Jammu & Kashmir High Court - Srinagar Bench
M/S Aggarwal And Co vs Punjab Tractor Ltd on 24 July, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR 561-A No. 25 of 2010, IA(Cr.) No. 64 of 2010 561-A No. 55 of 2010, IA(Cr.) No. 107 of 2010 561-A No. 22 of 2010, IA(Cr.) No. 62 of 2010 561-A No. 32 of 2010, IA(Cr.) No. 70 of 2010 561-A No. 33 of 2010, IA(Cr.) No. 71 of 2010 561-A No. 34 of 2010, IA(Cr.) No. 72 of 2010 561-A No. 35 of 2010, IA(Cr.) No. 73 of 2010 561-A No. 05 of 2010, IA(Cr.) No. 16 of 2010 561-A No. 50 of 2009, IA(Cr.) No. 112 of 2009 561-A No. 58 of 2009, IA(Cr.) No. 128 of 2009 561-A No. 57 of 2009, IA(Cr.) No. 127 of 2009 561-A No. 55 of 2009, IA(Cr.) No. 123 of 2009 561-A No. 86 of 2009, IA(Cr.) No. 170 of 2009 561-A No. 85 of 2009, IA(Cr.) No.169 of 2009 561-A No. 48 of 2009, IA(Cr) No. 110 of 2009 561-A No. 49 of 2009, IA(Cr) No. 111 of 2009 561-A No. 47 of 2009 561-A No. 122 of 2009, IA(Cr) No. 261 of 2009 561-A No. 123 of 2009, IA(Cr) No. 262 of 2009 561-A No. 55 of 2011 561-A No. 56 of 2011, IA(Cr) No. 124 of 2011 561-A No. 57 of 2011, IA(Cr) No. 125 of 2011 561-A No. 107 of 2010, IA(Cr) No. 235 of 2010 561-A No. 108 of 2010, IA(Cr) No. 236 of 2010 561-A No. 65 of 2010, IA(Cr) No. 124 of 2010 561-A No. 28 of 2010, IA(Cr) No. 66 of 2010 561-A No. 27 of 2010, IA(Cr) No. 65 of 2010 561-A No. 61 of 2010, IA(Cr) No. 113 of 2010 561-A No. 69 of 2010, IA(Cr) No. 128 of 2010 561-A No. 106 of 2010, IA(Cr) No. 234 of 2010 561-A No. 36 of 2010, IA(Cr) No. 74 of 2010 561-A No. 68 of 2010, IA(Cr) No. 127 of 2010 561-A No. 72-A of 2011 M/S AGGARWAL AND CO. R. K. TRACTORS AND ORS. SAILESH SANGHVI AND OTHERS M/S PAYAL AUTOMOBILES AND ANT. M/S R. K. TRACTORS AND ORS. R. K. TRACTORS AND OTHERS M/S PAYAL AUTOMOBILES AND M/S. SRI BALAJI AUTO AGENCIES BHOOMI PUTRA TRACTOR T .LAXMA REDDY T. LAXMA REDDY BHOOMI PUTRA TRACTOR CENTRE DIVYA AGRO SERVICE AND OTHERS M/S BHAVANI AGENCIES AND OTHERS M/S. PRABHA TRACTOR AGENCIES & ORS M/S. SRI SAI AGRO AGENCIES M/S. SRI CHAKRAVARTHI AUTHO AGENC. SARDARBHAI DALSANGBHAI AND ANT. SRIKANT JADHAV AND OTHERS T. LAXMA REDDY M/S PRABHA TRACTOR AGENC.AND OTR. T. LAXMA REDDY M/S. VIDISHA AGRICULTURE INDUSTRY M/S. GOYAL AND SONS M/S. GOYAL AND SONS M/S. GOYAL AND SONS AND ANOTHER M/S GOYAL AND SONS AND ANOTHER M/S. GOYAL AND SONS AND ANOTHER M/S. KALPATRU KRISHI AND ORS M/S. VIDISHA AGRICULTURE INDUSTRY M/S GOYAL AND SONS AND ANOTHER M/S. PAYAL AUTO MOBILES AND ORS DIVYA AGRO SERVICE AND ORS. Petitioners PUNJAB TRACTOR LTD. PUNJAB TARCTORS LTD. PUNJAB TRACTORS LTD. & ANR. PUNJAB TRACTORS LTD. PUNJAB TRACTORS LTD. PUNJAB TRACTORS LTD PUNJAB TRACTORS LTD. MAHINDRA & MAHINDRA LTD. PUNJAB TRACTOR LIMITED PUNJAB TRACTOR LIMITED &ANR. PUNJAB TRACTOR LIMITED & ANR. PUNJAB TRACTOR LIMITED PUNJAB TRACTORS LIMITED PUNJAB TRACTORS LTD. PUNJAB TRACTORS LTD. PUNJAB TRACTORS LIMITED PUNJAB TRACTORS LIMITED PUNJAB TRACTORS