ssm 1 6.appln.341.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 341 OF 2009 Mr. T. Raphael ....Applicant Versus State of Maharashtra and others ....Respondents ____________ Shri. Joseph G. Thatil i/by M/s. Thattil & Co. for the Applicant. Shri. S. A. Shaikh, APP for the Respondent No. 1 State. S/Shri. R. D. Soni i/b Lalit Jain for the Respondent No. 2. CORAM: J. H. BHATIA, J. DATED : 11 TH APRIL, 2011. P.C.: 1. Heard the learned Counsel for the parties. The Applicant, who is original Accused in Case No. 6018/SS/2005 pending before the Metropolitan Magistrate, Esplanade, Mumbai under Section 138 of the Negotiable Instruments Act, has challenged the jurisdiction of Metropolitan Magistrate, Mumbai to entertain the complaint. 2. According to the Applicant, he is carrying on business and is situated at North Parul in Kerala. He had some business ssm 2 6.appln.341.09 transactions with the Complainant -Respondent No. 2 at North Parul, where the Complainant has his full fledged branch office. The goods were supplied to the Applicant at North Parul and there only he had issued the disputed cheque to the Complainant against his account maintained with the ICICI Bank at North Parul as a security and not for discharge of liability. As the cheque was dishonoured, a notice was issued from Mumbai where the head office of the Complainant is situated. According to him, merely because a notice was issued from Mumbai, the Court at Mumbai does not have jurisdiction to entertain the complaint. 3. According to the Complainant, the cheque was issued for discharge of the legally enforceable liability towards the price of goods supplied. It is contended that the cheque was payable at par at all branches of the ICICI Bank and therefore, the cheque could be presented at any branch for encashment. Accordingly, the cheque was presented at Mumbai, Free Press House Branch and it was returned dishonoured through the Corporation Bank, ssm 3 6.appln.341.09 Mumbai, which is the banker of the Complainant and therefore, the Complainant had issued notice from Mumbai for making the payment at Mumbai. The learned Counsel for the Respondent contended that in view of the judgment in K. Bhaskaran V/s. Sankaran Vaidhyan Balan reported in 1999 (7) SCC 510 as well as the judgment of this Court in Subhiksha Trading Services Limited Vs. Kotak Mahendra Bank Ltd, Mumbai reported in 2011 (2) Mh.L.J. 353, the Mumbai Court has jurisdiction to entertain the complaint. 4. Whether the cheque was issued only as a security or was issued for discharge of legally enforceable liability can be considered only at the time of trial and not in this application under Section 482 of the Indian Penal Code. In this application only we have to find out whether prima-facie the Metropolitan Magistrate at Mumbai has jurisdiction or not to entertain the complaint. 5. In K. Bhaskaran (supra), the Supreme Court observed thus: ssm 4 6.appln.341.09 “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 prepetrated 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 of 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 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 any 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 areas 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. ” ssm 5 6.appln.341.09 6. In the present case, the cheque was drawn at North Parul by the Accused on his account maintained with the North Parul Branch of the ICICI Bank. However, the copy of the cheque shows that the cheque was payable at par at all branches of ICICI Bank mentioned overleaf. Mumbai Free Press House branch was one of them. Therefore, the cheque could be presented for encashment at Mumbai branch of the ICICI Bank. Had it been payable only at the North Parul branch where the account of the Accused is maintained and against which the cheque was issued, matter would be different. Even though the transactions between the parties had taken place in Kerala, still the cheque, which was issued, was payable at par of all the branches of the ICICI Bank. Therefore, the payee could present the cheque at any of branches for encashment. The cheque was presented by the Complainant at Mumbai. The cheque was dishonoured at Mumbai and intimation of the same was given to the Complainant at Mumbai. After the cheque was dishonoured, the notice for payment was issued by the ssm 6 6.appln.341.09 Complainant from Mumbai, where it has its head office and required the Accused to make payment at Mumbai, which he failed. In view of these facts, out of the five components as narrated in the case of K. Bhaskaran (Supra), four had taken place at Mumbai. In the similar circumstances, in the case of Subhiksha (Supra), this Court had held that where the cheque was payable at par and was presented at the branches of the drawee bank at Mumbai and the notice was issued from the registered office of the Complainant at Mumbai, Court at Mumbai has jurisdiction. 7. In view of the peculiar facts of this case, the authority in M/s. Harman Electronics (P) Ltd. v. National Panasonic India Ltd. 2009 All. M.R. Criminal 280 (S.C.), will not be applicable. In that case, the question was, if the company has head office at one place and branches at different places and whole of the transaction had taken place within the area where its branch is situated and not where the head office is situated, whether the notice could be issued from the place where its head office is situated. In that case, ssm 7 6.appln.341.09 accused/appellant was resident at Chandigarh and was carrying on business at Chandigarh. Complainant had its head office at Delhi but also had branch office at Chandigarh. Transaction between the parties had taken place at Chandigarh and the accused had issued cheque in favour of the complainant at Chandigarh against its banker situated at Chandigarh and thus, the bank at Chandigarh was drawee bank. However, the complainant deposited the cheque with its banker at Delhi, which in turn presented the same to the drawee bank at Chandigarh. Cheque was dishonoured and the complainant issued a notice for payment from Delhi. As the payment was not made, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act before the Magistrate at Delhi. The Supreme Court held that a company or financial institution having several branches has to file the complaint at the place where the transaction had taken place, cheque was drawn, presented and dishonoured and that merely because company issued a notice from the place where its head ssm 8 6.appln.341.09 office is situated and where no part of the transaction had taken place, it could not file the complaint before the Magistrate having jurisdiction over the area where the head office is situated. As in the present case, the cheque was payable at par at all branches, the facts of this case are different from the facts of the M/s. Harman Electronics. 8. In view of the facts and the legal position noted above, it must be held that Metropolitan Magistrate, Mumbai has jurisdiction to entertain the complaint. 9. In view of the above, this application stands rejected. (J. H. BHATIA, J.)