Shiv Ram Vs Tara Dutt Nirmohi

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No.385 of 2012 Date of Decision: 07.03.2026

______________________________________________ Shiv Ram Versus Tara Dutt Nirmohi	______________________ ……...Appellant …....Respondent
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?

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____________________________________________________________________ For the Appellant: Mr. Arvind Sharma, Advocate. For the Respondent: Mr. Naresh Kumar Tomar, Advocate. ____________________________________________________________________ Sandeep Sharma, J. (Oral)

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Instant criminal appeal filed under Section 378 of the Cr.P.C. lays challenge to judgment dated 27.01.2011 passed by learned Judicial Magistrate First Class, Nalagarh, District Solan, in criminal complaint No.57/3 of 2006, filed under Section 138 of the Negotiable Instruments Act (hereinafter, ‘the Act’) , titled as Shiv Ram Vs. Shri Tara Dutt Nirmohi , whereby afore complaint came to be dismissed on the ground of maintainability.

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Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record reveal that appellant (hereinafter, ‘complainant’) instituted a complaint under Section 138 read with Section 142 of the Act in the competent Court of law, alleging

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therein that in the month of November, 2005, respondent-accused (hereinafter, ‘accused’) hired a JCB machine from him and for that purposes, he had to pay rent to the tune of ₹1,20,000/-. Though accused paid ₹35,000/- to the complainant, but with a view to discharge remaining liability, issued Cheque bearing No.403245 dated 05.01.2006 amounting to 85,000/- (Ex.C1), however, aforesaid Cheque on its₹ presentation to the Bank concerned was returned with the remarks ‘insufficient funds’ vide memos dated 15.02.2006 (Ex.C2 & Ex.C3). Immediately, after receipt of afore memos, complainant issued demand notice to the accused dated 24.02.2006, calling upon him to make the payment good within the stipulated time (Ex.C4). Since despite receipt of legal notice, accused failed to make the payment good, complainant had no option but to institute proceedings under Section 138 of the Act in the competent Court of law, which vide impugned judgment dismissed the complaint on the ground of maintainability.

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At first instance, being aggrieved and dissatisfied with the aforesaid judgment, complainant preferred appeal in the Court of learned Sessions Judge, Solan, by way of Criminal Appeal No.3-NL/10 of 2011, but the same was returned to the complainant vide judgment dated 17.07.2012 for filing appropriate proceedings in the appropriate Court of

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law. In the afore background, complainant approached this Court in the instant appeal praying therein to set aside the judgment of learned trial Court, wherein complaint having been filed by the complainant under Section 138 of the Act, came to be dismissed on the ground of maintainability.

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Admittedly, in the case at hand, Cheque in question was drawn on H.P. State Cooperative Bank, Branch Rajgarh and same was dishonoured at Rajgarh. Interestingly, after receipt of return memo, complainant served accused the legal notice from Nalagarh and thereafter, complaint was also filed at Nalagarh. Since whole cause of action arose at Rajgarh, District Sirmaur, complaint, if any, under Section 138 ought to have been filed at Rajgarh and not at Nalagarh. Since complaint under Section 138 of the Act was not filed at a place where bank account of the payee exists and Cheque was dishonoured, Court below having taken note of aforesaid glaring mistake committed by complainant rightly rejected the complaint. At this stage, it would be apt to take note of Sections 142(2)(a) and 142(2)(b) of the Act, which read as under:

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“142(2) - The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—

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(a)if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b)if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.”

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If the aforesaid provision of law is perused in its entirety, it clearly reveals that offence under Section 138 of the Act shall be inquired into and tried only by the Court having jurisdiction over the bank branch concerned with the presentation of the cheque. Where the cheque is delivered for collection through an account, jurisdiction lies with the court within whose jurisdiction the branch of the bank where the payee or holder in due course maintains the account is situated. However, where the cheque is presented for payment otherwise than through an account, jurisdiction lies with the Court within whose jurisdiction the branch of the drawee bank where the drawer maintains, the account is situated.

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