LTD AND ANR. PUNJAB TRACTORS LTD. & ANR. MAHINDRA AND MAHINDRA &ANR. MAHINDRA AND MAHINDRA &ORS. PUNJAB TRACTORS LIMITED &ANR. PUNJAB TRACTORS LTD. MAHINDRA & MAHINDRA LTD MAHINDERA AND MAHINDRA LTD MAHINDRA AND MAHINDRA LTD. MAHINDRA AND MAHINDRA LTD. MAHINDRA AND MAHINDRA MAHINDRA AND MAHINDAR PUNJAB TRACTORS LTD. MAHINDRA AND MAHINDRA LTD. PUNJAB TRADERS LTD. MAHINDRA AND MAHINDRA LTD. Respondents !M/s. M. M. Dar, Advocate Farhat Zia, Advocate Syed Faisal Qadri, Advocate ^Mr. S. Ali Khan, Advocate Honble Mr. Justice J. P. Singh, Judge Date:24/07/2012 : J U D G M E N T :
1] The Punjab Tractors Limited, a Company incorporated andregistered under the Companies Act, 1956, having its registered office at Phase IV, Industrial Area, S.A.S. Nagar-Mohali,Chandigarh, and Mahindra and Mahindra Limited, a Companyincorporated and registered under the Companies Act, 1913, havingits registered office at Gateway Building, AppolloBunder, Mumbai, with which the former is stated to have merged, filed various Complaints before Judicial Magistrates at Srinagar againsttheir Dealers for proceeding against them for dishonour of Chequesthat they are stated to have issued to discharge their existingliability of the money payable for the Tractors, Spare Parts andAccessories which they had purchased on credit from the two Companies, and non-payment of the amount covered thereby, despite Notice. 2] Taking cognizance on the Complaints of the Companies, the herein respondents, the learned Magistrates issued process against the petitioners, the Dealers of the Companies.
3] Aggrieved by the process issued by the learned Magistrates, the petitioners-Dealers have filed these Petitions seeking quashing of the proceedings initiated on the respondents Complaints. 4] The details of the Cheques, the Places of the drawal thereof, the Names of the Collecting Banks, the Places from where Notices were issued by the respondents, and the Places where these were intended to be served, are given hereunder in the following Tabular Form.
S._o Description of the Petitions.
Amount covered by the dishonoured Cheques.
Places at which theCheques were drawn _ame of the Collecting Banks Date of _otice in terms of Clause (b) of Proviso to Section
138. Place from where the notice was issued Places where the notice was intended to be delivered/ served 1. 561-A No. 69/2010 KalpatruKrishi Kendra &Ors. V. Mahindra & Mahindra Ltd.
Cheque No.773383 dtd. 15.01.2009 for Rs.20.00 lac Canara Bank, Court Road Saharanpur Branch J&K Bank Ltd., Air Cargo Branch, Srinagar Notice dated 03.09.2009.
Srinagar Saharanpur (UP),Haridwa r (Uttrakhan) &Panchkula (Haryana).
2. 561-A No.22/2010SaileshSanghvi vs. Punjab Tractor Ltd.
Cheque No.946462 dated 30.06.2009 for Rs.8.00 lac Bank of Baroda, Industrial Estate Branch, Bharuch J&K Bank Ltd., Air Cargo Branch Srinagar.
Notice dated 27.11.2009 Srinagar Ankleshwar (Gujrat).
