Allahabad High Court
Surendra Banjara vs State Of U.P. & Another on 12 March, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 30.1.2018 Judgment delivered on 12.3.2018 Court No. - 17 Case :- CRIMINAL REVISION No. - 4441 of 2015 Revisionist :- Surendra Banjara Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Mahendra Pal Singh Chauha,M.P.S.Chauhan Counsel for Opposite Party :- G.A.,Babita Upadhyay,Sanjeev Kumar Gaur Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal revision has been preferred against the judgment and order dated 16/10/2015 passed by the Sessions Judge, Aligarh in Criminal Revision No. 494 of 2015, M/s. Preeti Garments through its Proprietor Shri Ram Das vs State of U.P. and one another, whereby allowing the revision, the order dated 16/04/2015 of the learned Magistrate has been set-aside and the matter has been remanded with the direction to decide the complaint in accordance with law. Vide order dated 16/04/2015, the Judicial Magistrate, Court No. 2, Aligarh had dismissed the complaint Case No. 1140 of 2014, M/s. Preeti Garments through its Proprietor Shri Ram Das vs Surendra Banjara under Section 138 of Negotiable Instruments Act (to be referred from here onwards in short as ''NI Act').
2. A Complaint Case No. 1140 of 2014 M/s Preeti Garments through its proprietor Sri Ram Das vs. Surendra Banjara was filed u/s 138 of Negotiable Instruments Act. It was mentioned in the complaint that cheque nos. 338060, 338061 and 338062 dated 15/06/2014, 10/07/2014 and 05/08/2014 respectively were dishonoured which led the complainant to present the complaint because on these cheques being presented by the complainant, the bank issued three Memorandums dated 23/08/2014 stating therein that payment of these cheques was not being made because of insufficient amount being in the account of the drawer. Thereafter the opposite party-accused was sent a legal notice dated 01/10/2014 along with receipt of registry dated 01/10/2014 and, thereafter, the complaint was presented in the Court on 24/10/2014 against the opposite party-accused. The learned Court of Magistrate has recorded in its order that the following terms and conditions were necessary to be complied with for filing a complaint: (a) the cheque is presented before the bank within 6 months from the date of its issuance; (b) the payee or the holder in due course, as the case may be, makes a demand for the payment of the said amount of money by giving notice in writing, to the drawer of the cheque; (c) the drawer of the 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 15 days of the receipt of the said notice. The learned Court below has mentioned in its order that the above provision makes it evident that within 30 days of the cheque being dishonoured, it is necessary to issue notice to the drawer of the cheque to make the payment, which is a mandatory provision, but from the perusal of the record in the present case, it transpires that the information of the cheque being dishonoured dated 23/08/2014 is the date of issuance of bank memo, while notice by the complainant to the opposite party-accused was given on 01/10/2014, i.e. after the expiry of 30 days period from the date of dishonour of cheque. In the case at hand the complainant has mentioned 20/09/2014 to be the date of information received about dishonour of cheque, while there is no such evidence presented by him on file, which would reflect that he had received information regarding the cheques being dishonoured on 20/09/2014, because the memo issued by the bank in this regard is of 23/08/2014, which has been filed from the side of the complainant. Thus, relying upon the position of law laid down in Kamlesh Kumar V. State of Bihar and another, 2014 (2) SCC 424, in which the Supreme Court had held a complaint to be not maintainable in case demand notice was not issued within the time limit, the complaint was dismissed on 16.04.2015 under Section 203 Cr. P.C.
