Crl. Misc. No. M-34292 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-34292 of 2010 (O&M) Date of decision: February 7, 2011 Surinder Mohan Singh Chadha ...Petitioner Versus State of U.T. Chanidgarh and another ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Mohinder Kumar, Advocate, for the petitioner. Mr. G.S. Chahal, Advocate, for respondent No.1. Mr. Devinder Lubana, Advocate, for respondent No.2. GURDEV SINGH, J. (Oral) The petitioner, Surinder Mohan Singh Chadha, against whom the criminal complaint has been filed under Section 138 of the Negotiable Instrument Act 1881 (hereinafter referred to as 'the Act'), by Raj Rani- respondent No.2, in the Court at Chandigarh, has filed the present petition under Section 407 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), for transferring the same to the District Courts at Jalandhar, on the ground that the Court at Chandigarh has no territorial jurisdiction to try that complaint. As per the version of the complainant/respondent No.2, as contained in the complaint (Annexure P/1), the accused/petitioner was her employee and approached her for a loan Crl. Misc. No. M-34292 of 2010 2 of ` 6 lakhs. After arranging for those funds, she passed over that amount to the accused as a friendly loan. She requested the accused to re-pay that amount and on her repeated requests he issued a cheque of that amount drawn on Punjab National Bank, Branch Nakodar Road, Jalandhar, and assured that the same will be honoured on its presentment. She presented the cheque to her banker at Jalandhar, but the same was dishonoured on account of 'insufficient funds' in the account of the accused. When she contacted him, he told her to present the cheque again and assured that it will not be dishonoured this time. She again presented the cheque to her banker on 1.7.2009 and 4.7.2009 but the same was again dishonoured on the same ground. On the request of the accused, she again presented this cheque to her other banker Union Bank of India, Chandigarh, but the same was again dishonoured with the same remarks. Then she sent a registered notice to the accused for making the payment of the amount of the cheque but he failed to do so. Thereafter, he presented the complaint before the Judicial Magistrate, Chandigarh. The complainant in her reply to the petition has stated that she complied with all the mandatory provisions of the Act and the court at Chandigarh has the jurisdiction to try the complaint. She is not residing at Jalandhar and is suffering from various ailments. The accused is an active politician and is an influential person. It is well settled that where the cheque is presented for encashment, the courts of that place have the jurisdiction to try the complaint under the Act. I have heard learned counsel for both the sides. The petitioner/accused is seeking transfer of the complaint on the ground that the court at Chandigarh has no territorial jurisdiction to Crl. Misc. No. M-34292 of 2010 3 entertain and try the same. According to Section 407 (1) (c) of the Code, whenever it is made to appear to the High Court that an order under this section is required by any provision of this Code, it may pass an order that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence. Thus, this Court is competent to transfer the complaint on account of lack of territorial jurisdiction on the part of some court within its jurisdiction. According to the learned counsel for the accused, the court at Chandigarh could not be conferred jurisdiction by presentment of the cheque at Chandigarh. The drawee had no account in the bank at Chandigarh and such account was held by her only in the bank at Jalandhar. Therefore, only the court at Jalandhar has the territorial jurisdiction to entertain and try the complaint. In support of that submission, he has placed reliance on Times Business Solution Limited Versus Debayan Bagchi (Crl. M.C. No. 280/2010 decided on 1.2.2010 by the High Court of Delhi) and V.S. Thakur versus State and another (Crl. M.C. 2854/2009 & Crl. M.A. 9663/2009 decided on 7.12.2009 by High Court of Delhi). He also submitted that the notice of demand having been sent from Chandigarh will not confer jurisdiction on the courts at Chandigarh. In support of that contention, he has relied upon the judgment of Hon'ble Supreme Court in M/s Harman Electronics (P) Ltd. and another v. National Panasonic India Ltd., 2009 (1) R.C.R. (Criminal) 458. According to him, when the complaint could not have been filed at Chandigarh, the same is liable to be transferred to the District Courts at Jalandhar, as only the court at that place has the territorial jurisdiction. Crl. Misc. No. M-34292 of 2010 4 To counter these submissions of the learned counsel for the accused, it has been submitted by the learned counsel for the complainant that the place where the cheque is presented for encashment and is dishonoured has also the jurisdiction to entertain and try the complaint under Section 138 of the Act. Even that court has the jurisdiction to entertain such a complaint within whose jurisdiction the statutory notice has been sent and received. In