3. 561-A No.50/2009Bhoomi Putra Centre vs. Punjab Tractors Ltd.
Cheque No. 920801 dated 30.09.2008 for Rs.40,58,000/-.
Punjab National Bank Cuddapah (A.P.) J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 11.12.2008 Srinagar Cuddapah (A.P).
4. 561-A No.58/2009T. Laxma Reddy vs. Punjab Tractor Ltd.
Cheque No.0611568 dated 30.10.2008 for Rs. 70.00 Lac.
State Bank of Hyderabad, Mankammathota Branch Karim Nagar J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 10.01.2009 Srinagar Karimnagar (A.P).
5. 561-A No.57/2009T. Laxma Reddy vs. Punjab Tractor Ltd.
And anr.
Cheque No.912770 dated 20.10.2008 Rs.70.00 lac ICICI Bank Ltd.
Secunderabad branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 31.10.2008 Srinagar Karimnagar (A.P).
6. 561-A No.55/2009M/S bhoomi Putra Tractor Centre vs. Punjab Tractors Ltd.
Cheque No.920804 dated 28.02.2008 for Rs.10.00 lac Punjab National Bank Cuddapah (A.P.) J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 17.06.2008 Srinagar Cuddapah (A.P).
7. 561-A No.49/2009M/S Sri Sai Agro Agencies vs. Punjab Tractors Ltd.
Cheque No.0955212 dated 20.10.2008 for Rs. 70.00 lac.
State Bank of Hyderabad, Mankammathota branch, Karim Nagar(A.P) J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 16.12.2008 Srinagar Mancherial (A.P) 8. 561-A No.123/2009 SrikantJadhav&ors.
Vs. Punjab Tractors Cheque No.0248567 dated 30.11.2008 for Rs.80.00 lac.
Union Bank of India Mehsana (Gujrat) Branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 06.02.2009 Srinagar Mehsana (Gujrat).
9. 561-A No.55/2011T. Laxma Reddy Versus Mahindra and Mahindra Ltd.
Cheque No.619686 dated 15.12.2008 for Rs.50.00 lac.
State Bank of Hyderabad Mankommathota Branch J&K Bank Ltd., Air Cargo, Srinagar Notice dated 28.07.2009 Srinagar Karimnagar (AP).
10. 561-A No.56/2011M/s Prabha Tractor Agencies and ors.
Versus Mahindra and Mahindra Ltd.
Cheque No.206408 dated 20.10.2008 for Rs.22,22,000/-.
State Bank of India Kolar Branch (A.P).
J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 14.02.2009 Srinagar Kolar (A.P).
11. 561-A No.57/2011T. Laxma Reddy Versus Punjab Tractor andors.
Cheque No. 211670 dated 20.10.2008 for Rs.25.00 lac.
State Bank of Hyderabad Mankommathota Branch, Karim Nagar (A.P) J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 15.12.2008 Srinagar Karimnagar (A.P).
12. 561-A No.61 /2010M/s Goyal and sons versus Mahindra and Mahindra Ltd Cheque No. 385250 dated 30.12.2008 for Rs.24,25,000/-
State Bank of India Barnala Branch (Pb).
J&K Bank Ltd., Air Cargo Branch, Srinagar Notice dated 25.07.2009 Srinagar Barnala (Pb) and Panchkula (Haryana).
13. 561-A 25/2010 M/S Aggarwal& Co.
v. Punjab Tractor ltd.
Cheque No.015427 dtd. 28.2.1008 for Rs.20.00 lac UTI Bank Ltd., Jaipur, MoondraBhavan, 3- Ajmer Road, jaipur Branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 25.4.2008 issued from Srinagar Srinagar Tonk and Jaipur (Rajesthan).
14. 561- A No.55/2010M/S R.K.Tractors vs. Punjab Tractors Cheque No.790362 dated 15.09.2008 for Rs.30.00 lac Bank of Maharashtra, Gurgaon Branch Haryana J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 04.11.2008 Srinagar Gurgaon (Haryana).
15. 561-A No.33/2010M/S R.K.Tractor vs. Punjab Tractor Ltd.
Cheque No.790361 dated 28.2.2008 for Rs.15.00 lac.