3. Against the said order dated 16.04.2015, Criminal Revision No. 494 of 2015 was preferred by complainant M/s Preeti Garments through its proprietor Sri Ram Das Vs. Surendra Banjara. The learned revisional Court has given the details of the facts of this case that the complainant/revisionist was doing business of ready-made garments, in connection of which an amount of Rs. 99,00,000/- was outstanding to be paid by the opposite party no. 2- accused. The opposite party no. 2- accused is stated to have issued three post dated cheques, i.e. dated 15/06/2014 of Rs. 57,00,000/-; dated 10/07/2014 of 30,00,000/- and dated 05/08/2014 of 12,00,000/-. When these three cheques were presented by complainant in his account, they were dishonoured because of insufficient amount being in the account of the drawer, information regarding which was dispatched by the bank on 20/09/2014. When the complainant received the information about these cheques having been dishonoured, he contacted opposite party no. 2- accused on phone and asked him to make the payment, but he was not paid the said amount, as a result of which he issued a notice dated 01/10/2014 to the opposite party no. 2-accused demanding the payment of the said amount. But even after service of the said notice upon opposite party no. 2- accused, he did not make the payment within 15 days, which compelled him to present the complaint. In support of his version, besides his affidavit, all the three original cheques, three bank memos, notice dated 01/10/2014, receipt of registry and registered envelope, addressed to the opposite party no. 2- accused, along with acknowledgement receipt, were filed. It is recorded in the said judgment that the Magistrate dismissed the complaint holding it to be not maintainable because the notice was not issued by the revisionist- complainant to the opposite party no. 2- accused within one month of the date when the cheques were dishonoured which was mandate of law, rather the notice was issued on 01/10/2014, hence the complaint was dismissed. It was argued before the learned Revisional Court from the side of the revisionist- complainant that the learned Court below ignored that in paragraph six of the affidavit filed in support of the complaint, it was specifically mentioned by him that the bank had given information to him about the cheques being dishonoured on 20/09/2014, prior to that he had not received any such information. After having received such information, within 10 days thereof, he informed the opposite party no. 2- accused about the cheques having been dishonoured and asked for payment to be made by him of the said amount within 15 days, but the opposite party no. 2- accused refused to receive the notice. Therefore, the learned Magistrate ought not to have dismissed the complaint. It was argued that under the provision of Section 138 of the NI Act, for filing a complaint, the period prescribed for issuance of notice to the accused is to be counted not from the date of dishonour of the cheque by the bank, rather than from the date when the information of such dishonour of cheque was received by the complainant and because in the case at hand the revisionist had received information of dishonour of cheque on 20/09/2014, within 30 days thereof he could have issued notice to opposite party no. 2- accused, while the said information was given to the opposite party no. 2- accused by him within just 10 days of receipt of the said information. Therefore, the order passed by the learned Magistrate was erroneous.
4. In rebuttal the learned State counsel had argued before the revisional court that it was wrong on the part of the revisionist- complainant to say that he had received information of dishonour of cheque on 20/09/2014 and not on 23/08/2014. Further, it was stated that the learned counsel for the revisionist- complainant had not clarified in paragraph six of the affidavit as to how the information of dishonour of cheque was communicated by the bank to the revisionist-complainant on 20/09/2014. It was reiterated by the learned counsel for the State that because the opposite party no. 2- accused was not informed within 30 days of 23/08/2014, which was the date of dishonour of cheque, the complaint could not have been filed and it has been wrongly mentioned by the revisionist- complainant that he had received the information about dishonour of cheque on 20/09/2014.
5. The learned Revisional Court has also mentioned that for filing a complaint under Section 138 of the NI Act, the court has to take into consideration the satisfaction of three necessary ingredients, i.e. , (i) there should be legally enforceable debt against the accused; (ii) for the entire and real satisfaction of the whole amount of debt, a cheque ought to be issued from the account of the banker; and (iii) the cheque ought to be dishonoured on account of insufficiency of amount in the account. In case these three ingredients are satisfied, a complaint may be filed under Section 138 of the NI Act.
