1 wp2594,95,96,97,98,99/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2594 OF 2010 M/s. JRD Steelpac Pvt. Ltd. & Ors. .. Petitioners. V/s. Vasant Kikabhai Dalal & Anr. .. Respondents ALONGWITH WRIT PETITION NO. 2595 OF 2010 M/s. JRD Steelpac Pvt. Ltd. & Ors. .. Petitioners. V/s. Dr. Nita Amish Dalal & Anr. .. Respondents ALONGWITH WRIT PETITION NO. 2596 OF 2010 M/s. JRD Steelpac Pvt. Ltd. & Ors. .. Petitioners. V/s. Dr. Leena Vasant Dalal & Anr. .. Respondents ALONGWITH WRIT PETITION NO. 2597 OF 2010 M/s. JRD Steelpac Pvt. Ltd. & Ors. .. Petitioners. V/s. Dr. Leena Vasant Dalal & Anr. .. Respondents ALONGWITH WRIT PETITION NO. 2598 OF 2010 M/s. JRD Steelpac Pvt. Ltd. & Ors. .. Petitioners. V/s. 2 wp2594,95,96,97,98,99/10 Dr. Nita Amish Dalal & Anr. .. Respondents ALONGWITH WRIT PETITION NO. 2599 OF 2010 M/s. JRD Steelpac Pvt. Ltd. & Ors. .. Petitioners. V/s. Dr. Nita Amish Dalal & Anr. .. Respondents ........ Mr. S. Y. Amure with Mr. M. S. Salvi i/b. M/s. Shantilal & Co. for the Petitioners. Mr. Jatin P. Shah for Respondent No.1. Mr. A. S. Shitole, A.P.P. ........ CORAM: V.M. KANADE, J. DATE : SEPTEMBER 7, 2010. P.C.:- In all these Petitions, the Petitioners are challenging the order of issuance of process dated 18th June, 2010, passed by the learned Metropolitan Magistrate 14th Court, Girgaon, Mumbai for the complaint filed by the Respondents herein for the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred as the Act). 2. The brief facts are as under : 3 wp2594,95,96,97,98,99/10 A complaint was filed by the Respondents herein for the offence punishable under Section 138 read with Section 141 of the Act against the Petitioners in which it was alleged that the complainants had paid an amount of Rs. 4 lakhs on the request made by Accused No. 2 and 3 to discount the bill and thereby to give them Financial Assistance. It is alleged that Accused No. 2, with the consent and knowledge of Accused No. 3 on behalf of himself and accused Nos. 1 and 3, have signed and executed a Demand Promissory Note in his favour and accordingly an amount of Rs. 4,30,000/- was due on 15th May, 2008. The period, however, was extended and a further Demand Promissory Note was executed and when the accused could not pay the said amount after the expiry of the extended period, he issued a cheque for the said amount. When the said cheque was deposited by the complainant at the Breach Candy Branch of the Bank of India, at Mumbai it was dishonoured. A statutory notice was sent, which was duly received by the accused, and thereafter a complaint was filed. 3. Initially process was issued. Being aggrieved by 4 wp2594,95,96,97,98,99/10 the said order of issuance of process, the Petitioners filed Writ Petition Nos. 255 to 260 of 2010. By the order dated 15th February, 2010, brother B. R. Gavai, J. was pleased to pass the following order : “1. Rule. Rule made returnable forthwith. 2. The limited ground on which the order of issuance of process is challenged in the present application is that while issuing process, the learned Magistrate has not made enquiry as contemplated under the amended provisions of section 202 of Cr.P.C. in view of the fact that the accused resides beyond the territorial jurisdiction of the learned Magistrate who has exercised the jurisdiction. 3. The learned Single Judge of this Court while deciding a bunch of applications, being Criminal Application No. 2640/09 alongwith other matters, has taken a view that the amended provisions of section 202 of Cr.P.C. are mandatory in nature and unless the learned Magistrate either makes an enquiry by himself or directs the investigation to be made by police officers, the process cannot be issued and the issuance of process has to be postponed. In that view of the matter, rule is made absolute in terms of prayer clause (b). The matter is remitted back to the learned Magistrate for complying with the provisions of Section 202 of Cr.P.C.” 4. The matter was accordingly remanded back and after remand, affidavit was filed in support of the ground 5 wp2594,95,96,97,98,99/10 raised by the accused under Section 202 of the Code of Criminal Procedure. The matter was thereafter heard and process against the accused was issued on 18th June, 2010. The Petitioners have filed these petitions again challenging the second order of issuance of process dated 18th June, 2010. 