1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(MAIN) NOS. 84, 85, 86, 87, 88, 89, 90, 91 AND 92 OF 2009 Mr. Helcino Aleixo Fernandes, son of late Jose Caetano Fernandes, major, married, businessman, resident of H. No. 326, Godinho Vaddo, Majorda, Salcete, Goa. ... Applicant versus Mr. Milind Madhukar Bhende, son of Madhukar Bhende, major, married, businessman, resident of H. No.156-D-1, Ansabhat, Mapusa, North-Goa, Goa. ... Respondent Shri J. E. Coelho Pereira, Senior Advocate with Shri S. Karpe, Advocate for the Applicant. Shri Arun Bras De Sa, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 22ND APRIL, 2009. ORAL ORDER The question is one of jurisdiction to try an offence under Section 138 of the Negotiable Instruments Act, 1881. 2 2. The undisputed facts are as follows. The Complainant is a businessman residing at Majorda within the jurisdiction of the J.M.F.C. at Margao in South Goa district where the complaints were filed. The allegation in the complaint was that the accused had collected a hand loan from the Complainant. There is no mention of the place where it was paid by the Complainant to the accused. The accused is a resident of Mapusa within the jurisdiction of J.M.F.C., Mapusa. Towards the repayment of the said loan the cheque/s in question were issued by the accused drawn on his account in HDFC Bank Ltd. at Panaji within the jurisdiction of J.M.F.C., Panaji in North Goa district. The Complainant deposited the said cheque/s into his account with Corporation Bank at Utorda, and, when sent for collection by the said Bank were returned by the drawee Bank with a remark that the funds were insufficient. The Complainant sent a demand notice dated 30-12-2005 to the address of the accused demanding payment within fifteen days. The notice was received by the accused but it was not complied with and so the complaint/s were filed. The Complainant averred in the complaint that the bounced cheque/s were sent for clearance by the Complainant through the Corporation Bank, Utorda, Goa, and as such the Court(J.M.F.C., Margao) had jurisdiction to entertain and dispose off the present complaint/s. 3. The Applicant/Accused on being served with summons filed an application/s contending that no cause of action had arisen within the jurisdiction 3 of the learned J.M.F.C., Margao. The learned trial Court dismissed such application/s. However, the learned Sessions Judge by order/s impugned in this petition/s reversed the finding and directed the complaints to be returned to the proper Court, without giving a finding as to which was the proper Court where the complaints were to be returned. This, the learned Sessions Judge did, relying on Ahuja Nandkishore Dongre v. State of Maharashtra(2006 All. M.R.(Cri.) 3357) which as seen from Jinraj Paper Udyog v. Dinesh Associates and another((2009) 1 Bom CR(Cri.) 612) is pending before the Apex Court. 4. The contention of Shri Arun Bras De Sa, learned Counsel appearing on behalf of the Respondent/Accused is that the complaints ought to have been filed either in Panaji where the payment was intended to be made by the accused or at Mapusa where the statutory notice of demand was served upon the accused, and in this context, learned Counsel has again placed reliance on the said case of Ahuja Nandkishore Dongre v. State of Maharashtra(supra) as well as Jinraj Paper Udyog v. Dinesh Associates and another(supra). In any event, submits the learned Counsel that since the case of K. Bhaskaran v. Sankaran Vaidhyan Balan(2000(5) Bom. C.R. 178) has now been explained by the learned Single Judge of this Court, and this submission is made particularly with reference to para 52(6) of the learned Judgment, it would be necessary for this Court to follow K. Bhaskaran v. Sankaran Vaidhyan Balan(supra) as explained by this Court or refer the matter to a larger Bench. 4 5. Shri J. E. Coelho Pereira, learned Senior Counsel appearing on behalf of the Respondent/Accused submits that the impugned Judgment/s cannot be upheld because it is contrary to the case of K. Bhaskaran v. Sankaran Vaidhyan Balan(supra) which has been followed or in any event not dissented from in Harman Electronics Private Limited and another v. National Panasonic India Private Limited((2009) 1 SCC 720) as well as in the case of Shamshad Begum v. B. Mohammed(2008 STPL(LE) 40806 SC. Learned Counsel further submits that both the cases decided by this Court in Ahuja Nandkishore Dongre v. State of Maharashtra(supra) as well as in Jinraj Paper Udyog v. Dinesh Associates and another(supra) are decided on the facts prevailing in those cases. 6. Admittedly, the case of K. Bhaskaran v. Sankaran Vaidhyan Balan(supra) still holds the field as can be seen from two other Judgments of the Apex Court cited by learned Senior Counsel, namely Shamshad Begum v. B. Mohammed(supra) as well as Harman Electronic Private Limited v. National Panasonic India Private Limited(supra). 