1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.709 OF 2011 Bhawarlal Jain Applicant versus M/s.Maxwell Industries Ltd. and another Respondents Mr.Ajit J. Shobhawat for applicant. Mr.S.V.Marwadi i/by Mr.V.R.Yadav for respondent no.1. Mr.A.S.Shitole, APP for State. CORAM : RANJIT MORE, J. DATE : 13th December 2011 PC : 1. Heard learned counsel for the respective parties. The above criminal application is filed under section 482 of the Code of Criminal Procedure challenging the order dated 22nd June 2011 passed by learned Additional Sessions Judge, Mumbai dismissing the applicant's Revision Application No.1238 of 2003 with further prayer to quash and set aside the Complaint CC No.146/SS/2005 for want of territorial jurisdiction. 2. The first respondent filed case under section 138 read with section 141 of the Negotiable Instruments Act, 1881 against the applicant before Learned Magistrate, 44th Court, at Andheri, Mumbai. The plea of the applicant is recorded and thereafter affidavit of evidence is filed by the respondent-complainant. The applicant has started cross-examination of the complainant. At that stage of the criminal proceedings, the applicant filed an application seeking dismissal of the case on the ground that the learned Metropolitan Magistrate has no territorial jurisdiction to try the case. That application stood dismissed and thereafter the learned Additional Sessions Judge rejected the revision application preferred by 2 the applicant against the order of learned Magistrate. Therefore, applicant has filed present application. 3. In short it is the case of the applicant that entire transaction was completed at Hubali (Karnataka State). The respondent-complainant has its branch office at Bangalore and Tripur. Therefore, merely because the respondent presented the cheque at Mumbai and after dishonour of the cheque issued statutory notice from Mumbai, does not confer jurisdiction on the learned Magistrate at Mumbai. Learned counsel for the applicant heavily relied on the the decision in case of M/s.Harman Electronics (P) Ltd. and another Vs. M/s.National Panasonic India Limited (2009-ALL MR Criminal-280 {SC}) which according to him was subsequently followed by a learned Single Judge in Criminal Writ Petition No.2072 of 2009. 4. Learned counsel for the the respondent-complainant, on the contrary, supports the impugned order. He strongly contended that the complaint was rightly filed before the learned Metropolitan Magistrate's Court at Mumbai. He submitted that the transaction in question was subject to the jurisdiction of Mumbai Court. The head office of the respondent-complainant is situated at Mumbai. The cheque in question was presented in the bank at Mumbai. Statutory notice was also issued from Mumbai. In these circumstances, he submitted that the appropriate Court at Mumbai will have jurisdiction to try the complaint. He relied upon the decision of Apex Court in case of K.Bhaskaran Vs. Sankaran V. Balan and another ([1999]7-SCC-510) which decision was subsequently followed by the Apex Court in case of Smt.Shamshad Begum Vs. B. Mohammed (2008)13-SCC-77. He also relied on the decision of learned Single Judge in case of Hemlata Raghunath Pendharkar Vs. Jaswantsingh Rajaram Sonawane and another (2010-ALL MR Criminal-3201) and also judgment of a Division Bench of this Court in case of Mrs.Preetha S. Babu Vs. Voltas Limited and another in Criminal Writ Petition No.3158 of 2009. 3 5. Having considered the rival submissions and having gone through the complaint along with annexures thereto and the decisions relied, I am not inclined to interfere in the present application. The respondent no.1 filed complaint in the year 2005. Hearing of the complaint is at an advanced stage, inasmuch as the affidavit of evidence is already filed by the respondent-complainant and is under cross examination by the applicant-accused. The applicant ought to have taken the objection about territorial jurisdiction of the learned Magistrate at the inception. However, he preferred to wait for a considerable long period of four years after service of summons to him. Learned Lower Appellate Court in this regard rightly relied on the decision of the Apex Court in case of Subramanium Sethuraman Vs. State of Maharashtra reported in 2004-Legal Eagle-343 in Criminal Appeal No.1253 of 2002 decided on 17th September 2004. 6. The Apex Court in case of K.Bhaskaran Vs. Sankaran Vaidyan Balan and another (supra) considered the issue of jurisdiction of the Court in respect of cases under section 138 of the Negotiable Instruments Act, 1881. Relevant observations of the Apex Court are in paragraphs 11 to 16 which are reproduced as under : “11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under Section 177 of the Code “every offence shall ordinarily be enquired into and tried in a court within whose jurisdiction it was committed”. The locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as a sole criterion to determine the place of offence. It must be remembered that offence under Section 138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a 4 variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act. 12. Even otherwise the rule that every offence shall be tried by a court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle. Section 177 itself has been framed by the legislature thoughtfully by using the precautionary word “ordinarily” to indicate that the rule is not invariable in all cases. Section 178 of the Code suggests that if there is uncertainty as to where, among different localities, the offence would have been committed the trial can be had in a court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon. It reads thus: “179. Offence triable where act is done or consequence ensues.