6. The learned revisional Court has recorded in its judgment that from the perusal of the documents, it transpires that the opposite party no. 2- accused had issued three post dated cheques in favour of revisionist- complainant of an amount of Rs. 99,00,000/- lakhs, i.e. , dated 15/06/2014, 10/07/2014 and 05/08/2014, which is indicative of the fact that the opposite party no. 2- accused had legally enforceable debt to be paid to the revisionist- complainant. The evidence also reveals that all these cheques were issued by the opposite party no. 2- accused from his bank account, which got dishonoured due to insufficient amount being there in his account, which makes it evident that all the three necessary ingredients were satisfied in the case at hand, for the revisionist- complainant to file a complaint against opposite party no. 2- accused under Section 138 of the NI Act. It is further recorded that there were some additional necessary conditions which were required to be fulfilled for filing a case under Section 138 of the NI Act, i.e., (i) that the cheque was presented within six months from the date of its issuance or within the date mentioned therein; (ii) that 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 notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (iii) that 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. In the case at hand, after perusal of the documents it transpires that all the three cheques could have been presented for payment in bank within six months (in place of ''could have been', it ought to be ''were', it appears that the same has been mentioned by mistake), hence the compliance of the first ingredient was fulfilled wholly. It is also mentioned that, a perusal of the documents would indicate that the opposite party no. 2- accused did not make the payment of the said amount within fifteen days of receipt of information of the dishonour of cheque, because he refused to receive the registered post, by which he was sent notice in this regard, therefore, the third ingredient also stands fulfilled. But it is only with regard to the ingredient at no. 2 that there exist a dispute. According to the revisionist- complainant the information regarding dishonour of cheque was given by the bank to him on 20/09/2014, while in the bank memos, the said date is recorded as 23/08/2014 and on the basis of this, the learned counsel for the opposite party no. 2- accused argued that the revisionist-complainant had received the information about dishonour of cheques on 23/08/2014, while in paragraph six of the affidavit he has mentioned that bank had given information about dishonour of cheque on 20/09/2014 and not before that. The learned appellate Court held that there was no reason for disbelieving the revisionist- complainant. In case, the contention of the opposite party no. 2- accused is that the revisionist- complainant had been provided information about dishonour of cheque on 23/08/2014, evidence could be led by him in this regard at the time of recording evidence. Simply because in the memorandums of bank, the date of information being sent to the revisionist- complainant is recorded as 23/08/2014, it could not be held that the revisionist-complainant had received the said information on the said date. It is held that at this stage, till the denial comes of this fact, whatever has been mentioned in paragraph six of the affidavit of the revisionist- complainant, has to be taken to be correct prima facie that the information regarding dishonour of cheque was received by him on 20/09/2014. With this analysis the learned appellate Court has held that all the three necessary ingredients which were required to be complied with for filing the complaint under Section 138 of the NI Act were satisfied by the revisionist- complainant, against the opposite party no. 2- accused, therefore, the impugned order of the Magistrate was not sustainable and accordingly allowed the revision and set aside the impugned order dated 16/04/2015 of the learned Magistrate and remanded the case to him with the direction that he shall proceed according to law in the complaint filed by the revisionist- complainant.
7. From the side of the learned counsel for the revisionist- accused, before this Court, the main emphasis has been laid upon the fact that the opposite party no. 2- complainant had been informed by the bank through memos dated 23/08/2014 that the cheques could not be encashed because of there being no sufficient amount in the account of the drawer of the cheques i.e., revisionist- accused, while the opposite party no. 2- complainant issued notice to the revisionist- accused on 01/10/2014, which is beyond the mandatory time period of 30 days as laid down in the provisions of Section 138 of NI Act. That the opposite party no. 2- complainant could not be allowed to plead that he received the information of dishonour of cheque on 20/9/2014 and compute 30 days mandatory time period from the said date.