7. A learned Single Judge of this Court in Jinraj Paper Udyog v. Dinesh Associates and another(supra) has referred to his earlier Judgment in Ahuja Nandkishore Dongre v. State of Maharashtra(supra), which is otherwise stated to be in appeal before the Apex Court, and has conceded that K. Bhaskaran's case was strictly followed by him in Ahuja Dongre's case and that it 5 merely repelled an attempt to put colloquial or loose meaning on the expression used in K. Bhaskaran's case. The Judgment in Jinraj Paper Udyog v. Dinesh Associates and another(supra) again sums up the ratio in K. Bhaskaran's case and Mosaraf Hossain Khan's case(AIR 2006 SC 1288)(acknowledging the risk which some times are involved in such summing up) and, inter alia, states that “6. since “the payee” is required to issue a notice demanding payment, such place of giving notice would be where, if payee is a company, or other registered establishment, it has a registered office, and in other cases, normally, where the payee ordinarily resides or works for gain, and not any place from where the payee may choose to despatch a notice”. 8. It needs to be reiterated that the case of K. Bhaskaran v. SankaranVaidhyan Balan(supra) still holds the field as can be seen from the two Judgments of the Apex Court in the case of Shamshad Begum v. B. Mohammed(supra) as well as Harman Electronics Private Limited and another v. National Panasonic India Private Limited(supra). All that is stated in this last Judgment of the Apex Court is that considering the facts of the case that it was necessary, in a case of that nature, to strike a balance between the right of the Complainant and the right of an accused vis a vis the provisions of the Code of Criminal Procedure. It also made an observation that the principle applied in civil law that the debtor must seek the creditor should not be applied in a case of that nature because such a principle cannot be applied in a criminal case. The Apex Court also held that: 6 “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 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 of the notice would. It is in the aforementioned situation, the distinction noticed by the Bench in Dalmia Cement(Bharat) Ltd. and the meaning of “giving of notice” and “receiving of notice” as contained in Black's Law Dictionary assumes significance”. 9. In my view, the impugned Judgment/s cannot be allowed to stand on the face of the Judgment of the Apex Court in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan(supra) as well as followed by Shamshad Begum v. 7 B. Mohammed(supra) and Harman Electronics Private Limited and another v. National Panasonic India Private Limited(supra) as well as the Judgment of this Court in the case of Smt. Nutan Damodhar Prabhu and another v. Ravindra Vassant Kenkre and another(supra) which now in turn finds support in the case of Shamshad Begum v. B. Mohammed(supra). This Court in the case of Smt. Nutan Damodhar Prabhu and another v. Ravindra Vassant Kenkre and another(supra) had stated as follows:- “There is another angle from which the controversy could be viewed. Section 177 of the Code of Criminal Procedure, 1973 provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. In other words the offence is to be tried by the Court within whose local jurisdiction it is committed. Section 178 of the said Code provides that -- (a) when it is uncertain in which of several local areas an offence was committed, or (b) where an offence is committed partly in one local area and partly in another, or (c) where an offence is a continuing one, and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. The word “ordinarily” appearing in Section 177 of the Code means a regular, normal, customary, usual and not exceptional. The exceptions are 8 contained in Section 178 onwards. The Apex Court, speaking through five learned Judges, in Narumal v. State of Bombay(AIR 1960 SC 1329) has stated that the word “ordinarily” in Section 177 of the Code means “except where provided otherwise in the Code”. The rule laid down in Section 177 of the Code is one of general application and governs all Criminal trials held under the provisions of the Code. The word “shall” as used in Section 177 is indicative of the mandatory nature of the provision and all offences which do not fall within the purview of special provisions contained under the exceptions should be tried by a Court within the local limits of whose jurisdiction the offence is committed. The Apex Court in several of its decisions including K. Bhaskaran(AIR 1999 ASC 3762)(supra) and M/s. Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd. & Ors.(AIR 2000 SC 954) has stated that an offence under Section 138 is completed after linking several acts and they are as follows: (a) Drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for the discharge in whole or in part of any debt or liability; (b) Presentation of the cheque by the payee or the holder in due course to the bank; (c) Returning of the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque. (d) Giving of notice in writing to the drawer of the cheque within 15 days of the receipt of information by the 9 payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount; and (e) Failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice. 10.The above acts or requirements for the ultimate completion of an offence under Section 138 of the Act, can be culled out from Section 138 of the Act itself. Here it may be noted that none of the said acts in themselves constitute an offence but it is only the last act i.e. failure of the drawer to make the payment within 15 days of the receipt of the notice of the amount due on the cheque which completes the commission of offence. If the payment is made within the said period of notice then there is no offence committed but in case of failure