--When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be enquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.” 13. The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the courts to try the offence was sought to be determined. 14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing 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, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. 15. It is not necessary that all the above five acts should 5 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. (a) ... ... ... (b) ... ... ... (c) ... ... ... (d) where the offence consists of several acts done in different local areas, it may be enquired 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 done in five different localities any one of the courts 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.” From the above observations of the Apex Court it is clear that the complaint can be filed at any of the places where the five acts have been taken place namely : (a) drawing of the cheque; (b) presentation of the cheque to the bank; (c) returning the cheque unpaid by the drawee bank; (d) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; (e) failure of the drawer to make payment within 15 days of the receipt of the notice. 7. The decision of Apex Court in K.Bhaskaran (supra) is followed by 6 another Division Bench of the Apex Court in case of Shamshad Begum (supra). The learned Single Judge of this Court in case of Hemlata Pendharkar (supra) considered the decisions of the Apex Court in case of K.Bhaskaran, Shshshad Begum and M/s.Harman Electronics Pvt.Ltd. and held that if the cheque is presented at the places 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. 8. The Division Bench of this Court in case of Mrs.Preetha S. Babu (supra) also considered the above said decisions of Apex Court and made following observations in paragraph 7, which reads as under :- "7. In our opinion, in the facts of this case, it is difficult to hold that the Mumbai Court has no jurisdiction. Admittedly, respondent 1's registered office is situated at Mumbai. According to respondent 1, purchase order was placed in Mumbai. We have noted that statutory notice was issued from Mumbai and the accused were called upon to pay the amount in Mumbai. Cheque was deposited in Citibank, Mumbai, which is respondent 1's banker. It was dishonoured in Mumbai. It all these facts are taken into consideration, it is difficult to hold that no part of the cause of action has arisen in Mumbai." 9. If the facts of present case are considered on the touchstone of the ratio of the Apex Court in case of K.Bhaskaran and Shamshad Begum (supra) then it is clear that the Metropolitan Magistrate at Mumbai has jurisdiction to try the complaint. Therefore, the applicant's application was rightly rejected by the learned Magistrate as well as the learned Lower Appellate Court. 10. So far as judgment of the Apex Court in case of M/s.Harman Electronics Pvt.Ltd. is concerned, the Apex Court taking into consideration the fact that banking institution holding several cheques signed by the same borrower may not only present the cheques for its encashment at 7 four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This would cause grave harassment to the accused. It was found necessary 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. From the facts of the said case, it can be seen that the Apex Court was dealing with a matter wherein though the entire transaction had taken place at Chandigarh i.e. deposit and dishonour of the cheque, the head office of the accused and the complainant being situated at Chandigarh, only in order to file a complaint at Delhi, so as to harass the accused, notice was issued by the complainant from Delhi. The Apex Court, therefore, held that issuance of a notice would not by itself give rise to a cause of action, but the communication of the notice would. This judgment of the Apex Court was followed by the learned Single Judge in Criminal Writ Petition No.2072 of 2009. A perusal of the this judgment also reveals that the entire transaction took place at Jaipur. However, notice was issued from Mumbai in order to enable the complainant to file case before the learned Magistrate at Mumbai. 11. As far as present application is concerned, in view of the facts that the transaction was subject to the jurisdiction of the Court at Mumbai, the head office of the respondent- complainant is situated at Mumbai, cheque was presented at Mumbai and statutory notice was issued from Mumbai, this is not a case where the respondent-complainant in order to harass the applicant filed the case at Mumbai. In my view, the ratio of the cases in K.Bhaskaran and Shamshad Begum (supra) of the Apex Court is squarely applicable to the present case. In any case, the applicant has objected the jurisdiction of the Magistrate's Court at Mumbai at a very belated stage and at an advanced stage of the trial. 12. In the circumstances, I find no merit in the contention of learned counsel for the applicant. I also do not find any error in the orders of Lower Courts to interfere. Accordingly, the criminal application is 8 dismissed. (RANJIT MORE, J.)