support of his contention, he relied upon K. Bhaskaran vs Sankaran Vaidhyan Balan & Anr. 1993 (3) Civil Court Cases 385 (S.C.), Smt. Shamshad Begum versus B.Mohammed 2009 (3) RCR (Criminal) 359 and Patiala Casting P. Ltd. & Ors. Versus Bhushan Steel Ltd. 2011 (1) RCR (Civil) 337. For the purposes of territorial jurisdiction, the components of the offence under Section 138 of the Act were defined in K. Bhaskaran's case (supra). It was held therein that the following are the acts which are components of that 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; and (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It was further held that it was 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 five different localities and if those five different acts have been done in five different localities, any one Crl. Misc. No. M-34292 of 2010 5 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. The complainant can choose any one of those courts having jurisdiction over anyone of the local area within the territorial limits of which any one of those five acts was done. So far as the presentment of the cheque to the bank is concerned, this court is bound by the law laid down by the three Judge Bench of the Hon'ble Supreme Court reported in 2001 Crl. L.J. 1250 (Shri Ishar Alloys Steels Ltd. v. Jayaswals NECO Ltd.), upon which reliance was placed by the Delhi High Court in the above referred judgments. It was held therein that to make an offence under Section 138 of the Act, it is mandatory that the cheque is presented to “the bank” within a period of six months. The use of words “a bank ” and “the bank” in the section is an indicator of the intention of the legislation. The position was made clear by holding that it does not mean that the cheque is always to be presented with the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank. Thus, the judgment of the Hon'ble Supreme Court deals with the criminal liability which arises after the presentment of the cheque to the drawer's bank and does not deal with the territorial jurisdiction. Iit was held in V.S. Thakur's case (supra) that deposit of the cheque in Delhi would not confer jurisdiction on Delhi court to try the complaint under Section 138 of the Act. In that case the drawee had no account in the bank at Delhi. Similar proposition of law was laid down in Times Business Solution Ltd.'s case (supra). However, in Patiala Casting P. Ltd's case (supra), a different view was held by Delhi High Court. In that case the cheque was Crl. Misc. No. M-34292 of 2010 6 drawn on Gobindgarh Bank and the complainant presented the cheque for collection at Delhi and was dishonoured. It was held that the Delhi court has the jurisdiction to try that complaint. In Shamshad Begum's case (supra), the parties entered into a contract at Bangalore and the cheque was issued by the accused drawn on Bangalore Bank, which was dishonoured. The parties were residing at Mangalore and the notice demanding payment was also issued to the accused at his Mangalore address, who sent reply to the same from that place. It was in those circumstances that it was held that Mangalore court has the jurisdiction. Learned counsel for the petitioner also tried to place reliance on ICICI Bank Ltd. versus Subhash Chand Bansal 2009 (160) D.L.T. 379. In that case, the courts at Delhi were held not to have jurisdiction to entertain the complaint under Section 138 of the Act on the ground that the accused were residing out side the territorial jurisdiction of those courts and their bank was also beyond the territorial jurisdiction of that court. While recording finding in favour of the accused, reliance was placed on the judgment of the Hon'ble Supreme court in Harman Electronics's case (supra). That question was never involved before the Hon'ble Supreme Court. The question of territorial jurisdiction was involved on the basis of the notice having been received at a particular place and not regarding the banker of the accused being within the local limits of jurisdiction to a particular court. In that case, it was held that it is the receipt of notice, which would ultimately give rise to the cause of action for filing a complaint, as it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. In that case the cheque in question was issued at Chandigarh and was presented for payment at that place, though Crl. Misc. No. M-34292 of 2010 7 for collection it was sent to Delhi. Notice was issued from New Delhi. It was held therein that merely on that ground it cannot be held that the Delhi court had the jurisdiction to try the case and the complaint was ordered to be transferred to Chandigarh. In view of the above discussed law and the fact that the cheque was presented for encashment at Chandigarh and the statutory notice was sent from Chandigarh, it is concluded that the court at Chandigarh has also the jurisdiction and it cannot be said that only the court at Jalandhar, where other parts of the cause of action had taken place, had the territorial jurisdiction. No ground for transfer is made out. Dismissed. January 7, 2011 (GURDEV SINGH ) prem JUDGE