1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4337 OF 2008 1. Shah and Modi Developers (Registered Partnership Firm) 2. Mr. Niranjan Shah & Ors. ..... Applicants. V/s The State of Maharashtra & Anr. ..... Respondents. ---- Mr. Tejas Vora with Mr. Girish Vora for the applicants. Mr. S.K. Shinde for respondent No.2. Mr. Rajesh More, APP for the State. ---- CORAM : V.M. KANADE, J. DATE : 1st April, 2009 P.C.:- 1. Applicants have filed this application under section 407 read with sections 177 and 178 of the Criminal Procedure Code, seeking transfer of case No. 8437 of 2006 which is pending in the Court of J.M.F.C., 5th Court at Nasik to the Court of Metropolitan Magistrate, Andheri or Borivali at Mumbai. 2 2. Brief facts are as under:- 3. A complaint was filed by respondent No.2 under section 138 of the Negotiable Instruments Act on account of dishonor of cheques given by the applicants herein. Few of the admitted facts are that the applicants were permanent residents residing at Mumbai and carrying on their business at Mumbai. Respondent No.2, in a meeting held in Mumbai, showed his willingness to invest some amount in the project of construction of the applicants, which was in progress at Kandivali, Mumbai. Accordingly, he paid a sum of Rs 8 lacs to the applicants. Applicants paid interest for some time. However, on account of financial constraints, they could not pay interest. It is the case of respondent No.2 that two cheques were given by the applicants; one for Rs 5,00,000/- and the other for Rs 3,00,000/- drawn on Malad Sahakar Bank Ltd. Kandivali, Mumbai. It is the case of respondent No.2 that, by that time, he had shifted to Nasik and he deposited the said cheques at Nasik which were returned with remark “account closed”. Legal notice was sent by respondent No.2 to the applicants through his advocate at Nasik which was received by the applicants at Mumbai. A reply was also given by the applicants, denying the allegations made therein and alleging that the said cheques were given as and by way of security. Respondent No.2 filed a complaint under section 138 of the Negotiable Instruments Act before the J.M.F.C, 5th Court at Nasik, alleging that the notice had been sent by him from Nasik and the cheques were deposited by him at Nasik and, therefore, the Nasik Court has jurisdiction to entertain the complaint. 3 4. Counsel appearing on behalf of the applicants submitted that applicants are very old and the said complaint was deliberately filed at Nasik, though it was maintainable in Mumbai since the cause of action has entirely arisen in Mumbai. He submitted that merely because notice was issued from Nasik or that the cheques were deposited at Nasik, would not give rise to cause of action at Nasik. He submitted that this complaint is filed merely to harass the applicants who are old and are suffering from various ailments. In support of the said submissions, he relied upon the judgment of the Apex Court in the case of M/s Harman Electronics (P) Ltd. & Anr. vs. M/s. National Panasonic India Ltd., reported in 2009(1) ALL MR 479. He also relied upon the judgment of the learned Single Judge of this Court in the case of Dipti Kumar Mohanty vs. M/s Videocon Industries Ltd. decided by the learned Single Judge of this Court by judgment dated 17th February, 2009 in Criminal Writ Petition Nos. 497 of 2008 with Criminal Revision Application No.250 of 2007 and Criminal Revision Application No.251 of 2007. He also relied upon the judgment of the learned Single Judge of this Court in the case of Ahuja Nandkishore Dongre vs. State of Maharashtra & anr. reported in 2007(1) Bom. C.R. (Cri.) 1031. 5. Counsel appearing on be behalf of respondent No.2, on the other hand, relied upon the judgment of the Apex Court in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan and another reported in (1999) 7 SCC 510. He submitted that the Supreme Court has enumerated five instances wherein the cause of action could arise and that the Supreme Court has stated that the case could be instituted at 4 any one of these places. 6. I have heard both the Counsel at length. 7. In my view, submissions made by the learned Counsel appearing for the applicants will have to be accepted. In the case of M/s Harman Electronics (P) Ltd (supra), the Apex Court has held that the issuance of notice would not by itself give rise to cause of action. The Apex Court has laid down the said principle after taking into consideration the judgment of the Apex Court in K. Bhaskaran' case (supra) The learned Single Judge of this Court also in the case of Dipti Kumar Mohanty (supra) as relied upon the said judgment and has also relied upon the judgment of the learned Single Judge of this Court in the case of Ahuja Nandkishore Dongre (supra) and has held that mere issuance of notice from a particular place or deposit of cheques by the accused at that place would not by itself give rise to the cause of action to file complaint in the Court situated in the said City. 8. In the case of Ahuja Nandkishore Dongre (supra), the learned Single Judge of this Court has, after referring to the judgment in K. Bhaskaran's case has come to the conclusion that issuance of notice from a particular place by itself would not give rise to cause of action at that place. In my view, ratio of the said judgment in the case of M/s Harman Electronics (P) Ltd. (supra) which is followed in Dipti Kumar Mohanty (supra) and Ahuja Nandkishore Dongre (supra), clearly applies to the facts of the present case. 5 9. In the result, the following order is passed:- O R D E R Application is allowed. Papers and proceedings in respect of case No.8437 of 2006 pending in the Court of J.M.F.C. 5th Court at Nasik be transferred to the Court of Metropolitan Magistrate at Borivali, Mumbai within four weeks from today. Parties to appear before the Court of Metropolitan Magistrate, Borivali at Mumbai on 8th June 2009. The hearing of the trial is expedited. The Trial Court to decide the case, as expeditiously as possible and, in any case, within three months from 8th June, 2009. If adjournment is sought by the accused, the Trial Court shall consider whether the application for adjournment is genuine or is made only for the purpose of protracting the trial. If it is noticed that unnecessary adjournment is sought, the application for adjournment may be rejected. The applicants shall co- operate with the Trial Court. If possible, the Trial Court shall decide the case on day-to-day basis. The evidence already recorded by the J.M.F.C. 5th Court at Nasik be treated as part of the evidence of the case and the Court of Metropolitan Magistrate at Borivali, Mumbai shall proceed to record the evidence from that stage onwards. The application is dispose of. (V.M. KANADE, J.)