Indian Kanoon - Search engine for Indian Law

19. As far as the above jurisdictional points No. 4 & 5 laid in "K. Bhaskaran's" case (supra) are concerned, the Supreme Court had the occasion to explicate the primal tenor, essence & upshot of the said facts qua the territorial jurisdiction of the court in its recent pronouncement delivered in the case of "Harman Electronics (P) Ltd. & Anr. v. M/s National Panasonic India Ltd"

reported as 2009(1) RCR (Criminal) 458.

22.09.2009 Page No. 19 of 68 Pages C/C No. 910/01/07 Hon'ble Mr. Justice S.B. Sinha who spoke for the bench while delivering the aforesaid celebrated judicial decision, declared that the issuance of the statutory notice by the holder of the cheque is not the sole touchstone for judging the question of territorial jurisdiction in respect of the offence under Section 138 of the Act and explained that rather it is the service of the said statutory notice which is more imperative. His Lordship proceeded on to observe that it is service of the statutory notice and the subsequent failure of the accused to pay the cheque amount within a period of 15 days of its receipt thereof which results in the completion of the offence under Section 138 of the Act, since giving of the notice cannot be said to have any precedence over its service. The above said latest dictum in "Harman Electronics" case (supra) gives a new dimension to the definition of the 5 jurisdictional places governing the territorial jurisdiction of the court trying or inquiring into the offence under Section 138 of the Act, as was previously announced in "K. Bhaskaran's" case (supra). I cannot afford to locomote any farther without reproducing the pertinent excerpts of this recent judgment of far reaching consequences, which I do so 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 22.09.2009 Page No. 20 of 68 Pages C/C No. 910/01/07 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 of action for filing a complaint. As it is only on receipt of 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.

22.09.2009 Page No. 21 of 68 Pages C/C No. 910/01/07

20. Thus the law qua the statutory notice under Section 138, as to be enforced after the delivery of the Apex Court's judgment in "Harman Electronics" case (supra), would be that mere issuance of statutory notice under Section 138 of the Act from Delhi would not confer territorial jurisdiction on the courts at Delhi either to inquire into or try the offence under Section 138 of the Act, but the court within whose local limits, the statutory notice was, actually or presumably received by the accused, would be the court which will have the jurisdiction to try or inquire into the offence under Section 138 of the Act as per point no. 4 & 5 out of the five places narrated earlier in " K. Bhaskaran's" case (supra).

13. It needs no elaboration that when two decisions of the coordinate benches of the Apex Court are cited, then the later one prevails. The decision of the Apex Court in the case of 22.09.2009 Page No. 66 of 68 Pages C/C No. 910/01/07 Smt. Shamshad Begum (Supra) relied upon by the Petitioner is of 3 rd November, 2008; whereas, the Apex Court decision in th the case of M/s Harman Electronics (supra) is of 12 December, 2008. I find myself unable to agree with the reasoning in decision rendered by a single Bench of the High Court of Madhya Pradesh in the case of Manjul Vs. Wasim (Supra), as the latest decision of the Apex Court in the case of M/s. Harman Electronics (Supra) cannot be brushed aside by simply observing that it was rendered in a different context and by relying upon the decision in the case of K. Bhaskaran (Supra)."