1 Cri.WP No.924/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.924 of 2009. 1) R.B. & Company 189-B/b-4, Safadarjung Enclave, New Delhi 110 029. Through its Prop. - Tarun s/o Surendra Kairam. 2) Rarun s/o Surendra Kairam, Age:Major, occu. Business, 189-B/b-4, Safadarjung Enclave, New Delhi 110 029. 3) Surendra s/o Ruliaram Kairam, Age: 59 Yrs., occu. Business, 189-B, Safadarjung Enclave, New Delhi 110 029. - PETITIONERS VERSUS 1) M/s R.G.Nayyar Film’s Through it’s Prop. Ritesh Girdharilal Nayyar, Address – Bldg. No.3-B, Flat No. 503, Patilputra Nagar, New Link Road, Jogeshwari (w) Mumbai. Second Address - C/o Nayyar Traders, Sarjepura, Ahmednagar. 2) The State of Maharashtra - RESPONDENTS ***** Mr.VD Sapkal, Advocate h/for AM Gholap, Adv. for the petitioners; Mr.AP Bhandari, Advocate for Resp.No.1. 2 Cri.WP No.924/2009 Mr.VH Dighe, APP for Respondent No.2/State. ----- CORAM : K.U.CHANDIWAL,J. DATE : 15th March, 2011. JUDGMENT 1) Heard. Rule, made returnable forthwith. Heard finally by consent of parties. 2) The petitioners question propriety of order of issuance of process in proceedings under Section 138 of Negotiable Instruments Act by the Court at Ahmednagar in Summary Trial Case No.591 of 2007 before the learned Judicial Magistrate First Class. 3) There was an agreement dated 2.2.2005 between the petitioners and Respondent no.1, concerning the rights of telecasting of a film. The agreement provided, the exclusive jurisdiction to be at Delhi. The contract period was of 18 months from the date of agreement up to 1st August, 2006 with payment schedule referred therein. There were modified terms dated 11.10.2006 between the parties about the payment already made by the petitioner no.2 and received by the respondent no.1, including condition of presenting the cheque in question for encashment. The cheque in question for Rs.2, 15,000/- was 3 Cri.WP No.924/2009 allegedly post-dated cheque issued on 11.10.2006 by petitioners in favour of Respondent No.1 – R.G.Nayyar Films drawn on A.B.N.Amro Bank branch M-6 Hauz Khas, New Delhi. 4) The said cheque was deposited by Respondent no.1 with his banker, i.e. HDFC Bank Ltd. Lokhandwala Branch, Mumbai for clearance, which was dishonoured, payment being stopped by drawer. Statutory notice in terms of Section 138 of the Negotiable Instruments Act was issued by Respondent No.1 dated 19.12.2006 recording his care of address at Nayyar Traders, Sarjepura, Ahmednagar. 5) The said notice was replied on 20th December, 2006 in the name of petitioner no.1 without any authorized signatory of petitioner no.2, sent at the business address of Respondent no.1 mentioned in the agreement and also at the care of address. Thereafter the complaint was presented before the learned JMFC on 5th February, 2007, who in turn issued process on 6.2.2007. 6) The learned Counsel for the petitioners submits, considering the agreement between the parties, vesting exclusive jurisdiction to Delhi, the cheque being presented at Mumbai, the registered address of Respondent no.1 to be at 4 Cri.WP No.924/2009 Mumbai, the prosecution could not have been initiated before the learned JMFC at Ahmednagar based on care of address, without there being any iota of transaction at Ahmednagar. 7) The learned Counsel took recourse to the judgment of the Hon’ble Apex Court in the matter of Harman Electronics Pvt Ltd and another Vs. National Panasonic India Pvt Ltd reported in 2009 (3) Mh.L.J. 792, to address the point of jurisdiction and submitted that issuance of notice would not by itself give rise to a cause of action, but communication of the notice would give such cause of action. The Court ordinarily will have jurisdiction only where the offence was committed. 8) The learned Counsel for the Respondent No.1 relied to the judgment in the matter of Shamsad Begum Vs. B.Mohammed – 2008 (6) Bom.C.R. 722, wherein, the Hon’ble Lordships of the Apex Court, have discussed completion of offence under Section 138 of the Negotiable Instruments Act, in paragraph 7 as under , - “7. As was noted in K.Bhaskar’s case (supra) 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) 5 Cri.WP No.924/2009 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 15 days of the receipt of the notice.” 9) In paragraph 8, it is observed as under, - “8. 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.” 10) Section 177 of Cr.P.C. deals with jurisdiction of a Court trying the matter. In the present case, the parties were carrying their activities at Mumbai and Delhi though the Respondent No.1 has said that the transactions have taken place at Ahmednagar. However, there is nothing to suggest in this area. Reply notice was sent casually at Ahmednagar address and also at Mumbai. Even letter-head of Respondent No.1, on which notice was issued, was of Mumbai address. 11) Taking these aspects into consideration, 6 Cri.WP No.924/2009 filing of complaint before the learned JMFC at Ahmednagar was improper. The mere address of Ahmednagar in notice, that too care of address, by itself would not bring within the bracket of the jurisdiction to the Court at Ahmednagar, as the facts in Shamsad Begum’s case, deals with other aspects also. The issuance of process, in the instant case, appears to be mechanically done, as it has not been preceded by scrutiny of material on record to find out whether indeed, the offence has been spelt out in the complaint, having taken place at Ahmednagar. 12) In the result, the writ petition is allowed; the proceedings in terms of S.T.C.No. 591/2007 pending on the file of learned JMFC, Court No.1, Ahmednagar under Section 138 of Negotiable Instruments Act, be returned to the complainant (Respondent no.1) in terms of Section 201(A) Cr.P.C. to be presented to the Court of competent jurisdiction. Both the parties to appear before the learned JMFC, Ahmednagar on 30th March, 2011. Rule is made absolute in the aforesaid terms. ( K.U.CHANDIWAL ) JUDGE bdv/fldr.11.3.11