{1} CWP No.442/2011+4 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.442 OF 2011 WITH CRIMINAL WRIT PETITION NO.443 OF 2011 WITH CRIMINAL WRIT PETITION NO.444 OF 2011 WITH CRIMINAL WRIT PETITION NO.445 OF 2011 WITH CRIMINAL WRIT PETITION NO.446 OF 2011 XXXX CRIMINAL WRIT PETITION NO.442 OF 2011 Senapati Bapat Nagari Sahakari PETITIONER Pat Puravatha Sanstha Maryadit, Now Converted in Multi State Cooperative Credit Society Ltd., Having its Registered Head Office At Parner, Tq-Parner Dist-Ahmednagar Through its Authorized Recovery Officer Minanath s/o Kisan Shinde Aged-45 years, Occ-Service VERSUS 1. Sau Savita Satish Bihani RESPONDENTS Age-47 years, Occ-Business R/o 216, Nita Chambers Shivaji Nagar, Pune 2. The State of Maharashtra {2} CWP No.442/2011+4 WITH CRIMINAL WRIT PETITION NO.443 OF 2011 Senapati Bapat Nagari Sahakari PETITIONER Pat Puravatha Sanstha Maryadit, Now Converted in Multi State Cooperative Credit Society Ltd., Having its Registered Head Office At Parner, Tq-Parner Dist-Ahmednagar Through its Authorized Recovery Officer Minanath s/o Kisan Shinde Aged-45 years, Occ-Service VERSUS 1. Bhalchandra Sadashiv Kulkarni RESPONDENTS Age-62 years, Occ-Business R/o 137, Shukrawar Peth, Pune 2 2. The State of Maharashtra WITH CRIMINAL WRIT PETITION NO.444 OF 2011 Senapati Bapat Nagari Sahakari PETITIONER Pat Puravatha Sanstha Maryadit, Now Converted in Multi State Cooperative Credit Society Ltd., Having its Registered Head Office At Parner, Tq-Parner Dist-Ahmednagar Through its Authorized Recovery Officer Minanath s/o Kisan Shinde Aged-45 years, Occ-Service VERSUS {3} CWP No.442/2011+4 1. Deepak Damjibhai Nathwani RESPONDENTS Age-54 years, Occ-Business R/o Survey No.50/1/1 Indra Nagar Wadgaonsheri, Pune 2. The State of Maharashtra WITH CRIMINAL WRIT PETITION NO.445 OF 2011 Senapati Bapat Nagari Sahakari PETITIONER Pat Puravatha Sanstha Maryadit, Now Converted in Multi State Cooperative Credit Society Ltd., Having its Registered Head Office At Parner, Tq-Parner Dist-Ahmednagar Through its Authorized Recovery Officer Minanath s/o Kisan Shinde Aged-45 years, Occ-Service VERSUS 1. Harshal Satish Bihani RESPONDENTS Age-31 years, Occ-Business R/o 216, Neeta Chambers, Shivaji Nagar, Pune 2. The State of Maharashtra WITH CRIMINAL WRIT PETITION NO.446 OF 2011 Senapati Bapat Nagari Sahakari PETITIONER Pat Puravatha Sanstha Maryadit, Now Converted in Multi State Cooperative Credit Society Ltd., {4} CWP No.442/2011+4 Having its Registered Head Office At Parner, Tq-Parner Dist-Ahmednagar Through its Authorized Recovery Officer Minanath s/o Kisan Shinde Aged-45 years, Occ-Service VERSUS 1. Satish Harikishan Bihani RESPONDENTS Age-60 years, Occ-Business R/o 216, Neeta Chambers, Shivaji Nagar, Pune 2. The State of Maharashtra ....... Mr.R.N.Dhorde h/f Mr.V.R.Dhorde, Advocate for the petitioner Mr.U.R.Kulkarni, Advocate for Respondent No.1 Mr.S.G.Nandedkar, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 23 rd September 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard finally by consent. 2. By these petitions, under Articles 226 and 227 of the Constitution of India r/w section 482 of the Criminal Procedure Code, the petitioner has questioned the correctness and legality of {5} CWP No.442/2011+4 the order dated 04.05.2011 passed by Additional Sessions Judge, Ahmednagar in Criminal Revision Application Nos.12/2011, 13/2011, 14/2011, 15/2011 and 17/2011. By the impugned order, the Additional Sessions Judge, Ahmednagar has quashed and set aside the order dated 16.09.2010 passed by JMFC, Parner, Dist- Ahmednagar in STC No.585/2006, 587/2006, 591/2006, 592/2006 and 593/2006 on the ground of maintainability of the said proceedings on the point of territorial jurisdiction of the JMFC, Parner to try and entertain these complaints. 3. As common question of law has been involved in all these petitions as to whether the Court of JMFC, Parner is competent to try and entertain the Complaints bearing STC Nos. 585/2006, 587/2006, 591/2006, 592/2006 and 593/2006, they are being disposed of by this common judgment. 