8. In affidavit the revisionist- accused has stated that the opposite party no. 2- complainant had filed a Complaint Case No. 1140 of 2014, under Section 138 N.I. Act in the Court of Judicial Magistrate, Court No. 2, Aligarh stating therein that opposite party no. 2- complainant and the revisionist- accused were running business of sale of ladies suits and ready-made garments. In this regard the revisionist- accused approached opposite party no. 2- complainant to purchase ladies suits and ladies garments which were supplied by the opposite party no. 2- complainant for a sum of Rs. 99,00,000/-. For discharge of payment of the said goods, the revisionist- accused had issued post dated cheques i.e. Cheque No. 338060 dated 15.6.2014 for a sum of Rs. 57,00,000/-, Cheque No. 338061 dated 10.7.2014 for a sum of Rs. 30,00,000/-, Cheque No. 338062 dated 5.8.2014 for a sum of Rs. 12,00,000/-. At the time of issuing the said cheques, it was stated by the revisionist- accused that the amount in the cheques would be cleared on the due dates. The said cheques were presented by the opposite party no. 2- complainant in ICICI bank, Branch Jhandewal Extension, New Delhi, but the same could not be encashed and were returned to the opposite party no. 2-complainant with the remark (fund in-sufficient) on 23.8.2014 with memos on 20.9.2014. After the receipt of information regarding dishonour of the aforesaid cheques, the opposite party no. 2- complainant requested the revisionist- accused to pay the said amount but he finally refused to pay the same on 30.9.2014. Thereafter, the opposite party no. 2- complainant sent a legal notice to the revisionist- accused on 1.10.2014 through his counsel by a registered post but revisionist- accused did not receive the same and the same was returned with false endorsement. The real fact was that the revisioist was running business of clothes in Hyderabad and on 20.2.2014, he came to his village to solemnize the marriage of his son. At that time he was carrying documents in relation to business and two cheque books were in his bag, which contained only one cheque signed by him. After the marriage of his son, the revisionist- accused came to know that two cheque had got mis-placed from his cheque books. Opposite party no. 2- complainant was a relative of the revisionist- accused, who was to come in the marriage of his son. The opposite party no. 2- complainant had stolen those cheques from the cheque books of the revisionist- accused and fraudulently presented them before bank after making forged signatures of the revisionist- accused. The revisionist- accused had never issued the aforesaid cheques in favour of the opposite party no. 2- complainant. He had no knowledge with regard to any legal notice sent by the opposite party no. 2- complainant. As soon as he came to know with regard to theft of the said cheques, he immediately gave an applicaton to the Station Officer, P.S. Janwa, District Aligarh on 5.3.2014, which was got received on the same day. The opposite party no. 2- complainant filed a complaint against him under Section 138 N.I. Act, P.S. Jawan, District Aligarh in the court of Judicial Magistrate, Court No. 2, Aligarh on 22.10.2014, wherein he filed his own affidavit under Section 200 Cr.P.C. on 22.10.2014 but did not examine any other witness. On the said complaint, Judicial Magistrate No. 2, Aligarh rejected the complaint of the opposite party no. 2- complainant under Section 203 Cr.P.C. vide order dated 16.4.2015. As per the complaint, cheques were dishonoured on 23.8.2014 while the legal notice was sent on 1.10.2014 by registered post after 39 days of the dishonour of the cheques. Only one legal notice was sent for dishonour of three cheques and no date of service of the said notice has been mentioned in the complaint. No compliance has been made of Section 142(b) of N.I. Act, which mandates that the complaint ought to be filed within one month of the date on which the cause of Action arises. As per the complaint, cheques were dishonoured on 23.8.2014 and the opposite party no. 2- complainant got the knowledge about it very same day but he sent notice on 1.10.2014 i.e. after two months of the dishonour of cheque, in violation of provision provided in Proviso (b) to Section 138 N.I. Act, which makes the complaint not maintainable. Further it is mentioned that the allegation is that the revisionist- accused issued cheques at Delhi and was running business at Hyderabad but the opposite party no. 2- complainant has filed a complaint at Aligarh where the court did not have jurisdiction to entertain the complaint. According to the cheques, the limit of these cheques was only up to 50,000/-, therefore, how could the revisionist- accused issue the said cheques which were of huge amount much beyond Rs. 50,000/-, hence, the revision should be allowed and the impugned order dated 16.10.2015 passed by the Sessions Judge, Aligarh in Criminal Revision No. 494 of 2015 should be set aside and order dated 16.4.2015 passed by the Judicial Magistrate, Court No. 2, Aligarh should be restored.
9. In counter affidavit the opposite party no.2- complainant, in rebuttal, has mentioned that the revisionist- accused was in business relationship since the year 2012, who issued the referred three post dated cheques of different amounts against the purchase of material made by him and the said cheques, were dishonoured and information to this effect was given by the concerned bank on 20.9.2014. Thereafter, the opposite party no. 2- complainant sent legal notice on 1.10.2014 through his counsel, which was not accepted by the revisionist- accused and, thereafter, the present proceeding was initiated before the competent court.