Bank of Maharashtra Gurgaon (Haryana) Branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 26.04.2008 Srinagar Gurgaon (Haryana).
16. 561-A No.34/2010M/S R.K.Tractors Vs. Punjab Tractors Ltd.
Cehque No.790363 dated 30.09.2008 for Rs.83,46,000/-.
Bank of Maharshtra, Gurgaon Branch Haryana J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 15.12.2008 Srinagar Gurgaon (Haryana).
17. 561-A No.86/2009Divya Agro Service & ors. Vs. Punjab Tractor Ltd.
Cheque No.218809 dated 25.09.2008 for Rs.80.00 lac State Bank of India, BhoothpurDistt.
Mahabubnagar Branch (A.P) J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 08.12.2008 Srinagar Jadcherla (M) Mahabunnaga r (A.P).
18. 561-A No.85/2009 M/S Bhawani Agencies &ors. Vs. Punjab Tractors ltd.
Cheque No.125259 dated 20.10.2008 for Rs.62,70,000/-
Union Bank of India, Nirmal-504106 (A.P.) Branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 13.01.2009 Srinagar Adilabad and Karimnagar (A.P) 19. 561-A No.47/2009 M/s. Sri Chakqravarthi vs. Punjab Tractors Ltd.
Cheque No.242611 dated 15.05.2007 for Rs.10.00 lac Union Bank of India Ongole (A.P.) J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 28.08.2007 Srinagar Ongole (A.P).
21. 561-A No.72/2011Divya Agro Service andors. v. Mahindra and Mahindra Ltd.
Cheque No. 529326 dated 15.12.2008 for Rs.39,20,000/-
State Bank of India Bhoothpur Branch Mahbubnagar (A.P) J&K Bank Ltd., Air Cargo Branch, Srinagar Notice dated 29.06.2009 Srinagar Mahbubnagar (A.P) 22. 561-A No.48/2009 M/S Prabha Tractor Cheque No.206441 dated 15.06.2008 for State Bank of India, Kolar branch (A.P) J&K Bank Ltd.
Residency Road, Notice dated 03.09.2008 Srinagar Kolar (A.P) Agencies &ors. Vs. Punjab Tractor Ltd.
Rs. 20,00,000/- Srinagar.
23. 561-A No.32/2010M/S Payal Automobiles &anr.
vs. Punjab Tractor Ltd. Cheque No.146307 dated 20.10.2008 for Rs.50.00 lac Punjab National Bank Bilaspur (H.P.) Branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 15.12.2008 Srinagar Bilaspur (H.P)
24. 561-A No.35/2010 M/S Payal Automobiles &anr vs. Punjab Tractor Ltd.
Cheque No.146308 dated 30.10.2008 on for Rs.50.00 lac Punjab National Bank Bilaspur (M.P.) Branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 13.01.2009 Srinagar Bilaspur (H.P) 25. 561- A No.5/2010 M/S Sri Balaji Auto Agencies vs. Mahindra & Mahindra Ltd.
Cheque No.732820 dated 30.10.2008 for Rs.49,15,000/-.
State Bank of India, Markapur (A.P.) branch J&K Bank Ltd., Air Cargo Branch, Srinagar Notice dated 19.03.2009 Srinagar Markapur (A.P) 26. 561-A No.28/2010 M/s Goyal and sons & anr. versus Mahindra and Mahindra Ltd.
Cheque No.132277 dated 15.12.2008 for Rs.5.00 lac.
State Bank of Patiala S.C.O 125-126 Sector 17 C, Chandigarh Branch J&K Bank Ltd., Air Cargo Branch, Srinagar Notice dated 02.04.2009 Srinagar Barnala 9Pb) andPanchkula (Haryana) 27. 561-A No.27/2010 M/s Goyal and sons & anr.versus Mahindra and Mahindra Ltd Cheque No. 053232 dated 15.12.2008 Rs.5.00 lac.
State Bank of Patiala 17 C, Chandigarh Branch J&K Bank Ltd. Air Cargo, Srinagar.
Notice dated 07.03.2009 Srinagar Barnala 9Pb) andPanchkula (Haryana) 28. 561-A No.106/2010 M/s Vidisha Agriculture Industries andAnr. Versus Punjab Tractors.Ltd.
