Nishant Aggarwal vs Kailash Kumar Sharma

Limited and his father Mr. B.L. Aggarwal is the Managing Director of M/s Mechfeb Engineering Industries Private Limited situated at Meghalaya and Guwahati. The respondent was associated with both the abovementioned firms as he used to bring business from various private firms and Government Departments on commission basis.

b) During the course of business, the appellant herein issued a post- dated cheque bearing No. 925504 dated 01.08.2009 drawn on Standard Chartered Bank, Guwahati, for Rs. 28,62,700/- in favour of the complainant- respondent herein in order to discharge his legal enforceable liabilities. Vide letter dated 21.01.2006, the appellant informed the Branch Manager, Standard Chartered Bank, Guwahati, as well as the officer in-charge, Dispur Police Station, Guwahati regarding missing of the said cheque. Thereafter, on 28.03.2008, the appellant wrote a letter to the Standard Chartered Bank for stop payment of the said cheque as the same was missing.

c) According to the respondent, on 13.08.2009, when he presented the same for collection through its bankers, viz., Canara Bank, Bhiwani, Haryana, it was returned unpaid on 11.09.2009 due to stop payment by the appellant. When the respondent approached the appellant about dishonour of the same, he was told to present the same again for collection after one month. On 15.10.2009, the respondent again presented the cheque for collection but the same was again returned unpaid on 14.12.2009.

d) On 11.01.2010, the respondent sent a legal notice to the appellant asking him to pay Rs. 28,62,700/- within a period of 15 days from the date of the receipt of the notice along with the interest, failing which, he shall be liable to be prosecuted under Section 138(b) of the N.I. Act.

e) On 05.02.2010, the appellant herein filed a complaint petition being C.R. No. 340 of 2010 in the Court of Addl. Chief Judicial Magistrate, Kamrup at Guwahati under Sections 379, 381,411 and 420 of the Indian Penal Code, 1860 (in short “the IPC”) against the respondent. On 05.03.2010, the respondent filed a complaint being C.R. No. 9 of 2010 before the Court of J.M.I.C., Bhiwani under Section 190 of the Code for taking cognizance of the offence committed by the appellant under Sections 138 and 141 of the N.I. Act.

f) The Additional Chief Judicial Magistrate, Kamrup, by order dated 15.06.2010, in C.R. No. 340 of 2010, issued bailable warrants against the respondent. Thereafter, on 06.08.2010, the respondent filed an application for recall of the bailable warrants issued against him. Ultimately, learned Judicial Magistrate, Bhiwani, vide order dated 05.03.2011, accepted the application with the observation that the Court at Bhiwani has no jurisdiction and the complaint was returned for presentation before the proper Court having jurisdiction.

h) Aggrieved by the said order, the appellant herein filed Crl. Misc. No. M-32542 of 2011 before the High Court. The High Court, by impugned order dated 31.10.2011, dismissed the petition.

7) We have already narrated the case of both the parties in the pleadings portion. In order to answer the only question, it is relevant to note that the undisputed facts in the context of territorial jurisdiction of the learned Magistrate at Bhiwani are that the drawee of the cheque i.e., the respondent/complainant is a resident of Bhiwani. The native village of the respondent, namely, village Barsana is situated in District Bhiwani. The respondent owns ancestral agricultural land at village Barsana, District Bhiwani. It is also asserted that the respondent is running his bank account with Canara Bank, Bhiwani and is also residing at the present address for the last about two decades. In view of the same, it is the claim of the respondent that he bonafidely presented the cheque in his bank at Bhiwani which was further presented to the drawer’s Bank at Guwahati. The cheque was returned uncashed to the respondent’s bank at Bhiwani with the endorsement “payment stopped by drawer”. The respondent received the bounced cheque back from his bank at Bhiwani. Thereafter, the respondent sent a legal notice under Section 138 of the N.I. Act to the appellant from Bhiwani. In turn, the appellant sent a reply to the said notice which the respondent received at Bhiwani. In view of non-payment of the cheque amount, the respondent filed a complaint under Sections 138 and 141 of the N.I. Act before the learned Magistrate at Bhiwani.

14) In the light of the above discussion, we hold that the ratio laid down in K.Bhaskaran (supra) squarely applies to the case on hand. The said principle was correctly applied by the learned Sessions Judge as well as the High Court. Consequently, the appeal fails and the same is dismissed. In view of the dismissal of the appeal, the interim order granted by this Court on 09.12.2011 shall stand vacated.

JULY 01, 2013.