5. The learned counsel appearing on behalf of the Petitioners has challenged the order on various grounds. The learned counsel, firstly, invited my attention to the affidavit filed by the Complainant and submitted that there is a complete non-application of mind of the learned Magistrate since the date which was mentioned in the list of documents and more particularly of the demand promissory note was shown as 20th October, 2008 and the promissory note which was annexed was of 11th November, 2009. It was then submitted that the said note was not a demand promissory note, since the said promissory note was not an unconditional note, as it was mentioned that the promissory note was payable after 120 days. It was also pointed out that in respect of other promissory notes, different dates have been mentioned. He invited my 6 wp2594,95,96,97,98,99/10 attention to the illustration in Section 64 of the Act, and he submitted that in respect of contingent events, the promissory note would not be a demand promissory note. 6. It was then contended that there is no presentation as required under Section 64 of the Act. Next, it was submitted that there was no delivery as contemplated under Section 64 of the Act. Even it was urged that the Girgaon Court does not have jurisdiction to try and decide mainly the case my attention was invited to averments in the compliant. It was submitted that it is only mentioned that the complainant is residing in Mumbai and his bank is situated at Mumbai. On the other hand, it was also urged that on the same day on which affidavit was filed, the process has been issued and therefore there is non application of mind on the part of the learned Magistrate. 7. On the other hand, the learned counsel for the complainant submitted that the Petitioners are residing at Mumbai, the cheque in question was an at par cheque and it was dishonoured in Mumbai. The Memo of the Bank also clearly indicates that it was dishonoured at Mumbai. 7 wp2594,95,96,97,98,99/10 Inviting my attention to page 22 of the said Petition, it was then submitted that, the payment was demanded at Mumbai. It was, therefore, urged that in view of the Judgment in the case of K. Bhaskaran V/s. Sankaran Vaidhyan Balan & Anr. reported in 1999 (4) ALL MR 452, the Girgaon Court has jurisdiction to try and entertain the case. The specific averment was made that in Petition Nos. 2595 of 2010 and 2597 of 2010 are at par cheques in respect of all petitions, except Petition Nos. 259 and 257. He submitted that even otherwise if the cheque was deposited in Bombay the Girgaon Court has jurisdiction. 8. I have heard both the counsel at length. Firstly, in my view, the Petitioners are not entitled to raise the other grounds which have been raised in the Petitions since these are second petitions filed by the Petitioners and in the first petition the only ground which was raised by them was in respect of enquiry not being made, as contemplated under the amended provisions of Section 202 of the Code of Criminal Procedure. Since the other grounds were not raised, they have been deemed to have raised, and therefore, on the principle of constructive res-judicata, the 8 wp2594,95,96,97,98,99/10 Petitioners are not entitled to agitate the ground which they may have taken in the earlier writ petition and were not pressed. Be that as it may, I shall also consider on merits the other grounds which are raised. The first submission made by the learned counsel for the Petitioners that the promissory note was not presented and that it was not the demand promissory note. Both these contentions are without any substance. A promissory note is defined under Section 4 of the Act, as under : “Promissory note”.- A “promissory note” is an instrument in writing (not being a bank-note or a currency-note_ containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. Illustrations. A signs instruments in the following terms :- (a) “I promise to pay B or order Rs. 500.” (b) “I acknowledge myself to be indebted to B in Rs. 1,000, to be paid on demand, for value received.” (c) “Mr. B, I.O.U. Rs.1,000.” (d) “I promise to pay B Rs. 500 and all other sums which shall be due to him.” 9 wp2594,95,96,97,98,99/10 (e) “I promise to pay B Rs. 500, first deducting thereout any money which is may owe me.” (f) “I promise to pay B Rs. 500 seven days after my marriage with C.” (g) “I promise to pay B Rs. 500 on D's death, provided D leaves me enough to pay that sum.” (h) “ I promise to pay B Rs. 500 and to deliver to him my black horse on 1st January next.” The instruments respectively marked (a) and (b) are promissory note. The instruments respectively marked (c), (d), (e), (f), (g) and (h) are not promissory notes.” 