Cheque No.004041 dated 30.04.2008 Rs.10.00 lac.
Canara Bank Vidisha Branch (M.P) J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 21.06.2008 Srinagar Vidisha (M.P) 29. 561-A No.68/2010 M/s Payal Automobiles andanr. Versus Punjab Tractors Ltd.
Cheque No. 146306 dated 30.09.2008 for Rs.50.00 lac.
Punjab National Bank, Bilaspur (HP) Branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 11.12.2008 Srinagar Bilaspur (H.P) 30 561-A No.108/2010 M/s Goyal and Sons & anr. versus Mahindra and Mahindra.
Cheque No.774823 dated 30.11.2008 for Rs.20.00 lac.
State Bank of India Barnala Branch J&K Bank Ltd., Air Cargo Branch, Srinagar.
Notice dated 15.06.2009 Srinagar Barnala (Pb) & Panchkula (Haryana) 31. 561-A No.65/2010 M/s Goyal and sons & anr. versus Mahindra and Mahindra Ltd.
Cheque No. 774822 dated 30.11.2008 for Rs.20.00 lac.
State Bank of India Barnala Branch (Pb) J&K Bank Ltd. Air Cargo, Srinagar.
Notice dated 15.06.2009 Srinagar Barnala (Pb) & Panchkula (Haryana) 32. 561-A No.36/2010 M/s Goyal and sons & anr.versus Mahindra and Mahindra Ltd Cheque No. 774824 dated 30.11.2008 for Rs.20.00 lac.
State Bank of India Barnala Branch (Pb) J&K Bank Ltd., Air Cargo Branch, Srinagar Notice dated 15.06.2009 Srinagar Barnala (Pb) & Panchkula (Haryana) 33. 561-A No.107/2010 M/s. Vidisha Agriculture Industry & anr. versus Punjab Tractors Ltd.
Cheque No.592438 dated 20.09.2008 for Rs.24,04,000/-
Canara Bank Vidisha Branch J&K Bank Ltd.
Residency Road, Srinagar.
Notice dated 11.12.2008 Srinagar Vidisha (M.P) 5] The petitioners question the jurisdiction of the learned Magistrates at Srinagar to entertain the respondents Complaints and issue process thereon, when the Transactions had taken place, the Cheques drawn and the places where Notices under Clause (b) of the Proviso to Section 138 of the Negotiable Instruments Act, were sought to be delivered/served, were situated outside the State of Jammu and Kashmir. 6] Responding to the petitioners challenge to the jurisdiction of the learned Magistrates to issue process against the respondents, the respondents learned counsel submitted that the Notice(s) of Demand, in terms of the provisions of Clause
(b) to the Proviso appended to Section 138 of the Negotiable Instruments Act, 1881,the Act, for short, having been issued from Srinagar, the learned Magistrates at Srinagar had the jurisdictional competence to entertain the Complaints and proceed against the petitioners on the respondents Complaints. 7] As common question of law, as to whether or not the Judicial Magistrates at Srinagar had the jurisdiction to entertain the respondents Complaints for proceeding against the petitioners, arose in all these cases, these were heard together and are being disposed of by this common judgment. 8] In view of the submissions made by the learned counsel for the parties at the Bar, the issue that arises for determination is as follows:-
Is it the Place of issuance of notice, in terms of the provisions of Clause (b) of the Proviso to Section 138 of the Act, or the Place where the _otice was intended to be served on the Drawer of the Cheque, that determines the jurisdiction of the Magistrate to issue process on a Complaint for dishonor of Cheque and non-payment of the amount covered thereby within the period prescribed under Section 138 of the Act. 9] The information appearing in Paragraph No.4 (supra) reveals that all the Cheques, on the dishonour whereof the process was issued against the petitioners, were drawn and dishonoured by the Concerned Banks, at places without the State of Jammu and Kashmir. It further appears that although all the Notices in terms of the provisions of Section 138 (b) were issued from Srinagar but these were intended to be served at places located outside the State.
