IN THE HIGH COURT OF JUDICATURE IN CHHATTISGARH ATBILASPUR Cr.M.P. 72010 Petitioner E-. Accused ^yf^ ...-".' ti^^p^^*" ^^.sss-". ^.-^^^^ ^^ Respondent Complainant y^ Darshanlal Jain S/o Bhagmal Jain aged about 80 years, resident of C17 Shakti Nagar Extension AshokVihar Phase II Delhi52. v/s K. K. Bansal agedabout 76 years S/o Late Tekchand Bansat, Resident of MIG 09, Vaishali Nagar, Bhilai, Distt. Durg (C.G.) Petition under Section 482 of the Criminal ProcedureCode fpr guaslfinq the order dated 14/5/2010 and order dt. 4/6/2010 fias^sed by the Sessjon-s' Judge, Dum. il^^, The petitioner most respectfullysubmits as under:- ^^ \ ^Z^^s'^?^^ •• ";isa.;-.->.,sii!>'' HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Petitioner/Accused Respondent Complainant Cr.M.P.NO.633/2010 Darshanlal Jain Versus K. K. Bansal (Petition under Section 482 ofthe Criminal Procedure Code, 1973) Present: - Shri Manoj Paranjpe, counsel for the petitioner. Shri Shrawan Agrawal, counsel forthe respondent. O R D E R (Pronounced on -^-/11/2011) By this petition under Section 482 of the Criminal Procedure Code, 1973 (In short "the Code"), the petitioner has prayed for quashing order dated 14-05-2010 passed by the Sessions Judge, Durg in Criminal Revision No.52 of 2010 (Annexure P-4), by which, order dated 02-02-2010 passed by the Judicial Magistrate First Class, Durg in Criminal Case No.832 of 2008, has been affirmed. Vide order dated 02-02-2010, the learned Magistrate held that the Court at Durg would have jurisdiction to try the complaint filed under Section 138 of the Negotiable Instrument Act (henceforth "the Act") and has further ordered issuance of non-bailable warrant of arrest for the appearance of the petitioner. The petitioner has also prayed for quashing of order dated 04-06-2008 (Annexure P-8) passed by the Sessions Judge, Durg, by which, Criminal Revision No.74 of 2010 to the extent it has affirmed the order of the Magistrate rejecting application for exemption from appearance. Prayer has also been made to hold that the Court of Judicial Magistrate First Class at Durg, had no jurisdiction to try the complaint. The petitioner has also prayed for quashing of ^'"^S'^ik. .^:".<-aft, "»».,, /£Z% 1. I l' 'ae9 !. <&.. 'fSKMf".^' order of issuance of non-bailable warrant against the petitioner and for grant of exemption from personal appearance. 2. The relevant facts, in brief, giving rise to the instant petition are that the respondent filed a complaint against the petitioner in the Court of Judicial Magistrate First Class, Durg for alleged commission of offence under Section 138 ofthe Act. In the complairt, it has been alleged that on 18-07-2006, the petitioner had obtained loan of Rs.5,50,000/- from the respondent-complainant and for discharge of the liability of repayment of loan, the petitioner-accused handed over to the complainant on 18-07-2006, a A/c payee post dated cheuqe bearing dated 17-05-2008 for a sum of Rs.5,50,000/-. The said cheque was drawn on petitioner's Saving Bank Account No. 1067 in Punjab National Bank, Shakti Nagar, New Delhi. The said cheque was deposited by the complainant on 19-05- 2008 in his Saving Account No.948 at Dena Bank Branch, New Khursipar, Bhilai for clearing and payment, but the cheuqe wais returned without payment along with memo dated 11-06-2008 and memo dated 03-06-2008 of Punjab National Bank, Delhi, with the endorsement that the amount has not been recovered and it be again presented, meaning thereby that the cheque was returned unpaid on the ground of insufficient fund in the account of the accused. A notice of demand dated 13-06-2008 was sent by the complainant to the petitioner-accused by registered post with acknowledgement due. It was further averred that the notice was received on 18-06-2008, but the payment was not made within a period of 15 days. It was further averred in the complaint that the complainant had received the dishonoured cheque from Dena Bank, New Khursipar, Bhilai, which is within the territorial jurisdiction of Police Station Khursipar, Bhilai, and therefore, the Magistrate at Durg has territorial jurisdiction to take cognizance of the complaint. Vide order dated 21-08-2008, the learned Magistrate took i 'Sh. •g^ •eiiSffi'.^ E ^-"<?" ^-.x^^ cognizance by registering offence under Section 138of the Act and directed issuance of nofice to the petitioner-accused for his appearance. 3. Though, no specific averments have been made in the petition, during the course of arguments, it was stated and the learned counsel for the petitioner has also placed before the Court a copy of petition under Section 406 of the Cr.P.C. filed by fhe petitioner before the Supreme Court of India for transfer of the case, in which, initially an interim order was passed on 12-01-2009 staying further proceedings in the complaint case. The learned Magistrate in its order recorded that the bailable warrant has been returned without service of notice with the endorsement that there is an interim order passed by the Supreme Court on 12-01-2009. Thereafter, another bailable warrant was issued along with the memo stating that the order dated 12-01-2009 passed by the Supreme Court was not received. Thereafter, on subsequent dates, further proceedings in this case were kept pending awaiting receipt of order passed by the Supreme Court. In order dated 24-12-2009, it was recorded that the certified copy of order dated 27-11-2009 passed by the Supreme Court in Transfer Petition (Criminal)No.1/2009 has been received, and by that order the petition flled by the petitioner has been dismissed. Learned counsel for the parties have not disputed this fact that though, initially an interim order was passed on 12-01-2009 in the Transfer Petition filed by the petitioner, the said petition was later on dismissed by the Supreme Court on 27-11-2009. 