alone that the offence gets completed. Even if the payment is made on the 16th day, the same is not sufficient to come out of the rigours of section 138 of the Act. At the cost of repetition it may be stated that the offence under Section 138 of the Act gets completed or committed by an accused in all respects upon the failure by the accused to comply with the notice of demand. As stated by the Apex Court in the case of Rajneesh Aggarwal v. Amit J. Bhalla(AIR 2001 SC 518), so far as criminal complaint is concerned, once the offence is committed, any payment made subsequent thereof, will not 10 absolve the accused of the liability of the criminal offence, though in the matter of awarding the sentence, it may have some effect on the Court trying the offence. The Hon'ble Supreme Court has also stated that the object of issuing notice indicating the factum of dishonour of cheque, is to give an opportunity to the drawer to make the payment within 15 days, so that it will not be necessary for the payee to proceed against in any criminal action, even though the Bank dishonoured the cheques. As already stated, the statutory notice in question does not specify the place where the accused was required to make the payment of the amount due on the cheques after they were dishonoured and in any event as observed by this Court in Ahuja N. Dongre(2006(6) AIR Bom R 201)(supra) the advocate had not demanded the payment for him but for the client and since the client's address was given in the notice, the payment was obviously required to be made to the Complainant at his residence which was within the jurisdiction of the learned JMFC, Panaji. Needless to observe the common law principle that the debtor should seek the creditor and pay the debt to him at the place where he resides can be invoked and applied in such cases as well. In fact such a principle was followed in L.N. Gupta & Ors. v. Smt. Tara Mani(AIR 1984 Del 49). In other words, the accused after having received the statutory demand notice, having 11 failed to make the payment to the Complainant's at his address where he permanently resides, within the jurisdiction of JMFC, Panaji, committed the offence within the jurisdiction of JMFC, Panaji and it is the JMFC, Panaji, who has to try the same. To reiterate, the money due on the cheques which were dishonoured were required to be paid by the accused to the Complainant at his residence and that is within the jurisdiction of learned JMFC, Panaji”. 10. In the case of Shamshad Begum v. B. Mohammed(supra) after the Complainant had changed his residence to Mangalore the statutory notice was sent from Mangalore demanding payment and then the complaint was filed before the learned J.M.F.C. at Mangalore and following the case of K. Bhaskaran v. Sankaran Vaidhyan Balan(supra) the Apex Court held that the Mangalore Court had jurisdiction to entertain the complaint and further held that all the five acts i.e. (1) the drawing up 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 and (5) failure of the drawer to make payment within fifteen days of the receipt of the notice should have been perpetrated at the same locality and it is possible that each of the five acts could be done at five different localities. The observation in para 52(6) of the Judgment in the case of Jimraj Paper Udyog v. Dinesh Associates(supra) also acknowledges this position i.e. issuing notice demanding repayment and such a place of giving notice would be a place where complaint could be filed. 12 11. One does not know, where the Complainant paid the money to the accused. Wherever it was paid the Complainant could not be expected, unless there was an agreement, that the Complainant should go to the house of the accused to collect it or to the place where the drawer bank is situated. When the accused gave the cheque to the Complainant it is reasonable to infer that the payment would be made at the place where the Complainant resides and in case of dishonour of the cheque also, at the place from where the demand is made and is not complied with. These acts i.e. (d) and (e) would be far more important than others. 12. Considering the facts of the case, therefore, and following the Judgments of the Apex Court in K. Bhaskaran v. Sankaran Vaidhyan Balan(supra) and that of this Court in Smt. Nutan Damodhar Prabhu and another v. Ravindra Vassant Kenkre and another(supra) which is again in conformity with the case of Shamshad Begum v. B. Mohammed(supra) the learned Sessions Judge ought not to have directed the complaints to be sent to the proper Court, even without mentioning which was the proper Court where they were to be sent. The Complainant was a permanent resident of Majorda within the jurisdiction of J.M.F.C., Margao. A notice of demand was sent by the Complainant to make the payment and obviously irrespective of any principle, as such, it was certainly expected that the payment would be made at the residence of the Complainant and failure to do so gave him a cause of action to file a complaint within the jurisdiction of the Court of J.M.F.C. at Margao. 13 13. That being the position, these applications are bound to succeed. The impugned orders are hereby set aside. Both the parties are hereby directed to remain present before the learned J.M.F.C., Margao for further proceedings in the complaints, on 6th June, 2009 at 10.00 a.m. N. A. BRITTO, J. RD