10] In the light of the above admitted factual position as it emerges from the respondents Complaints and the petitioners Petitions, I would proceed to determine the issue in question, and for that purpose would refer to the provisions of Section 138 of the Act in the first instance. Section 138 of the Act reads thus:-
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 amount of money standing to the credit of that account is insufficient to honour 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 offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may extended to two years], 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) thecheque 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 inwriting, 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
(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.] 11] Perusal of the provisions of the above Section reveals that dishonour of any Cheque by a Bank on which it was drawn, for any amount payable for discharge, in whole or in part, of any debt or other liability for insufficiency of funds, or exceeding the arrangement for operation of the account, may give rise to the commission of offence punishable under Section 138 of the Act, Only if,
(i) The Cheque was presented within a period of six months from the date on which it was drawn, or within the period of its validity.
(ii) The payee or the holder in due course of theCheque, makes a demand for the payment of the amount covered by the Cheque 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 thecheque as unpaid; and
(iii) The Drawer of such Cheque fails to make the payment to the Payee or to the holder in due course of the Cheque within fifteen days of the receipt of Notice. 12] In other words, the offence comes into being, on the completion, in succession of the following acts and omissions:-
1) Drawing of Cheque for payment of any amount of money to another person from out of the account maintained with the Bank for discharge of any debt or other liability.
2) Presentation of the Cheque to the Drawee bank.
3) Return of the Cheque by the Drawee bank for insufficiency of amount or its exceeding the amount arranged to be paid from the account.
4) Giving of Notice by the Payee or the Holder of theCheque under Clause (b) of the Proviso to Section 138 to the Drawer for payment of the amount covered by the dishonoured Cheque, within thirty days of the receipt of information on return of the Cheque.
5) Failure of the Drawer to make the payment within fifteen days of the receipt of Notice.
13] In view of the above legal position, the offence under Section 138 of the Act cannot be said to have committed, if one or the other five acts referred to herein above had not taken place.
14] In these circumstances, when the offence is constituted only if five acts referred to herein above take place in succession, the question that would fall for consideration is as to which Court would have the jurisdiction to inquire into and try the offence if the place of occurrence of these acts were located at places falling in the jurisdiction of different local Magistrates. 15] To determine the issue, regard needs to be had to the provisions of law governing the jurisdiction of the Criminal Courts to inquire into and try such type of offences commission whereof was dependent on completion of number of acts or omissions, in that, provisions of the Negotiable Instruments Act do not deal with the issue in question. Reference, therefore, needs to be made to the provisions of Section 182 of the Code of Criminal Procedure, the solitary Provision that deals with such a situation. It reads thus:-
182. Place of inquiry or trial where scene of offence is uncertain or not in one district only; or where offence is continuing, or consists of several acts When it is uncertain in which of several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another; or where an offence is a continuing one; and continues to be committed in more local areas than one; or 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. 16] The above provisions of Section 182 of the Code indicate that the Magistrate(s) of the local area(s) where any one or the other of several acts that constitute an offence, had taken place, Would havethe jurisdiction to inquire into, or try the offence complained against.
17] In view of the above provisions of Section 182, all the Magistrate(s) of the local area(s) within whose jurisdiction any one or the other acts that constitute the commission of offence under Section 138 of the Act, had taken place, would have the jurisdiction to inquire into or try the offence punishable under Section 138. 18] The next and crucial question that needs consideration is as to whether the Magistracy at Srinagar from where the Notice(s) under Clause (b) of the Proviso to Section 138 of the Act were issued, had the jurisdiction to inquire into and try the Complaints of the respondents in view of the provisions of Section 182 of the Code of Criminal Procedure.
19] Although on the first blush, the proposition propounded by the respondents learned counsel that Notice in terms of Clause (b) of the Proviso appended to Section 138 of the Act having been issued from Srinagar, the Magistrates at Srinagar would also have the jurisdiction to initiate process against the petitioners, regardless of the fact that other acts requisite for constitution of offence, had taken place outside the State of Jammu and Kashmir, looked attractive, but on deeper consideration, it appeared that such interpretation of the provisions of Section 182 of the Code was not intended by the Framers of the law, for, it was likely to result in miscarriage of justice, in that, such interpretation was likely to be misused by unscrupulous litigants, as a handle to abuse the process of Criminal Courts, in dragging the Drawer of a Cheque, in the event of its dishonour, for one or the other reason(s), in any part of the Country, on mere issuance of Notice under Section 138 of the Act, from a far off place although neither the transaction between the parties, nor any liability arising therefrom had been conceived, contemplated or taken place in that part of the Country from where the Notice was issued.
