1 26 wp 2760.09 2761.doc srk- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2760 OF 2009 AND WRIT PETITION NO. 2761 OF 2009 M/s. KMI Business Tech Pvt. Ltd. a private Limited company registered under the Companies Act, 1956 through its Director Mr. Nilesh Shah Having its registered office at 1008, Dalamal House, Nariman Point, Mumbai – 400 021. .. Petitioner Versus 1 Angel Systems India Private Limited, a company registered under the Companies Act, 1956 having its office at 11, Sri Ranga Majestic Avenue, MTP Road G.N.Mill Post, Coimbatore – 641 029. 2 R.Vijaya Lakshmi w/o Ravi Shankar, A Director of the Accused no.1 having her Address at 11, Sri Ranga Majestic Avenue, MTP Road, G.N.Mill Post, Coimbatore – 641 029. 2 26 wp 2760.09 2761.doc 3 R. Malal w/o O.W. Ravichandran, A Director of the Accused No.1 residing at No.2/8, Appey Gounder Street, Thudiyalur, Coimbatore – 641 034. 4 State of Maharashtra .. Respondents Mr. Arun Mehta a/w Ms. Sonali Patil i/b Akshar Laws for the Petitioner. Ms. Sharmila Kaushik a/w Mr. Satyanarayanan for the Respondent no.2. Mr. Y.S.Shinde, A.P.P. for the Respondent no.4/State CORAM : J. H.BHATIA, J. DATE : 18TH AUGUST, 2010 COMMON JUDGMENT: 1 Both the Petitions may be disposed off by the common judgment as the parties, facts as well as legal position involved in both the matters is same. 2 Rule, Rule made returnable forthwith. Heard. 3 Both these Writ Petitions are filed by the original complainant. The Complainant, having its head office at Nariman Point, Mumbai, had suppled certain goods to the Respondent no.1 which is situated at Coimbatore. The Respondent no.1 had issued six cheques for different amounts and of different dates, against its account maintained with Jammu 3 26 wp 2760.09 2761.doc & Kashmir Bank Ltd., Coimbatore Branch, Tamil Nadu. The cheques were deposited by the Petitioner/Complainant with its Banker and the cheques were returned unpaid for want of sufficient funds. Inspite of notice, the payment was not made. In view of the facts, the Petitioners filed two complaints under section 138 of the Negotiable Instruments Act; each was in respect of three cheques. On the basis of those complaints Criminal Case No.1577/SS/2007 and Criminal Case No.1578/SS/2007 came to be registered. The Additional Chief Metropolitan Magistrate 23 rd Court, Esplanade, Mumbai issued process in both the cases. During the trial it was pointed out that the complainant had deposited the said cheques with HDFC Bank, Chandivali Branch and through that Bank intimation was received that the cheques were returned unpaid for want of sufficient funds. In view of this, Application was made by the Accused before the trial court in both the cases that the court of Metropolitan Magistrate at Esplanade, Mumbai has no jurisdiction and that the Court of Metropolitan Magistrate at Andheri will have jurisdiction to hear the complaints because Chandivali is located within the territorial jurisdiction of Andheri Court. That contention was accepted by the learned Metropolitan Magistrate 23 rd Court, Esplanade, Mumbai and he directed that the complaint be returned for presentation before the proper court. That order was challenged by the Petitioner but the Revision Application Nos.1154 of 2008 and 1155 of 2008 came to be dismissed. 4 26 wp 2760.09 2761.doc 4 The learned counsel for the Petitioner contended that both the courts below committed error in holding that the Metropolitan Magistrate, Esplanade, Mumbai has no jurisdiction. According to him the head office of the complainant is situated at Nariman Point and from that office notice was issued and communication that the cheque was dishonoured was also received by the complainant at Nariman Point and therefore, the Metropolitan Magistrate, Esplanade, Mumbai, within whose territorial jurisdiction Nariman Point is situated, has jurisdiction to entertain the matter. 5 In K. Bhaskaran vs. Sankaran Vaidhyan Balan, (1999) 7 SCC 510, the Supreme Court observed thus: “14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. 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. 5 26 wp 2760.09 2761.doc 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 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act. In this context a reference to Section 178(d) of the Code is useful. It is extracted below: Where the offence 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 done in five different localities by 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 area 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.” 6 26 wp 2760.09 2761.doc 6 In Jinraj Paper Udyog vs. Dinesh Associates and Another, 2009 (2) Bombay C.R. 81, the learned Judge of this Court observed thus: “6. Since “the payee” is required to issue a notice demanding payment, such place of giving notice would be where, if payee is a company (or other registered establishment) it has a registered office, and in other cases, normally, where the payee ordinarily resides or work for gain, and not any place from where the payee may choose to despatch a notice.” 7 It has been consistently held by this Court that if the payee is a company having its registered office, the notice can be issued by the payee demanding the payment from the place where its registered office is situated. 8 In Harman Electronics (P) Ltd. vs. National Panasonic India Ltd. 2009 (1) ALL MR (Cri) 280, the Supreme Court held that where a company has its branch office also at a place other than the place where its head office is situated and all the transactions had taken place where its branch office is situated; the drawer is also situated in that area; cheque was issued against the Bank where the branch office is situated; the cheque was presented at that place and it was also dishonoured there, the 7 26 wp 2760.09 2761.doc complaint should also be filed where the branch office is situated. However, if the company does not have the branch office, where the drawer is situated, the notice can be issued from the place where the head office is situated. On facts Harman Electronics (P) Ltd. case is not applicable to the present case. Even though in the present case, some part of the transaction has taken place at Coimbatore, the accused had also made an application before the trial court contending that the jurisdiction will be with the Court of Metropolitan Magistrate at Andheri within whose jurisdiction the complainant’s Banker is situated and where the cheque was presented. Infact, the presentation of the cheque is always to the drawee bank. In the present case, drawee bank is situated at Coimbatore and not at Chandivali. The HDFC Bank, Branch Chandivali that is the Banker with whom the cheque was deposited by the complainant was only acting as an agent for the complainant to present the cheque with Jammu & Kashmir Bank, Coimbatore Branch for the purpose of encashment, the cheque was dishonoured at Coimbatore and only intimation was received at Nariman Point, Mumbai. However, in view of the authority in K. Bhaskaran (Supra) and Jinraj Paper Udyog (Supra) the complainant could issue notice from the place where its head office is situated and that place is at Nariman point, Mumbai. It was totally irrelevant with which bank the cheque was deposited by the complainant for the purpose of presentation to the drawee bank. Therefore, it could not be said that the Metropolitan Magistrate at Andheri, within whose local jurisdiction Chandivali is situated has 8 26 wp 2760.09 2761.doc jurisdiction. In view of the facts and legal position, I find that both the courts below committed an error in passing the impugned order. 9 In view of the above circumstances, the Petition is allowed, the impugned orders are set aside, the Metropolitan Magistrate 23 rd Court, Esplanade, Mumbai shall proceed with the trial of both the cases. 10 Rule made absolute accordingly. (J.H.BHATIA, J.)