act, 1881, depends upon (1) drawing of the cheque; (2) presentation of the cheque to the Bank; (3) returning the unpaid cheque 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. The complainant may chose any one of the places, where the offence has been committed. The offence under Section 138 of the Negotiable Instruments Act, is said to be committed only when the cheque was dishonoured. Therefore, as per the provisions of the Code of Criminal Procedure, a complaint can be preferred at the place where the offence is committed. Consent conferring jurisdiction for redressal of any dispute arising out of the contractual obligations will not take away the jurisdiction of the courts to take cognizance of an offence committed within its jurisdiction.
35. Having regard to the legal pronouncements of the Supreme Court as well as various High Courts, on the aspect of territorial jurisdiction of the criminal courts in taking cognizance of a complaint under Section 138 of the Negotiable Instruments Act, and on the facts of this case, inasmuch as the payment on the cheque issued by M/s.Galaxy Amaze Kingdom Ltd., Chennai, was intended to be honoured at Mumbai and that the cheque, was presented and dishonoured by the payee's bankers at Mumbai, it cannot be said that the Court at Mumbai within whose jurisdiction, the offence has been committed, lacks territorial jurisdiction to take cognizance.
36. As rightly contended by the learned counsel for the 4th respondent/complainant, having chosen to challenge the issuance of summons by the Learned 62nd Metropolitan Magistrate, Dadar, Mumbai, and became unsuccessful in the Criminal Writ Petition before the High Court of Bombay, and in the Criminal Revision Application before the Learned Sessions Judge, Sewree, the petitioner has preferred the present writ petition, which if allowed, would set at naught the orders passed by the Bombay High Court in Crl.W.P.No.409 of 2010, dated 08.02.2010. No courts in India in exercise of its jurisdiction under Article 226 of the Constitution of India, can issue any writ in the nature of declaration or certiorari, which would have effect of setting aside an order passed under Article 226 of the Constitution of India by another High Court. The exercise of jurisdiction by a High Court over the subject matter under Article 227 of the Constitution of India could be confined only, if any proceeding is instituted before the subordinate court falls within whose territorial jurisdiction of that High Court. The constitutional limitations in exercise of the powers by the High Court under Articles 226 and 227 are circumscribed. The Constitution of India is supreme and every court in India, cannot transgress its limitations, in exercise of its powers under Articles 226 or 227 of the Constitution of India. Though the learned counsel for the petitioner has contended that the contract executed between the parties, place of issuance of cheque, the place of registered offices of the payer and payee are all within the territorial jurisdiction of the courts in Chennai, yet, as stated supra, conduct of the parties cannot take away the jurisdiction of the court to take cognizance of an offence committed, where the cheque was presented and dishonoured. In the cases relied on by the learned counsel for the petitioner, interference has been with the cognizance of the criminal courts, on the basis of place of issuance of notice, and in such circumstances, the Supreme Court as well as other High Courts, considering the balance between the payer and payee, decided the case in favour of the petitioners therein, regarding the place of institution of the complaint.
37. This Court in its humble opinion is of the view, the decisions relied on by the learned counsel for the petitioner, may not in strict sense be applicable to the facts of this case. Indisputably, the invoice raised by the payee was not placed before the Learned 62nd Metropolitan Magistrate, Dadar, Mumbai. The decision rendered in Criminal Revision Application No.56 of 2010 dated 15.04.2010 passed by the Learned Sessions Judge, Sewree, and the decision made in Crl.W.P.No.409 of 2010, dated 08.02.2010, operate as res judicata and binding on the parties.
38. For the foregoing reasons, the writ petition is dismissed. M.P.No.1 of 2010 is ordered. No costs.
nb To
1) Union of India Rep. by Secretary to Government, Law Department, New Delhi.
2) The Secretary to Government Law Department, Government of Tamil Nadu, Secretariat. Fort St.George, Chennai-600 009.
3) The Learned Metropolitan Magistrate-62, Dadar, Mumbai