1 WP-2671-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 2671 OF 2009 Dr. Kiran Laxminarayan Maheshwari ) Aged about 50 years, Indian Inhabitant, ) Occupation Doctor, presently residing at ) Murbad, At post and Taluka Murbad, ) Dist. Thane. ).. Petitioner (Orig. complaiant) Vs. 1. Shri Wilson Matthws D'Souza ) Occupation - Busiess, residing at ) Nanani Bunglow, Village Nirmal, ) Near Gas Godown, Vasai Road, ) Nalasopara, District Thane. ) 2. Shri Anil Kumar Pandey, ) Occupation - Business, ) residing at 7, Vinayak Bhavan, ) Plot No.1, 3rd floor, near Pratap Cinema, ) Kolbad Road, District Thane. ) 3. State of Maharashtra. ).. Respondents (Orig. accused) Mr. Mayur D.Sapkale,Advocate, for the petitioner Mr.Rajesh Datar, Advocate for the respondent Nos. 1 & 2. Mr. V.B.Konde Deshmukh, APP, for the respondent No.3 - State. CORAM: J.H.BHATIA,J. DATE : 24th March, 2011. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard. 2 WP-2671-09.sxw 2. The petitioner is the original complainant. He is a medical practitioner at Murbad, in District Thane. According to him, the accused Nos. 1 and 2, who are the respondents Nos. 1 and 2 before this Court, were responsible for the day-to-day conduct of business of the accused No.1 - Shree Shyam Rolling Mills Pvt.Ltd. situated at Murbad. At the request of the accused persons, the complainant was providing medical services to the workers of the complainant. To clear the medical bills of the workers, the accused issued a cheque drawn on the account of the complainant maintained with Union Bank of India, Thane (W) Branch for payment of Rs.43,000/- to the complainant. The said cheque was deposited by the complainant with Bank of Maharashtra, Branch Murbad for presentation to Union Bank of India, Thane Branch for encashment. The cheque was returned unpaid for want of sufficient funds. Inspite of service of statutory notice making demand of the cheque amount, payment was not made within the stipulated period. Therefore, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act against the company as well as the accused Nos.2 and 3. The Judicial Magistrate issued process against all the three accused persons. That order was challenged by the accused Nos. 2 and 3 in Criminal Revision No.89 of 2000 on several grounds. After hearing the parties, the learned Additional Sessions Judge, Kalyan, allowed the Revision Application and set 3 WP-2671-09.sxw aside the order issuing process. 3. On perusal of the order passed by the Sessions Court, it is clear that the Sessions Court rejected several grounds taken by the accused persons for challenging issuance of process. However, the learned Addl. Sessions Judge was impressed with the contention that the cheque was payable at Union Bank of India, Thane Branch and, therefore, the JMFC, Murbad, had no jurisdiction to issue process. For this purpose, the Addl. Sessions Judge relied upon Ahuja Nandkishore Dongre vs. State of Maharashtra 2007 Cri. L.J.115. I am afraid, the learned Addl. Sessions Judge did not carefully read nor he properly understood the Judgment in Ahuja Dongre (supra). 4. In K.Bhaskaran vs. Sankaran Vaidhyan Balan and Anr. (1999) 7 SCC 510, the Supreme Court observed thus :- "14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure 4 WP-2671-09.sxw of the drawer to make payment within 15 days of the receipt of the notice. 15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below: "178. (a)-(c) xxxx (d) where the offence consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas." 16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done...." In view of this authority, the Court within whose local jurisdiction any of the five different acts are done will have jurisdiction under Section 138 of the Negotiable 5 WP-2671-09.sxw Instruments Act. 5. In the present case, as pointed out above, the complainant as well as the accused No.1 Company are situated at Murbad. At the request of the accused persons, the complainant had rendered medical services to the workers of the cmpany at Murbad. The accused persons were to make payment of the bills of the medical service to the complainant at Murbad. The accused persons issued the cheque for payment of the amount to the complainant at Murbad. Only the cheque was drawn by the accused on the account of the company maintained with Union Bank of India at Thane Branch. The cheque was deposited by the complainant with its banker Bank of Maharashtra, Murbad Branch for presentation to the Union Bank, Thane. The cheque was dishonoured at Thane and intimation of the same was received by the complainant at Murbad. As the complainant is residing and carrying on medical profession at Murbad, naturally, he issued the notice also for payment at Murbad. The accused No.1 company received notice at Murbad. On receipt of the statutory notice, the accused were expected to make payment of the cheque amount to the complainant at Murbad. Thus, out of the five acts described in K. Bhaskaran, only two acts i.e. presentation of the cheque to the drawee bank and return of the cheque unpaid by the drawee bank had taken place at Thane. All other three acts were done at Murbad. Therefore, the Judicial 6 WP-2671-09.sxw Magistrate First Class, Murbad had jurisdiction to entertain the complaint and to issue process. 6. In Ahuja Dongre, the learned Single Judge of this Court (R.C.Chavan, J.) had explained that presentation of the cheque for encashment is always to the drawee bank and not to the bank of the payee with whom the cheque may be deposited for presentation to the drawee bank. In that case, the complainant was the resident of Soyjana, Tal. Manora, District Washim but was serving as a driver with MSRTC at Bhandara. The accused was a resident of Bhandara. Because of the friendly relations, the complainant had advanced certain amount to the accused as a hand loan at Bhandara. The accused had issued a cheque drawn on his account maintained with the Bank at Bhandara. However, the complainant opened an account with Digras Branch of Yavatmal Urban Co- operative Bank and deposited the cheque wth the said Bank at Digras. The cheque was dishonoured by the drawee bank at Bhandara. The notice was issued to the accused by the Advocate for the complainant at Digras because the Advocate was situated at Digras. None of the parties to the case were situated at Digras. As per the notice, the payment was to be made to the complainant, who was residing at Soyjana and, therefore, payment was to be made to the complainant at Soyjana. In these circumstances, the learned Single Judge of this Court held that merely 7 WP-2671-09.sxw because the notice was issued from Digras, the Court at Digras could not get jurisdiction. It appears that the learned Addl. Sessions Judge allowed the Revision Application by applying Ahuja Dongre without understanding the facts and the law laid down in that case and thus committed an error in setting aside the order passed by the Magistrate to issue process. 7. For the aforesaid reasons, the petition is allowed. The impugned order passed by the Addl. Sessions Judge, Kalyan, is hereby set aside and the order passed by the Magistrate to issue process is hereby restored. The accused persons shall appear before the J.M.F.C., Murbad on 25.4.2011 and the trial Court shall expedite the hearing and dispose of the matter as early as possible. Rule made absolute accordingly. (J.H.BHATIA,J.)