Karnataka High Court
K -9 Enterprises vs The Branch Manager on 31 October, 2023
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NC: 2023:KHC-D:12689
WP No. 106355 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 106355 OF 2023 (GM-RES)
BETWEEN:
K-9-ENTERPRISES,
REPRESENTED BY ITS PROPRIETOR,
SHRI NADEEM S/O. ZAFRULLA KHAN,
AGE: 29 YEARS, OCC: BUSINESS,
R/O. PLOT NO.27, SY.NO.1061,
MAHARANI COMPLEX, NEW GANDHI NAGAR,
BELAGAVI-590016.
...PETITIONER
(BY SRI SANTOSH PUJAR, ADVOCATE)
AND:
1. THE BRANCH MANAGER,
ADITYA BIRLA FINANCE LIMITED,
R/O. CTS.NO.14. 2ND FLOOR,
Digitally signed
by
MOHANKUMAR
MOHANKUMAR B SHELAR
SHRI KRISHNA TOWER,
B SHELAR
Date:
2023.11.09
10:47:11 +0530
RPD CROSS, KHANAPUR ROAD, TILAKAWADI,
BELAGAVI-590006.
2. THE MANAGING DIRECTOR,
ADITYA BIRLA FINANCE LIMITED,
R/O. 18TH FLOOR, TOWER 1, ONE WORLD CENTRE,
JUPITER MILL COMPOUND 841, SENAPAT BAPAT
MARG,
ELPHINSTONE ROAD, MUMBAI-400013.
3. THE SENIOR MANAGER,
RESERVE BANK OF INDIA,
R/O. MAIN/CENTRAL BRANCH,
#CENTRAL OFFICE BUILDING,
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NC: 2023:KHC-D:12689
WP No. 106355 of 2023
SHAHID BHAGAT SINGH ROAD,
MUMBAI-400 001.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER WRIT
OR ORDER DIRECTING THE RESPONDENT NO.1 AND 2 TO
DEPOSIT ANY CHEQUES ISSUED BY THE PETITIONER TO THE
RESPONDENT NO.1 AND 2 IN RESPECT OF LOAN AVAILED BY
THE PETITIONER FROM THE RESPONDENTS NO.1 AND 2, ONLY
AT BELAGAVI CITY, KARNATAKA WHICH IS THE USUAL PLACE
OF BUSINESS OF THE PETITIONER AND RESPONDENT NO. 1
AND 2; ISSUE A WRIT IN THE NATURE OF MANDAMUS OR ANY
OTHER WRIT OR ORDER DIRECTING THE RESPONDENT 3 TO
FRAME DIRECTIONS/GUIDELINES/RULES/REGULATIONS ETC.,
THAT ENSURES THAT THE RESPONDENT NO.1 AND 2
DEPOSITS THE CHEQUES GIVEN BY THE PETITIONER AT THE
USUAL PLACE OF BUSINESS OF THE PETITIONER AND
RESPONDENT NO.1 AND 2.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 106355 of 2023
ORDER
1. The petitioner in this case is seeking writ of mandamus and the prayer reads as under:
"A) Issue a writ in the nature of mandamus or any other writ or order directing the Respondent Nos.1 and 2 to deposit any cheques issued by the Petitioner to the Respondents No.1 and 2 in respect of loan availed by the Petitioner from the Respondents No.1 and 2, only at Belagavi City, Karnataka which is the usual place of business of the Petitioner and Respondents No.1 and 2."
2. The second prayer in the writ petition is to direct respondent No.3 - Reserve Bank of India, to issue directions / guidelines / rules / regulations etc., to compel respondents No.1 and 2, to deposit the cheque for collection in the usual place of business of the petitioner and the respondents No.1 and 2.
3. The other facts necessary for adjudication of the case can be summarized as under:
4. The petitioner borrowed loan from respondent No.1 which is a branch of Respondent No.2 Company. Respondent No.3 is Reserve Bank of India.