10. The sole ground set up by the opposite party no. 2- complainant is that the case was not maintainable as the legal notice was not given to the revisionist- accused within thirty days of receiving information about dishonour of cheques. Against the order of Judcial Magistrate, Court No. 2, Aligarh he had filed Criminal Revision No. 494 of 2015, which was allowed vide order dated 6.10.2015 by the learned Additional Sessions Judge, Aligarh. A perusal of the said judgment would clearly show that the provisions of Section 138 N.I. Act were fully examined and all the three ingredients were made clear in the said judgment and order. The two pre-conditions were not denied by the revisionist- accused but the sole objection taken by the revisionist- accused was that the legal notice was not sent within stipulated time as contemplated under the provisions of the Act as the information of dishonour of cheques was given by the bank on 23.8.2014. A perusal of the information given by the bank shows that cheque itself was dishonoured on 23.8.2014 and the information also appears to have been drafted on the same day, but it could be served upon the opposite party no. 2- complainant the same day which was only possible by hand, which has not been done in the present case. Even if the contention of the revisionist- accused be considered (though not accepted) then also the time of service requires to be considered and the notice is well within time. It is further stated that the revisionist- accused is now denying to have ever issued any cheques to the opposite party no. 2- complainant, rather is taking plea that the said cheques had been stolen and forged signatures were made on them of the revisionist- accused. It was surprising enough that such contention was never raised by him before the courts below nor after having come to know of the said incident, he initiated any criminal proceeding against the opposite party no. 2- complainant. In fact after initiation of the current proceedings, the revisionist- accused had approached the opposite party no. 2- Complainant Firm and called upon it to make a settlement out of court, but when the Proprietor of the firm/opposite party no. 2- complainant reached Aligarh, the revisionist- accused and his brother along with their associates causes violance and threatened to kill him, snatched away his cash and jewellery regarding which an F.I.R. was lodged which was registered as Case No. 273 of 2015 at Police Station Civil Lines, Aligarh, under Section 323, 504, 336, 392 and 506 IPC. It is further mentioned in the said counter affidavit that dishonour of cheque happened on 23.8.2014 but that does not mean that information regarding the same was given to opposite party no. 2- complainant the same day. In fact the information of the said dishonour of cheque given by concerned bank was received by opposite party no. 2/Firm- complainant only on 20.9.2014., hence, the order of learned revisional court is absolutely perfect. The ground of jurisdiction was not earlier raised by the revisionist- accused before the court below. The cheques in question being issued in Aligarh and dishonoured by the bank situated in Aligarh, the cause of Action has arisen at Aligarh.
11. In rejoinder Affidavit, the revisionist- accused has stated that soon after the knowledge of cheques having been stolen, he gave information at police station Jawan, District Aligarh on 5.3.2014 and also, thereafter, gave an application to S.S.P. Aligarh on 22.9.2014. Thereafter, he filed an Application No. 1132 of 2014 under Section 156(3) Cr.P.C. in the court of A.C.J.M. Court No. 2, Aligarh against opposite party no. 2- complainant and seven others on 10.10.2014. The application was treated by the court as a complaint vide order dated 25.11.2014, in which the statement of the revisionist- accused has been recorded under Section 200 Cr.P.C. and 22.4.2016 was fixed for recording statement under Section 202 Cr.P.C.
12. Heard the arguments of learned counsel for the revisionist Sri M.P.S. Chauhan and learned counsel for the opposite party no. 2 Ms. Babita Upadhyay and perused the record.
13. It is apparent from the respective versions of the parties that in the case at hand, two points mainly needs to be considered. The first point relates to the jurisdiction of the court where the proceedings under Section 138 N.I. Act could be initiated, although it is true that the said ground had not been taken by the revisionist before the courts below, but it is settled law that the jurisdiction can be taken into consideration at any point of time till the matter is finally decided. The second point relates to whether proceedings under Section 138 N.I. Act were not maintainable in this case in view of a notice not having been issued within thirty days of the dishonour of cheques, as per the mandatory provision of Clause (b) of proviso to Section 138 N.I. Act.
14. One additional point which may also be considered, although the same has not been taken into consideration by both the courts below, is, that what impact would the fact have on the present proceedings, when the cheques which are alleged to have been dishonoured, had printed on them that they were valid for an amount up to Rs. 50,000/- only and yet the amounts which have been filled up in those cheques are of much higher value.