4. Such of the facts, as are necessary for the decision of the present writ petitions, may briefly be stated thus- a) The petitioner is a Credit Cooperative Society, which is {6} CWP No.442/2011+4 now converted into Multi State Cooperative Credit Society. The petitioner society is doing the business of advancing finance. The registered Head Office of the petitioner society is at Parner and the petitioner society is doing its business through its various branches situated in different districts viz, Ahmednagar, Nashik and Pune. The petitioner society has 3 branches in Pune district including the branch at Chinchwad. b) Respondents in all these petitions, who are doing their business at Pune, in the year 2004, had applied for cash credit facility of Rs.25,000,00/- each for 5 years period, at the Chinchwad branch of the petitioner society. The applications submitted by the respective respondents, along with the requisite documents, were forwarded to the Head Office of the petitioner society at Parner. Accordingly, in the meeting held by the Board of Directors of the petitioner society at the Head office at Parner, the proposals submitted by the present respondents were approved vide resolution passed in the meeting dated 25.09.2004. Thereafter, on completion of and on execution of the necessary documents, loans were disbursed to the respective respondents, {7} CWP No.442/2011+4 through the Chinchwad branch of the petitioner society. It appears that the respondents failed to repay the loan advanced by the petitioner society within time and hence the petitioner society repeatedly demanded the due amount from the respondents. c) It appears that in discharge of the repayment of the loan availed by the respondents they have given respective cheques dated 13.06.2006 in favour of the petitioner society, which were drawn on various banks at Pune. All the cheques given by the respondents were deposited by the petitioner society in its bank account with Baramati Cooperative Bank Ltd., Branch Chinchwad between 15.06.2006 and 20.06.2006. However, all the cheques were dishonoured on the grounds “Not arranged for” and “insufficient funds” and in respect of the cheque given by respondent in Criminal Writ Petition No.443/2011, it was returned as “Account closed”. All the cheques were returned to the petitioner society along with the cheque return memo. d) Thereafter, statutory notice, dated 06.07.2006 was issued to all the respondents and the respondents were intimated {8} CWP No.442/2011+4 about the dishonour of the cheques issued by them and they were called upon to make the payment. However, respondents in Writ Petition Nos.442/2011, 443/2011 and 444/2011 refused to accept the said notice and though the remaining respondents accepted the notice, yet did not respond the same. e) It further appears that therefore, the petitioner society has filed Complaints in STC Nos.585/2006, 587/2006, 591/2006, 592/2006 and 593/2006 in the Court of JMFC, Parner along with the documents. It also appears that after recording the necessary verification of the authorized officer of the petitioner society, JMFC, Parner had issued process against all the respondents on 09.08.2006. In response to the same, the respondents appeared before the JMFC, Parner and were released on bail. 5. Record indicates that thereafter the particulars of accusation / offence were explained to each of the respondents in each of the case on 24.03.2008 to which they pleaded not guilty. It further appears that on 05.05.2008, affidavit of examination in chief of the authorized officer of the petitioner society was filed {9} CWP No.442/2011+4 before JMFC, Parner and on 05.07.2008 examination in chief of the said officer was commenced and cross examination was also partly recorded. Thereafter, the trial was adjourned to 04.09.2008 and thereafter the same was adjourned from time to time on one or the other ground. 6. It appears that within mean time, on 04.09.2009, the respondents filed discharge applications before the trial Magistrate, which were contested by the petitioner society. It further appears that for one or the other reasons these applications seeking discharge were also adjourned from time to time and ultimately by separate orders in each of the applications, the same came to be rejected by the trial Magistrate on 16.09.2010. It further appears that the orders dated 16.09.2010 passed by the JMFC, Parner were challenged by the respondents by preferring Criminal Revision Application Nos. 12/2011, 13/2011, 14/2011, 15/2011 and 17/2011 before the Sessions Court, Ahmednagar. Additional Sessions Judge, Ahmednagar, vide order dated 04.05.2011, allowed all these revision applications by setting aside th orders passed by the trial Magistrate dated 16.09.2010, which orders are now {10} CWP No.442/2011+4 impugned in these petitions. 