IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 10.06.2010 CORAM THE HONOURABLE MR.JUSTICE S. TAMILVANAN W.P. No.33567 of 2006 and M.P.No.1 of 2006 S.P. Lakshmanan .. Petitioner -vs- 1. The Judicial Magistrate, First Class Court No.3, Pune, Maharashtra State 2. Kotak Mahindra Bank Ltd., Saral Auto Loans-Chennai, 1st Floor, Ceebros Centre, No.39, Montieth Road, Chennai-8 .. Respondents Writ Petition filed under Article 226 of Constitution of India to issue a writ of declaration or any other appropriate order in the nature of writ, declaring that the proceeding pending on the file of the first respondent in S.C.C. No.18814/2006 as null and void or in the alternative to transfer the above proceeding to any competent Judicial Magistrate at Chennai. For Petitioner : Mr. S. Kamadevan For Respondents : Mr. R. Umashankar for R2 O R D E R The writ petition has been filed, seeking an order to issue a writ of declaration or any other appropriate order in the nature of writ, declaring that the criminal proceeding pending before Judicial Magistrate No.3, Pune, the first respondent herein in S.C.C. No. 18814/2006 as null and void or in the alternative to transfer the aforesaid criminal case to any competent Judicial Magistrate at Chennai. 2. Mr.S.Kamadevan, learned counsel appearing for the petitioner submitted that the second respondent had given financial assistance to the petitioner to the tune of Rs.3,40,000/- for purchase of used Toyota Qualis Car, bearing Regn. No.TN21-R-5702. The aforesaid amount shall be repaid in 35 monthly instalments at the rate of Rs.12,850/-, inclusive of interest payable on the principle amount and for prompt repayment, the second respondent collected 18 post dated cheques for a sum of Rs.12,850/- each from the petitioner herein payable on 20th of https://hcservices.ecourts.gov.in/hcservices/ every month commencing from February 2005. According to the petitioner, he had paid instalments initially for five months and for which, post dated cheques were honoured. Subsequently on 31.08.2005, the petitioner voluntarily surrendered the vehicle to the second respondent with an assurance that he would take back the vehicle after clearing the dues for the default period. However, due to the dishonour of other cheques, the second respondent initiated proceeding under Section 138 of the Negotiable Instrument Act and now the criminal proceeding is pending before the Judicial Magistrate, First Class Court No.3, Pune, Maharashtra State, which is sought to be declared null and void or alternatively to transfer the case to any competent Judicial Magistrate Court, Chennai, under the supervisory jurisdiction conferred under Article 226(2) of the Constitution of India. 3. Mr.R.Uma Shankar, learned counsel appearing for the second respondent submitted that the writ petition itself is not legally maintainable, on the ground that the legal action initiated under Section 138 of Negotiable Instruments Act, could not be challenged by way of filing writ petition under Article 226, by the petitioner, who has admitted the issuance of the dishonoured cheques. In support of his contention, the learned counsel appearing for the second respondent relied on the decision of the Apex Court in K. Bhaskaran vs Sankaran Vaidhyan Balan and others, reported in 1999 (7) SCC 510 and also the decision of a Division Bench of this Court in Rajchand Tea Industries vs Judicial Magistrate Class First, Raipur, reported in 2007 (3) CTC 705. 4. In K. Bhaskaran vs Sankaran Vaidhyan Balan and others, reported in 1999 (7) SCC 510, the law laid down in clear terms by the Hon'ble Supreme Court is as follows: "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 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 https://hcservices.ecourts.gov.in/hcservices/ extracted below: "178. (a) – (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 anyone 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 anyone of those Courts having jurisdiction over anyone of the local areas within the territorial limits of which anyone 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." 5. In the instant case, the petitioner herein has stated that the second respondent cannot file complaint under Section 138 of Negotiable Instruments Act before the Judicial Magistrate Court No.3, Pune in Maharashtra State, on the ground that the transaction had taken place at Chennai. According to him, the second respondent who collected 19 post dated cheques from the petitioner seems to have presented some of the cheques for collection through a Bank at Pune in Maharashtra State and the petitioner has also disputed the interest payable thereon. As held by the Division Bench of this Court, in Rajchand Tea Industries vs Judicial Magistrate Class First, Raipur, reported in 2007 (3) CTC 705, it is open to the drawee to choose any one of the places for the purpose of registering his complaint, under Section 138 of Negotiable Instruments Act, based on the cause of action. It is not in dispute that the post dated cheques issued by the petitioner, were dishonoured by the concerned Bank due to 'insufficient funds' in the Bank account of the petitioner. If the petitioner has any legal grounds to quash the proceeding, he could have approached only the Bombay High Court, which has superintending power over the Judicial Magistate First Class, Court No.3, Pune, State of Maharashtra. The criminal action initiated under Section 138 of the Negotiable Instruments Act, pending before the Judicial Magistrate, Pune, Maharashtra state, cannot be challenged by way of filing writ petition before this Court, under Article 226 of the Constitution of India, as this Court has no supervisory jurisdiction over the Judicial Magistrate court, Pune in Maharashtra State. 