15. Firstly, the point of jurisdiction is being taken up by this Court. It would be pertinent to reproduce here the relevant provision of N.I. Act, i.e. Section 142 which is as follows.
"142 Cognizance of offences. --Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of Action arises under clause (c) of the proviso to Section 138:
Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for 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 to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account."
16. Clause (2) of the above Section clearly states that 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 account, is situated or 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 amount is situated.
17. The above provision has been brought about in the enactment through an Amendment on 15.6.2015. In the case at hand, three cheques, which are alleged to have been dishonoured, are of the year 2014 which according to the complainant/opposite party no. 2, were dishonoured on 23.8.2014 but it's information was received by the opposite party no. 2 on 20.9.2014, therefore, it is apparent that the occurrence in this case is of the period prior to the said Amendment in the N.I. Act, but it would be pertinent to mention here that in Dashrath Rupsingh Rathod Vs. State of Maharashtra and another, 2014 (9) SCC 129, the matter of jurisdiction was considered at length in the matters related to Section 138 N.I. Act. Therefore, it would be pertinent to reproduce hereinbelow relevant paragraphs of the said judgment, in which the interpretation of this Section concerning jurisdiction has been made:-
"20. We feel compelled to reiterate our empathy with a payee who has been duped or deluded by a swindler into accepting a cheque as consideration for delivery of any of his property; or because of the receipt of a cheque has induced the payee to omit to do anything resulting in some damage to the payee. The relief introduced by Section 138 of the NI Act is in addition to the contemplations in the IPC. It is still open to such a payee recipient of a dishonoured cheque to lodge a First Information Report with the Police or file a complaint directly before the concerned Magistrate. If the payee succeeds in establishing that the inducement for accepting a cheque which subsequently bounced had occurred where he resides or ordinarily transacts business, he will not have to suffer the travails of journeying to the place where the cheque has been dishonoured. All remedies under the IPC and CrPC are available to such a payee if he chooses to pursue this course of Action, rather than a Complaint under Section 138 of the NI Act. And of course, he can always file a suit for recovery wherever the cause of Action arises dependent on his choosing.
21. The interpretation of Section 138 of the NI Act which commends itself to us is that the offence contemplated therein stands committed on the dishonour of the cheque, and accordingly the JMFC at the place where this occurs is ordinarily where the Complaint must be filed, entertained and tried. The cognizance of the crime by the JMFC at that place however, can be taken only when the concomitants or constituents contemplated by the Section concatenate with each other. We clarify that the place of the issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial jurisdiction of the complaints even though non-compliance therewith will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general of the NI Act. The vindication of this view is duly manifested by the decisions and conclusion arrived at by the High Courts even in the few cases that we shall decide by this Judgment. We clarify that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situs where the Section 138 Complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the Court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn.
22. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to Complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged respondents-accused who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred."
18. From the above analysis the position of law is absolutely clear that even in pending cases, the jurisdiction of filing a complaint under Section 138 of N.I. Act would lie at a place where drawee bank is situated, where the drawer maintains his account and from where it was reported that there was no sufficient amount in the account of drawer and accordingly, the cheques got dishonoured.
19. In the case at hand, it has been mentioned by the opposite party no. 2 in paragraph 21 of the counter affidavit that the cheques in question having been issued in Aligarh and having been dishonoured by the bank situated in Aligarh, cause of action was bound to arise in Aligarh. It has come on record that all the three memorandums of dishonour of cheques were issued by ICICI bank Branch Jhandewalan Bag Extension, New Delhi, in which the M/s Preeti Garments, New Delhi was informed that the said cheques were being returned due to insufficient funds. From the perusal of cheques, it is apparent that they were presented by the opposite party no. 2- complainant in Aligarh, but in view of above position of law, it is immaterial where these cheques were presented for being encashed. Since these cheques were drawn on the ICICI bank situated in New Delhi, where the drawer or the account holder i.e. the revisionist- accused was having his account and these cheques got dishonoured becuase of there being insufficent amount in the said account at Delhi, the drawee bank would be treated to be located in Delhi and not at Aligarh, therefore, in view of above position of law, the jurisdiction of this case would lie at Delhi and not at Aligarh. This point seems to have escaped the attention of both the courts below.
