Punjab-Haryana High Court
R.Subramanian And Another vs Vishal Khurma on 14 August, 2013
Author: Sabina
Bench: Sabina
Crl.Misc.No.M-22139 of 2010 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Crl.Misc.No.M-22139 of 2010 (O&M)
Date of decision: 14.8.2013
R.Subramanian and another
......Petitioner
Versus
Vishal Khurma
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.V.K.Jindal, Advocate,
for the petitioners.
Mr.Rajesh Dadwal, Advocate,
for respondent No.1.
****
SABINA, J.
This petition has been filed by the petitioners under Section 482 of the Code of Criminal Procedure, 1973 for quashing of criminal complaint No.404/2 dated 16.9.2009 (Annexure P-2) under Section 138 of the Negotiable Instruments Act, 1881 (for short- " the Act") and all the subsequent proceedings arising therefrom including summoning order dated 16.9.2009 (Annexure P-3).
Learned counsel for the petitioners has submitted that in the present case, no cause of action had arisen at Ludhiana. Respondent No.1 was working with the petitioners at Chennai. The cheque in question with regard to the salary of respondent No.1 was Devi Anita issued by the petitioners from their bank account maintained at 2013.08.21 14:59 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.No.M-22139 of 2010 (O&M) 2 Chennai. Respondent No.1 had deposited the said cheque in his bank account in Maharashtra. However, notice with regard to dishonour of cheque was served from Ludhiana. The Court at Ludhiana had no jurisdiction to try the complaint merely because notice had been served on the petitioners from Ludhiana. In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in Harman Electronics Pvt.Ltd. vs. National Panasonic India Pvt. Ltd. (2009) 1 Supreme Court Cases 720, wherein, it was held as under:-
"14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos
(a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause Devi Anita of action for filing a complaint. As it is only on receipt of 2013.08.21 14:59 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.No.M-22139 of 2010 (O&M) 3 the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would."
Learned counsel has next placed reliance on the decision of the Apex Court in Nishant Aggarwal vs. Kailash Kumar Sharma 2013 (3) RCR (Criminal) 697, wherein, while relying upon the decision of the Harman Electronics's case (supra), it was held as under:-
"In such circumstances, we are of the view that Harman Electronics (supra) is only an authority on the question where a court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down in K. Bhaskaran (supra). This Court has accepted that the place where the cheque was presented and dishonoured has jurisdiction to try the complaint. In this way, this Court concluded that issuance of notice would not by itself give rise to a cause of action but communication of the notice would. In other words, the court clarified only on the service in such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days, thereafter, the commission of an offence completes. We are of the view that this Court in Harman Devi Anita Electronics (supra) affirmed what it had said in K. 2013.08.21 14:59 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.No.M-22139 of 2010 (O&M) 4 Bhaskaran (supra) that court within whose jurisdiction the cheque is presented and in whose jurisdiction there is failure to make payment within 15 days of the receipt of notice can have jurisdiction to try the offence under Section 138 of the N.I. Act. It is also relevant to point out that while holding that the Chandigarh Court has jurisdiction, this Court in Harman Electronics (supra) observed that in the case before it, the complaint was silent as to whether the said cheque was presented at Delhi. In the case on hand, it is categorically stated that the cheque was presented at Bhiwani whereas in Harman Electronics (supra) the dishonour had taken place at Chandigarh and this fact was taken into account while holding that Chandigarh court has jurisdiction. In the complaint in question, it is specifically stated that the dishonour took place at Bhiwani. We are also satisfied that nothing said in Harman Electronics (supra) had adverse impact on the complainant's case in the present case".
Learned counsel for respondent No.1, on the other hand, has opposed the petition and has submitted that the Court at Ludhiana has the jurisdiction to try the suit.
In the present case, respondent No.1 has filed the complaint in question against the petitioners and another qua dishonour of cheque dated 24.1.2009 in the sum of ` 1,01,345/-. Devi Anita Admittedly, respondent No.1 had worked as Associate Vice President 2013.08.21 14:59 I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.No.M-22139 of 2010 (O&M) 5 (Operations) with the petitioners at Chennai. The cheque in question was presented for encashment by respondent No.1 to his bank at Nasik (in Maharashtra). The cheque had been issued by the petitioners-company from its account maintained with the bank at Chennai. Hence, the Court at Ludhiana had no jurisdiction to try the complaint merely because the notice qua dishonour of the cheque had been issued from Ludhiana by the complainant. Thus, the case in hand is duly covered by the decision of the Apex Court in Harman Electronics's case (supra) as well as Nishant Aggarwal's case (supra).
Section 201 Cr.P.C. read as under:-
"Procedure by Magistrate not competent to take cognizance of the case .- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court."
Thus, as per the above provision, where a complaint is made to the Magistrate, who is not competent to take cognizance of the offence, he shall return the same with an endorsement in that effect.
Accordingly, this petition is allowed. Impugned summoning order dated 16.9.2009 (Annexure P-3) is set aside. Devi Anita 2013.08.21 14:59
Since the Magistrate at Ludhiana was not competent to I attest to the accuracy and integrity of this document Chandigarh Crl.Misc.No.M-22139 of 2010 (O&M) 6 take cognizance of the offence, the Magistrate is directed to return the complaint to the complainant for presentation to the proper court with an endorsement to that effect.
(SABINA) JUDGE August 14, 2013 anita Devi Anita 2013.08.21 14:59 I attest to the accuracy and integrity of this document Chandigarh