7. During the course of submissions, learned counsel for the parties took me through the entire record, including the orders passed by both the Courts below. 8. Learned counsel for the petitioner urged that while rejecting the applications of discharge, learned Magistrate has relied on the observations of the Apex Court in the matter of “K.Bhaskaran V/s Sankaran Vaidhyaan Balan” (1999) 7 SCC 510 : 1999 SCC (Cri) 1284. While rejecting these contentions the Revisional Court has relied on the observations of this Court in the matter of “Dipti Kumar Mohanty V/s Videocon Industries Ltd” 2009 (5) Mh.L.J. 273, Ahuja Nandkishore Dongre V/s State of Maharashtra” 2007 (1) Bom.C.R. (Cri) 1031 and “M/s.Harman Electronics (P) Ltd., V/s M/s National Panasonic India Ltd.,” 2009 Cri.L.J. 1109 (SC) and allowed the revision applications by setting aside the orders passed by the learned trial Magistrate dated 16.09.2010. {11} CWP No.442/2011+4 9. Learned counsel for the petitioner urged that the Revisional Court has not considered the ratio laid down in K.Bhaskaran’s case (Supra), which is discussed in the recent judgment by the Division Bench of this Court in “Preetha S.Babu V/s Voltlas Ltd.,” 2010 (3) Mh.L.J.234, in unreported judgment of this Court in Writ Petition No.30/2011 dated 10.08.2011 so also in the judgment this Court in “Subhiksha Trading Services Ltd., V/s Kotak Mahindra Bank” 2011 (2) Mh.J.L. 353. It is further urged that in view of the admitted facts that the petitioner has its registered head office at Parner, loans were approved and sanctioned at the registered head office of the petitioner society at Parner and the statutory notices were issued by the petitioner society through its registered head office at Parner and the respondents were called upon to make the payment of the loan at Parner, learned JMFC, Parner has jurisdiction to try and entertain the complaint and hence it is requested to allow the petitions. It is further urged that the respondents have not taken any objection, when the trials were commenced and even after the substantial cross examination of the complainant is recorded and it appears {12} CWP No.442/2011+4 that during the pendency of the criminal revision applications, major part of the cross examination is over till 01.03.2011 and hence it is rightly submitted that the attempts of the respondents are only to protract the trial without any reason and to avoid repayment of loan. 10. Per contra, learned counsel for the respondents, while supporting the impugned orders, has urged that merely because the statutory notices as per the Negotiable Instruments Act were served by the petitioner through its registered head office at Parner and the respondents were called upon to pay the amount at Parner, do not constitute jurisdiction to JMFC, Parner to try and entertain the complaint when the entire transactions have taken place at Chinchwad, Pune. 11. After considering the rival submissions, in the light of the admitted facts that the registered head office of the petitioner society is situated at Parner, the cash credit facilities were sanctioned and approved at Parner, the statutory demand notice of repayment for the cheques bounced was issued by the Head Office {13} CWP No.442/2011+4 at Parner and the respondents were called upon to make the repayment of the amount of the cheques bounced at Parner, then certainly part of the cause of action has aroused at Parner, which is an essential component to constitute an offence punishable u/s 138 of the Negotiable Instruments Act. 12. In this respect, it may be useful to refer the observations of the Court in the matter of “K Bhaskaran’s” case, which are quoted in the judgment in “Shamshad Begum V/s B.Mohammed” (2008) 13 SCC 77. The Apex Court, in the said judgment has observed thus- “8. As was noticed in K.Bhaskaran case, the offence under section 138 of the Act can be completed only with the concatenation of a number of acts. The acts which are components are as follows: (1) drawing of the cheque; (2) Presentation of the cheuqe to the bank (3) Returning the cheque unpaid by the draweee bank; (4) Giving notice in writing to the drawer of the cheuqe demanding payment of the cheque amount; (5) failure of the drawer to make payment within 15 days of the receipt of the notice. {14} CWP No.442/2011+4 7. In K.Bhaskaran V Sankaran Vaidhyaan Balan, it was inter alia observed as follows: (SCC P.518 Paras 15-17) “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 (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”. 