1 wp2478.09.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION. Criminal Writ Petition No. 2478 of 2009 Raymonds Limited ....Petitioner v/s. State of Maharashtra & ors. ....Respondents Mr. K. Parekh, Rajiv Singh i/b. Crawford Bayley & co. for the petitioner. Mr. J.A. Udaipuri, Darshan Modi i/b. M/s. Udaipuri & co. for respondents 2 and 3. Mr. S.S. Pednekar-APP for the State. CORAM: B.R. GAVAI, J. 23rd June, 2011 PC: Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. The petitioner filed a criminal complaint being no. 1500/SS/2007 against the respondents 2,3 and 4 for the offence punishable under Section 138 read with 141 of the Negotiable Instruments Act (hereinafter referred to as N.I. Act). The respondent-accused appeared in the case in 2002. The respondent-accused has also filed a petition being Writ Petition No. 1099/2002 before the High Court at Calcutta challenging the proceedings filed at Mumbai which petition was rejected by the Calcutta High Court on 14th June, 2002. After the process was issued in 2002 on 10th January, 2008, respondent-accused filed an application for return of the complaint for want of jurisdiction. The said application was rejected by the learned Magistrate vide order dated 15th July, 2008. The respondent-accused carried the said order in revision before the learned Sessions Judge, Mumbai. The learned Sessions Judge in Criminal 2 wp2478.09.sxw Revision Application No. 922/2008 allowed the said revision. 3. Shri Parekh, the learned Counsel appearing on behalf of the petitioner submits that learned Revisional Court has grossly erred in reversing the well reasoned order passed by the learned Magistrate rejecting the application of the accused. The learned Counsel submits that at the first instance such an application at the behest of the accused after a period of six years from issuance of process was not tenable in law. The learned Counsel submits that in view of the law laid down by the Apex Court in the case of Adalat Prasad vs. Rooplal Jindal & ors. 2004 (CR4) GJX 1332 SC and Subramanium Sethuraman v/s. State of Maharashtra & anr. 2004 CriLJ 4609, the application itself was not tenable. It is submitted that in any case the view taken by the learned Revisional Court is not correct view inasmuch as the cheque in question was presented in the Complainant’s Bank at Mumbai. The notice under Section 138 was issued from Mumbai and that the registered office of the Complainant is also at Mumbai. The learned Counsel, therefore, submits that in view of the view taken by this Court in the case of Hemlata Raghunath Pendharkar vs. Jaswantsingh Rajaram Sonawane & anr., 2010 (4) Bom.C.R.692 the order passed by the learned Revisional Court is not sustainable in law. 4. Shri Udaipuri, the learned Counsel appearing on behalf of respondent- accused on the contrary submits that the learned Revisional Court has rightly relied on the Judgment of the Single Judge of this Court in the case of Ahuja Nandkishore Dongre v/s. State of Maharashtra & anr. 2007 Cri. L.J. 115 and the judgment of the Apex Court in the case of Harman Electronics (P) Ltd. v/s. National Panasonic India Ltd. 2009 (3) Mh. L.J. (S.C.) 792 India has rightly allowed the revision. He submits that since the entire transaction has taken place at Calcutta, the complaint itself was not tenable at Mumbai and ought to have been filed at Calcutta. It is, therefore, submitted that the learned 3 wp2478.09.sxw revisional Court has rightly allowed the revision. The learned Counsel submits that the view taken by this Court in the case of Hemlata Raghunath Pendharkar (supra) is not a correct view and requires reconsideration and, therefore, matter should be referred to larger Bench. 5. While considering the case of Hemlata Raghunath Pendharkar (supra), I have considered the judgment of the learned Single Judge in the case of Nandkishore Ahuja. In the said case, the complaint came to be filed by the complainant in a place of which he was not resident and the only reason as to why the complaint was filed was that the notice is not through a lawyer. In the said case, I have also considered the judgment of the Apex Court in the case of K. Bhaskaran and in the case of Harman Electronics. After analysing the judgment of the Hon’ble Supreme Court as well as the learned Single Judge of this Court I have held thus:- “It thus appears to be a consistent view that in order to avoid unnecessary harassment to an accused, if the complaint is filed at a place where the complainant does not ordinary reside or carried on his business and the cheque is presented at some other place and a notice is given to such place only in order to file a complaint at such place, the complaint would not be tenable in the Court of such a place. However, if the cheque is presented at a place where the complainant ordinarily resides or carries on business or if it is a company where its registered office is situated and if a notice demanding payment is issued from such a place, then the Court at such a place will have jurisdiction to entertain the complaint. In that view of the matter, I am unable to accept the submissions made by the learned Counsel for the applicants that the place of residence of the complainant where the complainant demands payment and the place from where the notice is issued are wholly irrelevant for the purpose of determining the jurisdiction. If notice is issued from the place where the complainant, ordinarily resides or carries on business or if the 4 wp2478.09.sxw complainant is a company or a firm where it has its registered office, then such a place will have jurisdiction to entertain the complaint. Only if notice is issued from some other place where the complainant does not ordinarily reside or carry on his business, only in order to harass the accused, then merely because a notice is issued from such a place, would not give jurisdiction to the Court at the said place to entertain the complaint.” 6. It can thus clearly be seen that in the present case, the Complainant’s registered office is at Mumbai. The cheque is presented at Mumbai. The notice under Section 138 is also issued from Mumbai. In that view of the matter, in view of the view taken by me I find that the learned Revisional Court has grossly erred in allowing the revision application. Insofar as the request made by Shri Udaipuri to refer the matter to the larger Bench is concerned, the view taken by me has been taken by following the view taken by the Apex Court in the case of K. Bhaskaran and Harnam Electronics and, therefore, I do not find that the case is made out for referring the matter to larger Bench of this Court. 7. The petition is, therefore, allowed in terms of prayer clause (i). 8. At this stage Shri Udaipuri, the learned Counsel for the petitioner requests for stay of the judgment for a period of 16 weeks so as to enable the respondent-accused to approach the Hon’ble Apex Court. 9. Shri Parekh, the learned Counsel vehemently opposes this request. 10. In the interest of justice, I am inclined to grant stay to the judgment and order passed by me for a period of 8 weeks from today. 11. Needless to state that in the event the respondent-accused do not produce 5 wp2478.09.sxw any interim order passed by the Apex Court within a period of 8 weeks from today, the learned Magistrate would proceed further in accordance with law. Taking into consideration that the case is of 2002, the learned Magistrate would make an endevour to dispose of the case as expeditiously as possible. (B.R. GAVAI, J)