6. A combined reading of clauses (1) and (2) of Article 226 of the Constitution, would establish that writ can be issued against a Government, person or authority if (1) its seat is within the High Courts jurisdiction or (b) the cause of action has https://hcservices.ecourts.gov.in/hcservices/ arisen, wholly or in part within the High Court's jurisdiction, if it is otherwise maintainable. 7. In the instant case, the proceeding pending under Section 138 of the Negotiable Instruments Act is the Judicial Magistrate's Court, Pune, which is not under the territorial jurisdiction of the High Court of Madras. It is not in dispute that the Bombay High Court is having supervisory jurisdiction over the Judicial Magistrate's Court, Pune. Hence, even for seeking the remedy under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution, the petitioner could have approached only the Bombay High Court, having supervisory jurisdiction over the Magistrate Court, Pune. Similarly, the writ petitioner cannot seek an order from this Court to transfer the proceeding, which is pending on the file of the Judicial Magistrate, Pune to any Judicial Magistrate Court at Chennai, as the same is not legally maintainable, for want of jurisdiction. 8. The powers conferred upon the High Courts to issue writs under Article 226 of the Constitution is extra ordinary and discretionary in nature and hence, existence of an alternative remedy is a relevant factor to be considered while exercising the power. When an alternative and equally efficacious remedy is available to a litigant, the party should pursue that remedy and may not invoke the special jurisdiction of the High Court to issue a prerogative right. As contemplated under clause 1 of Article 226 of the Constitution, every High Court shall have powers to issue directions, orders or writs through out the territories, in relation to which it exercises jurisdiction to any person or authority. 9. In Union of India vs. C.L.Jain, reported in (1996) 84 ELT 17 (SC), it has been held by the Hon'ble Supreme Court that if an aggrieved person has right to file an Appeal or Revision Petition under a relevant statute, the High Court may refuse to entertain a petition under Article 226, on the ground of proper, efficacious and statutory remedy available to the petitioner. 10. In Titaghur Paper Mills vs. State of Orissa, reported in 1983 (2) SCC 433, the Hon'ble Apex Court has held that every High Court has power to issue writs, directions or orders under Article 226 for two purposes, namely : (1) for the enforcement of fundamental rights; and (2) for any other purpose, regarding protection of fundamental rights, hence, like the Supreme Court, High Court is also bound to enforce and protect fundamental rights. However, with regard to the rights other than fundamental rights, the jurisdiction of the High Court is discretionary and normally a High Court would not exercise its extraordinary jurisdiction under Article 226 when an alternative, suitable, adequate and equally efficacious remedy is available to the aggrieved person. 11. In Central Coalfields Ltd., vs. State of Jharkhand reported in 2005 (7) SCC 492, the Hon'ble Apex Court has held that https://hcservices.ecourts.gov.in/hcservices/ where a statute creates a right or liability and also prescribes the remedy or procedure for the enforcement of that right or liability, resort must be had to the said statutory remedy before invoking extraordinary and prerogative jurisdiction of a High Court, under Article 226 of the Constitution. 12. Under Article 226 of the Constitution, the High Court may exercise its extraordinary jurisdiction against Government or any authority within its territorial limits or if cause of action partly or wholly has arisen within the territorial limits of the High Court. 13. In the instant case, the criminal proceeding initiated under Section 138 of NI Act is pending before the Judicial Magistrate No.3, Pune, Maharashtra State, against which the petitioner has filed the writ petition by invoking Article 226 of the Constitution of India, though there is lack of territorial jurisdiction. As it is a legal proceeding under challenge, when statutory remedies are available under Section 482 Cr.P.C, the petitioner is not entitled to file any writ petition, invoking Article 226 of the Constitution, on account of the efficacious statutory remedy available to the petitioner to ventilate his grievance before appropriate forum. Writ Petition being filed under Article 226 cannot be entertained, when there is proper, efficacious and statutory remedy available to challenge the criminal proceeding under Section 482 of the Code of Criminal Procedure and also under the power of superintendence over all courts and tribunals through out the territories available to the High Court of Bombay, which exercises jurisdiction under Article 227 of the Constitution. Hence, the petitioner herein is not entitled to seek the relief in this writ petition filed before this Court, under Article 226 of the Constitution, as it is clear that this writ petition has no legs to stand. Filing a writ petition without territorial jurisdiction, when efficacious statutory remedy is available would also be construed only as abuse of process of Court. In such circumstances, I am of the considered view that this writ petition is liable to be dismissed, as legally not maintainable. 14. In the result, the Writ Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsvn To https://hcservices.ecourts.gov.in/hcservices/ The Judicial Magistrate, First Class Court No.3, Pune, Maharashtra State SSK(CO) km/1.7. W.P. No.33567 of 2006 https://hcservices.ecourts.gov.in/hcservices/