16. Thus, it is clear, if the five different acts were doen in five different localities any one of the Court 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. 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. 17, The more important point to be decided in this case is whether the cause of action has arisen at all as the notice sent by the complainant to the accused was returned as “unclaimed”. The conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in clauses (b) to (c) of the proviso to section 138 of the Act. The said clauses are extracted below : {15} CWP No.442/2011+4 (b) the payee or the holder in due course of the cheuq, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheuqe fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice” 9. It is not necessary that 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 concatenation of all the above five is sine qua non for the completion of the offence under section 138 of the Act. 13. It may also be useful to refer the observations of the Division Bench of this Court, in “Preetha S.Babu V/s Voltas Ltd.,” 2010 (3) Mh.L.J. 234. In the said judgment, the Division Bench of this Court has observed thus- “Besides, in our opinion, if the complainant calls upon the accused to make payment at a place mentioned in the demand notice and the accused fails to make payment at that place, part of cause of action would undoubtedly arise at that place. We are supported in this view by judgment of learned Single {16} CWP No.442/2011+4 Judge of this Court (A.S.Oka, J.) in Criminal Writ Petition No.1778 of 2008 and other companion writ petitions decided on 13th and 17th of August 2009, where learned Single Judge has drawn support from Ahuja Dongre because, in Ahuja Donge, same view is taken on this aspect. Similar view has also been taken by N.J.Pandya, J. in Yashomala Engineering Pvt. Ltd., V/s Tata SSL Ltd., and anr. 1998 (3) Mh.L.J. 822 = 1998 Cri.L.J. 4350. If this test is applied to the present case, Mumbai Court will have jurisdiction.” 14. It may further be useful to refer the observations of this Court in “Subhiksha Trading Services Ltd., V/s Kotak Mahindra Bank” 2011 (2) Mh.L.J. 353. Wherein this Court has observed thus- “Secondly, the registered office of the Complainant is at Mumbai, the notice was issued from Mumbai and further the credit facilities were also sanctioned from Mumbai and, therefore, in view of the judgment of the Apex Court in case of K.Bhaskaran V.s Sankaran Vaidhyan Balan and anr. Reported in 2000 (1) Mh.L.J. (SC) 193 and also the judgment of the Division Bench of this Court in the case of Preetha Babu V/s Voltas Ltd.,” the judgment of the Bombay High Court dated 3rd February 2010 in Criminal Application No.3158 of 2010 (2010 (3) Mh.L.J. 234) and judgment of the Apex Court in Samshad Begum V.s B.Mohammad, reported in AIR 2009 SC 1355, the Bombay Court, therefore will have jurisdiction to try and decide the case.” 15. If all these tests are applied to the undisputed facts, mentioned above, it has to be held that the Magistrate Court of {17} CWP No.442/2011+4 JMFC, Parner has territorial jurisdiction to try and entertain all these complaints bearing STC Nos.585/2006, 587/2006, 591/2006, 592/2006 and 593/2006 and the Revisional Court has committed in error in allowing the Criminal Revision Application Nos.12/2011, 13/2011, 14/2011, 15/2011 and 17/2011 and quashing the order dated 16.09.2010. In the premise, the impugned order dated 04.05.2011 requires to be quash and set aside. 16. Accordingly, All the Petitions are allowed. The impugned order dated 04.05.2011 passed by the Additional Sessions Judge, Ahmednagar in Criminal Revision Application Nos.12/2011, 13/2011, 14/2011, 15/2011 and 17/2011 are hereby quashed and set aside. Rule is made absolute as indicated above. [A.V.POTDAR, J.] drp/B11/cwp442-11