Crl. Misc. No. M-23908 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-23908 of 2010 Date of Decision: August 18, 2010 Sat Narain …..Petitioner Vs. Madan Lal …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Ashish Rawal, Advocate for the petitioner. -.- M.M.S. BEDI, J. The petitioner is resident of Delhi. He has been summoned in a complaint filed under Section 138 of the Negotiable Instruments Act, (for short ‘the Act’) to face trial before the Court of Judicial Magistrate Ist Class, Jalandhar. Petitioner claims that the Court at Jalandhar has not any jurisdiction to summon the petitioner or to declare him a proclaimed offender. It has been contended that complainant annexure P-1 had been moved regarding a cheque No. 456525 dated January 15, 2008 amounting to Crl. Misc. No. M-23908 of 2010 [2] Rs.50000/- drawn on Bank of India, Janakpuri Branch, Community Centre, New Delhi, hereinafter referred to as drawee bank, issued from Delhi in favour of respondent Mandan Lal for the work done by him at Chandigarh and Amritsar for the petitioner. The said cheque was deposited by complainant- respondent with State Bank of India, Harbans Nagar, Jalandhar, the collecting bank for presenting the same to the drawee bank at Delhi The cheque was dishonoured by the drawer bank at Delhi in January 2008, due to the request made by the drawer i.e. petitioner for stop payment. It is claimed that the petitioner did not have any legally enforceable debt or liability to the respondent. The quashing of the complaint has been prayed for on the ground of want of jurisdiction by the Court at Jalandhar as neither any work was done at Jalandhar by the respondent for the petitioner nor the Courts at Jalandhar have any territorial jurisdiction to interfere the complaint. The cheque was issued from Delhi and was dishonoured by the drawee bank at Delhi. The statutory notice was also sent to Delhi and no cause of action has contemplated under Section 138 of the Act within the jurisdiction of Court at Jalandhar. The petitioner placed reliance on Harman Electronics Private Limited and another Vs. National Panasonic India Private Limited, (2009) 1 SCC 720. He also relied on Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd., (2001) 3 SCC 609 to contend that clause A to the proviso of Section 138 of the Act would mean that the drawee bank on which the cheque is drawn and not of the bankers where the cheque is presented for clearance including the bank of the payee, in whose favour the cheque is issued. Counsel relies upon the Crl. Misc. No. M-23908 of 2010 [3] observations in paras 8 and 9 of the judgment in Shri Ishar Alloy’s case (supra) which reads as follows:- “8. Section 138 provides that where any cheque drawn by 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 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 punishable with imprisonment as prescribed therein subject to the conditions mentioned in clauses (a), (b) and (c) of the proviso. Section 3 of the Act defines the "banker" to include any person acting as a banker and any post office saving bank. Section 72 of the Act provides that a cheque must, in order to charge the drawer, be presented at the bank upon which it is drawn before the relations between the drawer and his banker has been altered to the prejudice of the drawer. 9. The use of the words "a bank" and "the bank" in the Section is indicator of the intention of the Legislature. Crl. Misc. No. M-23908 of 2010 [4] The former is indirect article and the latter is pre-fixed by direct article. If the Legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is pre-fixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is pre-fixed by the definite article "the". The same Section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns, with a specifying of particularizing effect opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote particular thing or a person. "The" would, therefore, refer implicitly to a specified bank and not any bank. "The bank" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee-bank Crl. Misc. No. M-23908 of 2010 [5] on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.” He also referred to the judgment in Som Sughand Industries Ltd. And another Vs. UOI and another, 2010 (2) RCR (Crl.) 608, a judgment of Delhi High Court. I have considered the contentions of counsel for the petitioner. It is an admitted fact that the petitioner had issued a cheque of State Bank of India of Community Center, Janakpuri Branch, New Delhi for a sum of Rs.50000/-. The complainant- respondent is a resident of Jalandhar. He holds an account in a Bank at Jalandhar and the cheque was presented with the bankers of the complainant i.e. State Bank of India, Harbans Nagar, Jalandhar. The said cheque was sent for clearance and collection to the bankers of the petitioner at Delhi. The cheque was dishonoured and the bankers of the complainant informed him vide memo dated May 23, 2008 of dishonouring of the cheque by the bankers of the accused. The bankers of the complainant- respondent returned the original cheque and the memo to the complainant at Jalandhar. The letter of intimation of State Bank of India, Harbans Nagar, Jalandhar dated May 23, 2008 had been attached with the complaint. The complainant- respondent demanded the payment of the dishonoured cheque by sending him a registered notice through his Advocate from