20] It, therefore, becomes necessary to appreciate as to whether issuance of Notice alone, without considering its intended Place of receipt/delivery, would amount to one of the acts or omissions, in terms of the provisions of Section 182 of the Code that may be said vesting jurisdiction in the Magistrate of that local area from where the Notice was issued, with the jurisdiction to issue process for commission of offence under Section 138 of the Act.
21] As indicated elsewhere in the judgment, it is the completion of five acts in succession that constituted the office punishable under Section 138 of the Act, so the act of issuance of Notice alone may not, of itself, be sufficient to confer jurisdiction in the Magistrate of the local area from where it was issued, unless the place of its receipt was also within the jurisdiction of the Magistrate.The issuance of Notice under Section 138 of the Act, may not, even otherwise, be of any significance unless it was received or presumed to be received by the drawer of the Cheque, for, the last ingredient requisite to constitute the offence would be complete only if payment covered by the dishonoured Cheque was not made within fifteen days of the receipt of Notice. 22] This apart, in terms of the provisions of Section 182 of the Code of Criminal Procedure, it is the act or omission of the accused and not that of the Complainant alone that may be relevant to determine the place of jurisdiction for inquiry or trial of the offence that comes into being on completion of number of acts. 23] The offence punishable under Section 138 of the Negotiable Instruments Act, cannot, therefore, be conceived unless there was inter alia either a presumption of receipt of Notice under Section 138 of the Act by the Accused or its actual receipt by him, and non-payment of the amount demanded in the Notice within the statutory period prescribed therefor. The issuance of Notice from a place alone would not, therefore, of itself vest jurisdiction in the local Magistrate from whose jurisdiction the Notice was issued, to inquire into or try the offence unless the Notice was received and its payment refused within his jurisdiction. 24] Therefore, keeping in view the provisions of Section 182 of the Code of Criminal Procedure, in terms whereof, it is the place of accuseds act or omission, that may also determine the place of inquiry or trial of an offence commission whereof depends on the happening of various acts or omissions in the jurisdiction of one or other Magistrates, the place from where the notice under Section 138 (b) of the Act was issued, alone may not vest in the Magistrate from whose jurisdiction the _otice was issued, jurisdiction to inquire into and try the offence under Section 138 of the Act unless the place where the notice was intended to be served/delivered, was also within his jurisdiction.
25] The issuance of Notice by the respondents for dishonour of Cheques drawn and presented for payment to the concerned Banks located outside the State of Jammu and Kashmir, from Srinagar would not, therefore, vest any jurisdiction in the Magistrate at Srinagar to entertain the respondents Complaints for initiation of proceedings against the petitioners, when the Notices were intended to be served at places outside the State of Jammu and Kashmir and all other acts too had not taken place in any part of the State of Jammu & Kashmir. 26] The view taken by this Court in SrikantYadhav and anr. v. Punjab Tractors Limited may not be of any help to the respondents, for, the Court had not taken into consideration the provisions of Section 182 of the Code of Criminal Procedure while determining the question of jurisdiction of a Magistrate taking cognizance of the offence punishable under Section 138 of the Act. 27] The view which I have taken in these cases is supported by another judgment of this Court in M/s. Rohit Motors and anr. v. M/s. Punjab Tractors Limited reported as SLJ
93. 28] For all what has been said above, the process issued by the learned Magistrates at Srinagar against the petitioners, on the respondents Complaints, is, therefore, without jurisdiction and illegal. 29] These Petitions, therefore, succeed and are, accordingly, allowed quashing the process issued by the learned Magistrates on respondents Complaints. The Complaints filed by the respondents against the petitioners shall stand dismissed.
( J. P. Singh) Judge Judgment pronounced by me in terms of Rule 138 (3) of the Jammu and Kashmir High Court Rules, 1999.
(MuzaffarHussain Attar) Judge Srinagar 24.07.2012