4. Vide order dated 02-02-2010, the learned Magistrate dismissed the petitioner's application purporting to be one under Section-177of the Code and also prayer for exemption from personat appearance. The learned Magistrate held that it had jurisdiction to take cognizance of the complaint, as the disputed cheuqe was received back by the complainant from Dena Bank, New Khursipar, "*.'^ '^..^ .y Bhilai, which is situated within the territorial jurisdiction of the Court, where the complaint has been filed. It was also held that the cause of action for the complaint is not based on giving of notice. The Magistrate further directed issuance of warrant of arrest. Aggrieved by order dated 02-02-2010, a revision was preferred, which has also been dismissed vide impugned order dated 14-05-2010. The petitioner moved an application for supply of copy of complaint along with the documents from the complainant and application for exemption from personal appearance before the Magistrate. The learned Magistrate giving reference to the order dated 14-05-2010 passed by the Sessions Judge, which affirmed order dated 02-02-2010, rejected the application for grant of exemption from personal appearance as also prayer for supply of documents. Another revision was filed, which was registered as Criminal Revision No.74 of 2010. The learned Sessions Judge partly allowed the revision. In so far as rejection of application for exemption from personal appearance is concerned, order dated 20-05-2010 was confirmed. However, the learned Revisional Court partly allowed the revision with a direction that the copy of complaint and the documents be supplied to the petitioner-accused. 5. The sole contention raised by learned counsel for the petitioner before this Court is that as the cheque was drawn on Punjab National Bank, Shakti Nagar, New Delhi, which was presented for encashment through Dena Bank, Bhilai and dishonoured by Punjab National Bank, Delhi which returned to Dena Bank, Bhilai, agent of the complainant at New Delhi, mere sending of notice from Durg, would not give rise to cause of action for filing complaint at Durg and that by itself would not confer any jurisdiction to the Court at Durg. It is also submitted that the petitioner-accused is aged 80 years and suffering from heart ailments, and therefore, unable to undertake long distance, therefore, his application for exemption from personal appearance ought to be allowed. In support of his 1 '•^^.^"•y. 'fy-^^..^;- contention, learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the case of Harma.n Electronics Private Limited and Another versus National Panusonic India Private Lintited, (2009) I Supreme Court Cases 720. 6. On the other hand, learned counsel appearing for the respondent contended that in view of the judgment of the Supreme Court in the case of K. Bhciskaran versus Sankaran Vatdhyan Baloin and Another, (1999) 7 Supreme Court Cases 510 and Smt. Shamshad Begum v. B. Mohummed, 2009 Cr.L.J. 1304, the Court at the place, wherefrom the notice was given would also have territorial jurisdiction to try the case. 7. The issue, which arises for consideration in the present case, is whether the Court at Durg, wherefrom demand notice was given by the complainant, has jurisdiction to try the case. 8. In the case of K. Bhaskaran (supra), the Supreme Court held in paras 14, 15, &16ofitsorder:- 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 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 i ^t t%^© I, '—••-" localities. But a concatenation of all the above five is a sine qua non forthe completion ofthe 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) * (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, ifthe 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 temtorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act." 9. Relying upon the aforesaid decision, in a subsequent decision in the case of Smt. Shamshad Begum (supra), the Supreme Court upheld the order of the High Court. In the aforesaid case, the learned Single Judge of the Karnataka High Court held that one of the components of the offences was giving notice in writing to the drawer of the cheque demanding payment of cheque amount. The said action took place within the Manglore jurisdiction, and therefore, the Manglore Court had jurisdiction. The aforesaid judgment of the Supreme Court in the case of Sm(. Shamshad Begum (supra) affirming the order of the High Court, was passed relying upon the earlier decision in the case of K. Bhaskaran (supra). •f— \ 10. However, in a subsequent decision of the Supreme Court in the case of Harman Electronics Private Limited and Another (supra), the Supreme Court examined its earlier decision in the case of K. Bhaskaran (supra), while considering sole question as to whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Act. The factual background, in which, aforesaid question was taken up for consideration, was noted: 12. "The complaint petition does not show that the cheque was presented at Delhi. It is absolutely silent in that regard. The facility for collection of the cheque admittedly was available at Chandigarh and the said facility was availed of. The certificate dated 24-6-2003, which was not produced before the learned court taking cognizance, even if taken into consideration does not show that the cheque was presented at the Delhi branch of Citibank. We, therefore, have no other option but to presume that the cheque was presented at Chandigarh. Indisputably, the dishonour of the cheque also took place at Chandigarh." 