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5. The petitioner claims that he has issued cheques, in advance, in favour of respondent No.1, towards repayment of the loan borrowed by him. It is the petitioner's apprehension that respondents No.1 and 2 who are having branches at various places in India, are likely to present the cheques issued by the petitioner towards repayment of loan, for collection in a place other than the place of residence of the petitioner. In such a situation, if the cheque is dishonoured, the Court in such place where the cheque presented will get the jurisdiction to try the complaint under Section 138 of Negotiable Instruments Act. Since such Court is not in a place where the petitioner is not residing, petitioner will not be in a position to effectively defend the complaint filed against him.
6. Learned counsel for the petitioner in support of his contention would place reliance on the judgments of the Hon'ble Apex Court in the case of:
(a) Dashrath Rupsingh Rathod vs. State of Maharashtra, (2014) 9 SCC 129
(b) Hindon Forge Private Limited and another vs. State of Uttar Pradesh through District Magistrate, Ghaziabad and another (2019) 2 SCC 198 -5- NC: 2023:KHC-D:12689 WP No. 106355 of 2023
(c) Harman Electronics Private Limited and another vs. National Panasonic India Private Limited (2009) 1 SCC 720.
7. This Court has considered the contentions raised at the Bar and also perused the aforementioned judgments.
8. In Dashrath Rupsingh Rathod's case supra, the Hon'ble Apex Court was dealing with the question on cause of action and territorial jurisdiction of the Magistrate Courts to entertain a complaint under Section 138 of the Negotiable Instruments Act. The said judgment was rendered in 2014. In the year 2015, the provision relating to territorial jurisdiction of the Court dealing with complaints under Section 138 of Negotiable Instrument Act is amended vide Act 26 of 2015. The amended Section 142 reads as under:
Cognizance of offences.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;-6-
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(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]
(c) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.].
[(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.-- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered -7- NC: 2023:KHC-D:12689 WP No. 106355 of 2023 to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.
9. Section 142(2)(a) of the Negotiable Instruments Act is relevant for the adjudication of this case. Under this provision, the payee is enabled to present the cheque issued in his favour, in a place where the payee is having the bank account. Admittedly, respondent No.2 is a financial institution having branches across India. Section 142(2)(a) of the Negotiable Instruments Act enables the payee to present the cheque wherever the payee is having a bank account.
10. This being the position, the first prayer seeking a writ of mandamus to direct respondents No.1 and 2 to present the cheque issued by the petitioner in a place where the petitioner and the respondent No.1 is carrying on the business is not maintainable. When the law enables a thing to be done in a particular manner, the writ of mandamus to prohibit such action permitted in law, does not lie.
11. As far as the second prayer seeking direction against the Reserve Bank of India to frame the guidelines, rules and regulations relating to presentation of cheque is concerned, -8- NC: 2023:KHC-D:12689 WP No. 106355 of 2023 this Court is of the view that such a jurisdiction is not vested in the Court. The Courts neither have a power to legislate nor the power to direct the State to legislate. Even if the Reserve Bank of India is enabled under the Statute to frame rules/guidelines relating to banking activities, the Courts do not have the power to issue directions to Reserve Bank of India to frame rules/guidelines over those matters where the Reserve Bank of India is competent to frame Rules and Guidelines.
12. As far as the contentions raised based on the judgment in Hindon Forge Private Limited supra is concerned, it is to be noticed that the said judgment is rendered in an entirely different factual background interpreting the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The law laid down in the said case is nothing to do in the contentions raised in the present petition.
13. The law in Harman Electronics Private Limited supra is not applicable. The said judgment is delivered in 2009. Since the amendment of 2015 enables the payee to present the cheque in a place where payee has maintained the Bank -9- NC: 2023:KHC-D:12689 WP No. 106355 of 2023 account, the ratio in the said case cannot be applied to this case.
14. For the reasons recorded, this Court is of the view that the writ petition is entirely misconceived.
Accordingly, the petition is dismissed.
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JUDGE RSH / Ct-mck List No.: 1 Sl No.: 18