20. In Dashrath Rupsingh Rathod's case (supra), it was also also contemplated as to what will hapepen of the pending cases. In the case at hand, the position being very clear that it was very initial stage of the case as only summoning order was rejected by the Magistrate's court, which order has been reversed by the Revisional Court, therefore, stage of Section 145 (2) of the N.I. Act was yet to reach. Therefore, in this case the proper course would be for the courts below to return the complaint to the presenter of the same to be presented before the court having jurisdiction, but this course has not been adopted by the courts below which is found erroneous.
21. The next point which this court would like to take up is whether the case was hit by proviso to Section 138 (b) N.I. Act. For the sake of convenience, the said Section is reproduced hereinbelow:
"138(b)"the payee or the hlder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and"
22. It is apparent from the above provision that the period for issuing notice by payee or holder in due course is thirty days from the date of receipt of information by him from the bank regarding return of the cheque as unpaid. The question is, therefore, that in the case at hand, when the information was received by the payee/holder in due course opposite party no. 2- complainant. It is alleged by him in counter affidavit that though the cheques were dishonoured on 23.8.2014 as was mentioned in the memos of information but the same was not communicated to him till 20.9.2014. Therefore, according to him he could receive information about dishonour of cheques only on 20.9.2014 and from there onwards thirty days have to be counted within which the notice could have issued to the revisionist. In the case at hand, the notice has been issued on 1.10.2014, therefore, the said notice would not entail any infirmity and would be held to have been issued within thirty days.
23. In this regard, the reliance is placed by the learned counsel for the opposite party no. 2- complainant on Kamlesh Kumar V. State of Bihar and another, 2014 (2) SCC 424. Paragraph 13 of the said judgment is relevant, which is reporduced hereinbelow:-
"13. The crucial question is as to on which date the complainant received the information about the dishonour of the cheque? As per the appellant, the respondent complainant received the information about the dishonour of the cheque on 10.11.2008. However, the respondent complainant has disputed the same. However, we would like to add that at the time of arguments the aforesaid submission of the appellant was not refuted. After the judgment was reserved, the complainant has filed the affidavit alleging therein that he received the bank memo of the bouncing of cheque on 17.11.2008 and therefore, legal notice sent on 17.12.2008 is within the period 30 days from the date of information."
24. It is apparent from the above that the court had held that normally it would have called upon the parties to prove their respective versions before the trial court for leading their evidence on the point as to when the cheques were dishonoured, information was received but in the above case, it was not required due to position of fact being clear on record. But in the case at hand, the opposite party no. 2- complainant had clearly stated on oath that information could be received by him about the cheque having been dishonoured/bounced on 20.9.2014. In case there was any controversy with regard to the said fact, the parties could have led evidence on this point before the court below during the trial. Therefore, the finding in this regard by the learned revisional court below cannot be held to be wrong that since the opposite party no. 2- complainant had stated on oath about the knowledge of cheques having been bounced to have occurred to him on 20.9.2014, the same could not have been dis-believed by the Magistrate's court outright to reject the complaint. This court's view is in consonance with the view expressed by learned revisional court below and finds that this was a matter which could have been decided only after taking evidence from both the sides during trial.
25. Lastly argument in passing was made by learned counsel for the revisionist- accused that when the cheque itself had a limit of Rs. 50,000/- how could it be believed that cheques of an amount higher to that value could have been issued by the revisionist- accused in favour of opposite party no. 2.
26. It is a matter to be decided by court undertaking trial of this case to give finding as to whether the amount which is within the cheque limit i.e. Rs. 50,000/- only could be released or the amount higher in denomination to Rs. 50,000/- could also be payable. Therefore, this point needs to be considered by the trial Court.
27. In view of above, the judgment and order dated 16.10.2015 of the revisional court is upheld as regards maintainability of the complaint and for remand of the matter to the court below for proceeding with the complaint in accordance with law. To that extent this revision is rejected. However, the trial court is directed to proceed to decide this case in accordance with the direction given in the body of this judgment as regards jurisdiction of the trial court.
Order Date :- 12.3.2018 A.P. Pandey