9. In the present case, a perusal of the promissory note shows that it is a demand promissory note and it was made payable on 120 days on demand. The reliance was placed on the following illustrations on the promise to pay (b) Rs. 500/- seven days after marriage (c)” and other illustrations, illustrations “c” to illustration “h”. The said submission has to be stated for the purpose of being rejected. The illustrations which are given below the definition of the promissory note obviously referred to 10 wp2594,95,96,97,98,99/10 contingent events which may happen or may not happen in future. Illustration “f” therefore states that the seven days after marriage promise to pay Rs. 500/-. Obviously marriage of a person is a contingent event which may or may not take place, and, therefore, the said note has not been treated as a promissory note. A note which is made payable on demand after 120 days is neither conditional nor is based on the contingent event. The said submission therefore cannot be accepted that the said promissory note is not a demand promissory note. Similarly, that there was no presentation made by the complainant is also without any substance. Section 64 reads as under : “ Presentment for payment.- [(1)] Promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf of the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder. [Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.] Exception.- Where a promissory note is payable on demand and is not payable at a specified place, no presentment is 11 wp2594,95,96,97,98,99/10 necessary in order to charge the maker thereof. [(2) Notwithstanding anything contained in Section 6, where an electronic image of a truncated cheque is presented for payment, the drawee bank is entitled to demand any further information regarding the truncated cheque from the bank holing the truncated cheque in case of any reasonable suspicion about the genuineness of the apparent tenor of instrument, and if the suspicion is that of any fraud, forgery, tampering or destruction of the instrument, it is entitled to further demand the presentment of the truncated cheque itself for verification : Provided that the truncated cheque so demanded by the drawee bank shall be retained by it, if the payment is made accordinlgy.] 10. The Exception to Section 64 clearly stipulates that the condition of representation is not applicable in the case of the demand promissory note. For the same reason, the question of delivery as envisaged under Section 46 would not apply in the present case. In any event, a complaint has been filed on a dishonoured cheque which was given by the accused, was drawn by the accused and was given to the complainant. 12 wp2594,95,96,97,98,99/10 11. So far as the question of jurisdiction is concerned, in the case of K. Bhaskaran (supra), the Apex court clearly laid down that a complaint can be filed at any of the five places where the cause of action arises. In the present case, the cheque was deposited by the complainant at Mumbai. All the other cheques except those in writ petition Nos. 2595 and 2597 of 2010 are at par cheques and therefore, could be presented within Mumbai and the said cheques have been dishonoured at Mumbai. So far as the other two cheques which were drawn on Andhra Bank are concerned, the same were presented at Mumbai and therefore, in view of the Judgment in the case of K. Bhaskaran (supra), the complainant was entitled to file the complaint in the Girgaon Court. Further, the payment has been demanded in Mumbai. In the circumstances, there is substance in the submissions made by the Petitioners. This is a clear case where the accused have filed these petitions only for the purpose of protracting the trial by raising frivolous grounds which even otherwise they are not entitled to raise and are barred by constructive re-judicata and principles which are analogous to constructive res-judicata. 13 wp2594,95,96,97,98,99/10 12. The Writ Petitions are, therefore, dismissed with costs which are quantified at Rs.5000/- in each case. Costs may be paid directly to the Respondents within four weeks from today. 13. The trial Court is directed to hear the criminal case as expeditiously as possible and in any case within a period of six months from today. 14. The learned Magistrate is directed to record the plea of the accused tomorrow i.e. on 8th September, 2010. 15. Parties to act on an ordinary copy of this order duly authenticated by the Shiresteder of this Court. [V.M. KANADE, J.]