Jalandhar, but despite promise by the petitioner, the amount of the cheque was not paid to the complainant. The reliance of the Crl. Misc. No. M-23908 of 2010 [6] petitioner on the judgment in Harman Electronics case (supra) is misplaced as in the said case, the appellant Harman Electronics Private Limited was carrying on the business at Chandigarh. The cheque was issued and dishonoured in Chandigarh. Notice was sent by the complainant from Delhi. The complaint petition was filed at Delhi. The notice was sent by the holder of the cheque from Delhi. It was held that the Court at Delhi will not have jurisdiction to try the case merely because the notice had been sent from Delhi. In the said judgment discussing the scope of Section 177 Cr.P.C. and the exceptional provisions of Sections 178 and 179 Cr.P.C., it was held that place where offence has been committed plays an important role. In Harman Electronics case (supra), the complainant and the accused had entered into the business transaction. The accused was resident of Chandigarh. He carried on the business in Chandigarh. The cheque was issued at Chandigarh. The complainant also had a Branch office at Chandigarh although his head office was in Delhi. The cheque was presented at Chandigarh. However, the cheque was sent for collection to Delhi but it was dishonoured also at Chandigarh. The complainant had issued notice to the accused from Delhi to make the payment. The notice was also served on the accused at Chandigarh, as such it was held that the Courts at Chandigarh would have the jurisdiction. The reliance of counsel for the petitioner on Shri Ishar Alloy’s case (supra) is also misplaced. He had referred to paras 8 and 9 which has been reproduced hereinabove but did not refer to para 10 which reads as follows:- Crl. Misc. No. M-23908 of 2010 [7] “10. It, however, does not mean that the cheque is always to be presented to the drawer’s bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to the (C) bank. The non- presentation of the cheque to the drawee-bank within the period specified in the Section would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Sections 3, 72 and Crl. Misc. No. M-23908 of 2010 [8] 138 of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee.” If paras 8 and 9 mentioned above are read alongwith para 10 which is reproduced hereinabove, it appears that there is no rule of law laid down by the Apex Court that the cheque in the present case could not have been presented at payees bank at Jalandhar from where it was sent to the drawee bank which in the present case is Delhi. The cheque was not honoured by the drawee bank and intimation was sent to the payee bank. The complainant- respondent had received the intimation regarding dishonouring of the cheque by bankers where the cheque had been deposited for clearance. Neither the provisions of Sections 177, 178 or 179 Cr.P.C. prohibit the filing of compliant at Jalandhar nor any law had been laid down in Harman Electronics case (supra) that the Courts in whose territorial jurisdiction the payees bank is situated will not have jurisdiction to entertain the complaint. Merely because the petitioner has issued a cheque of Delhi Bank (drawee bank) which had sent the communication regarding dishonouring of cheque to the payee bank at Jalandhar will not debar the adjudication of the complaint at Jalandhar from where the notice Crl. Misc. No. M-23908 of 2010 [9] had been issued. In the judgment cited by counsel for the petitioner of Delhi High Court of Som Sugandh Industries case (supra), the petitioner had challenged the order passed by the Metropolitan Magistrate taking cognizance of the complaint filed by respondents against them under Section 138 of the Negotiable Instruments Act on the ground that Delhi Courts did not have jurisdiction to entertain and try the complaints as the petitioners were carrying on the business in Kundli in District Sonepat; cheques in question were issued in Haryana; cheques were drawn at Punjab National Bank, HSIDC Complex, Kundli (Haryana), and the notice of demand was sent to the petitioners in Haryana. However, the respondent claimed that the office of Commissionerate, Central Excise was situated in the jurisdiction of Delhi and notice demanding the amount of the cheque was also issued from Delhi. The Delhi High Court held that the compliant filed before the Metropolitan Magistrate, Delhi had to be returned to the complainant to be presented in the Court of CJM, Sonepat. The facts and circumstances of Som Sugandh Industries case (supra) are absolutely different and the judgment does not, in any manner, help the petitioner. In view of above circumstances, the petition is dismissed and it is held that the Courts at Jalandhar has got jurisdiction to take the cognizance as the cheque had been presented at Jalandhar for clearance although the drawee bank is situated in Delhi. The drawee bank had sent the communication to the bankers of the complainant at Jalandhar and the complainant who is resident of Jalandhar had received the communication at Crl. Misc. No. M-23908 of 2010 [10] Jalandhar. Even the notice was also issued from Jalandhar. The jurisdiction of Courts at Jalandhar was also not challenged by filing any reply to the notice under Section 138 of the Negotiable Instruments Act sent by the respondent to the petitioner from Jalandhar. August 18, 2010 (M.M.S.BEDI) sanjay JUDGE