11. The Supreme Court then proceeded to hold:- 13. "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 ofthe 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 provisos (a), (b] and (c) appended to Section 138 of the Negotiable Instruments Act are 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 that 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 ofthe notice would." 12. Relying upon the constitutional Bench judgment of the Supreme Court in the case of Ste(e of Punjab v. Amar Singh Harika, AIR 1966 SC 1313, it was held that for constituting offence under Section 138 of the Act, the notice must be received by the accused. It was held that it may be deemed to have been received in certain situations and further that the word "communicate" inter alia means "to make known, inform, convey etc. 13. The provisions contained in Section 177 ofthe Code were also examined. In the aforesaid decision, the Supreme Court emphasized with regard to the aspect of the service of notice and failure on the part of the accused to pay the demand amount within a period of 15 days and that giving of notice cannot have any precedent over the service, in following words- 20. "Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A court derives a jurisdiction only when the cause of action arose within its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and y-'" -^~-. '.••s:\~"'-. '•''5P'"^~'?S'\ • '[•'' commission of a part of the offence. While issuance of a notice by the holder ofa negotiable instrument is necessary, service thereof is also imperative. Only on a service of 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. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter that in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd.2. emphasis has been laid on service of notice." 'v It was finally concluded that the Delhi High Court has no jurisdiction to try the case. 14. In thepresent case, what has been averred in the complaint with regard to notes of demand and receipt of the notice is that the petitioner-accused received the notice, which was sent with registered postacknowledgment due and the said notice was received by the petitioner-accused on 18-06-2008 and even after expiry of 15 days from that date, the amount under the dishonoured cheque was not paid. 15. In view of the aforesaid decision of the Supreme Court in the case of Hannan Electronics Private Limited and Another (supra), giving of notice cannot have any precedent over service, and therefore, the Court at New Delhi would have jurisdiction and not at Durg. The submission of learned counsel for the respondent based on the judgment of the Supreme Court in the case of K. Bhaskaran (supra) and Smf. Shamshad Begum (supra) cannot be accepted as the judgment in the case of K. Bhaskaran (supra) has been referred to by the Supreme Court in the subsequent decision of Harman Electronics Private Limited and Another (supra). The judgment in the case of Sm(. Shamshad Begum (supra) was passed relying upon the decision in the case of i" ft'isg' '%s. ^. '•-^.. •^•^ 10 K. Bhaskaran (supra). In view of the aforesaid discussion and the facts and circumstances of the present case as noted above, judgment of the Supreme Court in the case of Harman Electronics Private Limited and another (supra) would be applicable in the present case. In that view of the matter, 1 have to hold that the Court at Durg had no jurisdiction to try the case, but the Court at Delhi, within whose territorial jurisdiction Punjab National Bank is situated, from where the cheque was dishonoured, would have jurisdiction to take cognizance of the complaint, if any, filed. The learned Revisional Court has dismissed the revision by erroneously assuming that present being a case of conflict between the two decisions of the Supreme Court, ignoring that the decision in the case of K. Bhaskaran (supra) was referred to and explained by the Supreme Court in a subsequent judgment in the case of Harman Electronics Private Limited and another (supra) and that, judgment in the case of Sm(. Shamshad Begum (supra) was passed relying upon the judgment in the case of K. Bhaskaran (supra). Therefore, the order of learned Sessions Judge, Durg cannot be sustained and is liable to be and is hereby set aside. The petition is accordingly allowed. The complaint filed before the Judicial Magistrate First Class at Durg is quashed. The respondent-complainant would be at liberty to file complaint beTore the Court of competentjurisdiction in accordance with law. Sd/- ManindraMohan Shrivastava Tumane