1 WP2346/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2346 OF 2010 Tanaji A. Patil (Kalkutaki) ..... Petitioner. V/s Mrs. Punam Prakash Patil and Anr. ..... Respondents. Mr. U.B. Nighot for the Petitioner. Mr. Prashant More for Respondent No.1. Mrs. M.R. Tidake, APP for Respondent – State. CORAM: V. M. KANADE, J. DATE : 20th October, 2010 P.C.:- 1. Heard the learned Counsel for the Petitioner and the learned Counsel appearing on behalf of Respondent No.1. 2. Petitioner is the original accused. He is challenging the order of issuance of process passed by the learned Judicial Magistrate, First Class, Karad, Satara who was pleased to reject the application filed by the Petitioner for return of complaint to the original complainant for being presented before the proper court at Pune. 3. Brief facts are as under:- 2 WP2346/10 4. On 22/5/2008, Respondent No.1 filed Criminal Case No. 762 of 2008 under section 138 of the Negotiable Instruments Act and under section 420 of the Indian Penal Code. Application was filed by the Petitioner dated 17/4/2009 raising an issue of territorial jurisdiction. 5. Petitioner is carrying on business of sale and purchase of plots by name Mauli Krupa Agency at Sangavi, Pune. Respondent No.1 and her husband wanted to purchase plot for constructing their house at Pune and made inquiries with the Petitioner and they accordingly paid an amount of Rs 3 lakhs in cash to the Petitioner as an earnest money and agreed to pay balance amount on the date of the transaction after they had approved the plot at Kashidnagar, Pune. However, the transaction did not materialize. It was alleged that the Petitioner did not return the amount of Rs 3 lakhs. 6. According to Respondent No.1, Petitioner issued a cheque dated 31/3/2008 of Rs 3 lakhs drawn on Suvarnyug Sahakari Bank Limited in favour of Respondent No.1. When the said cheque was deposited by Respondent No.1 in her Bank viz Satara District Central Co-operative Bank, Branch Malkapur at Karad, it was dishonoured. A demand notice was issued and was served on the Petitioner. However, on non-payment of the said amount, a complaint was filed before the Judicial Magistrate, First Class at Karad, District Satara. 3 WP2346/10 7. The learned Counsel appearing on behalf of the Petitioner relied upon the judgment of this Court in Ahuja Nandkishore Dongre v. State of Maharashtra and Anr.1. He also relied upon the judgment of the Apex Court in M/s Harman Electronics Private Limited and anr. vs. M/s National Panasonic India Limited2 and the judgment of the another learned Single Judge of this Court in Dipti Kumar Mohanty, Dist. Nayagarh, Orissa vs. Videocon Industries Ltd., Ahmednagar, Maharashtra3. It is submitted that merely because the cheque was deposited at Karad and notice was issued at Karad, the Court would not have jurisdiction to try and decide the said case since the cause of action has arisen in Pune, the Bank of the accused was situated at Pune and the cheque also was drawn on the Bank situated at Pune. 8. It is not possible to accept the submission made by the learned Counsel appearing on behalf of the Petitioner. The Division Bench of this Court in Preetha S. Babu, Ernakulum vs. Voltas Ltd. Chochin and another4 has held that the complaint could be filed where the collecting Bank is situated. In the said judgment, the Division Bench has referred to para 9 of the judgment of the Apex Court in Shri Ishar Alloys Steel Ltd. vs,. Jayaswals NECO Ltd.5 wherein it has been held that the payee has an option to present the 1 2007 CRI. L.J. 115 2 2009(3) Mh. L.J. (S.C.) 792 = 2009 AIR SCW 410 3 2009(5) Mah. L.J. 273 4 2010(3) Mh.L.J. 234 5 AIR 2001 SC 1161 4 WP2346/10 cheque in any Bank including collecting Bank where he has his account. Para 9 of the said Judgment of the Supreme Court in Shri Ishar Alloys Steel Ltd (supra) reads as under:- “9. It, however, does not mean that the cheque is always to be presented to 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 where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheuqe is drawn within the period of six months from the date on which it is shown to have been issued. In other words, a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to the (C) bank. The non-presentation of the cheque to the drawee-bank within the period specified in 5 WP2346/10 the section would absolve the person issuing the cheque of his criminal liability under section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in civil action initiated under the law. A combined reading of sections 2, 72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee.” In that case, the question before the Apex Court was regarding determination of a period of validity of the cheque. In that context, the Apex Court has held that the cheque had to reach drawee Bank within six months from the date on which it was issued and it was not sufficient to deposit the cheque in the collecting bank before expiry of six months and, in that context the Apex Court has considered the use of the words “a bank” and “the bank”. 9. Further, the Apex Court in Shamshad Begum (Smt) vs. 6 WP2346/10 B. Mohammed1 has followed the decision in K. Bhaskaran vs. Sankaran Vaidhyan Balan2 and observed in paras 8 and 9 as under:- “8. As was noted in K. Bhaskaran case 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)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.” “9. 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.” 1 (2008) 13 SCC 77 2 (1999) 7 SCC 510 : 1999 SCC (Cri) 1284 7 WP2346/10 10. In my view ratio of the judgment in Ahuja Nandkishore Dongre.1 (supra) will not apply to the facts of the present case. In the said case, the complainant was neither residing at the place where the complaint was filed nor was carrying on business there nor was it his principal place of business and, therefore, under those circumstances the learned Single Judge held that the Court before which the complaint was filed did not have jurisdiction to try and decide the case. So far as the Judgment in M/s Harman Electronics Private Limited and anr2(supra) is concerned, in that case, again, the facts were entirely different. A notice was issued from Delhi Head Office. The entire transaction had taken place at Chandigarh. In case of other three cheques which were dishonoured, complaints were filed at Chandigarh. It was not established by the complainant that the cheques were presented at Delhi and, under those circumstances, the Supreme Court observed that Delhi Court did not have jurisdiction to try and decide the criminal case. In my view, ratio of the judgments in K. Bhaskaran3 (supra), in Shamshad Begum (Smt)4 (supra) and in Preetha S. Babu, Ernakulum5 (supra) would square apply to the facts of the present case. Hence, there is no merit in the submissions made by the learned Counsel appearing on behalf of the 1 2007 CRI. L.J. 115 2 2009(3) Mh. L.J. (S.C.) 792 = 2009 AIR SCW 410 3 (1999) 7 SCC 510 : 1999 SCC (Cri) 1284 4 (2008) 13 SCC 77 5 2010(3) Mh.L.J. 234 8 WP2346/10 Petitioner. No case is made out for interfering with the order passed by the learned Magistrate. Petition is, therefore, dismissed. 11. The Petitioner, however, is exempted from appearing in the Trial Court. If his plea is not already recorded, it may be recorded through his advocate and his statement under section 313 of Cr.P.C. may also be recorded through his advocate, provided he gives an undertaking to the Court that he will not dispute his identity and the correctness of the answers given to the questions in the statement recorded under section 313 of Cr.P.C. The learned Magistrate may follow the procedure prescribed in the amended section 313 sub-clause (5) of the Cr.P.C. (V.M. KANADE, J.) 9 WP2346/10