Allowed

Rajagopal, v. v.Raman

Madras HC11 Dec 2013CRL RC(MD)/254/2013

Case brief

AI extract

What is this about?

The Madurai Bench allowed a criminal revision challenging the dismissal of a Section 138 complaint due to lack of jurisdiction. The court held that the Magistrate had jurisdiction as the notice was issued from the complainant's place of ordinary residence, relying on Supreme Court precedents.

What did the court decide?

Order of the learned Judicial Magistrate dated 04.01.2013 set aside; direction to take the complaint on file and dispose of it.

Rajagopal, Vs v.Raman — Cheque Dishonour | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 11.12.2013

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CORAM

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THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN

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CRL.R.C.(MD) No. 254 of 2013

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Rajagopal

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... Petitioner/Petitioner

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Vs.

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1.V.Raman 2.Nirmala Raman

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..Respondents/Respondents

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Prayer : Criminal revision petition filed under Section 397 r/w 401 of Criminal Procedure Code to call for the records in unnumbered S.T.C.No of 2012 dated 04.01.2013 on the file of the Judicial Magistrate, Nanguneri and set aside the same and pass such further or other orders as this Court may deems fit in the circumstances of the case.

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For Petitioner : Mr.D.Venkatesh

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For Respondents : No appearance

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O R D E R

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This revision is preferred challenging the order passed by the learned Judicial Magistrate, Naguneri,dated 04.01.2013 dismissing the complaint filed under Section 138 of Negotiable Instruments Act on the ground that the concerned court had no jurisdiction.

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On 02.07.2012, the accused persons had borrowed a sum of Rs.4,50,000/- from the complainant agreeing to repay the same on demand made by the complainant. When the complainant demanded the accused to repay the money, they issued a cheque drawn on Andra Bank Ashok Nagar, Chennai, on 05.08.2012. The cheque was presented for encashment on 17.08.2012 in Indian Bank, Tirunelveli where the complainant was having account but the cheque was dishonoured on 18.08.2012 on the ground of 'insufficient fund'. The complainant sent statutory notice to the accused Nos. 1 and 2 on 14.09.2012 through his Advocate and in spite of receipt of notice, the accused neither repaid the money nor replied the said notice. Thereafter, the complainant has preferred the complaint under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate, Nanguneri, where the complainant was permanently residing.

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The learned Judicial Magistrate after perusing the sworn statement and the cheque drawn on Andra Bank, Ashok Nagar, Chennai which was presented with Indian Bank, Tirunelveli Junction, he came to the conclusion that no cause of action to entertain the complaint had arisen within the jurisdiction and placing reliance on the judgment reported in 2011 (2) MLJ (Criminal) 357 in Pritish Tiwari Vs. Vista Security Techniques Private Limited, Chennai dismissed the complaint. https://hcservices.ecourts.gov.in/hcservices/ Aggrieved against the said order, the complainant has filed this revision.

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Mr.D.Venkatesh, learned counsel appearing for the complainant submitted that the law in this regard settled by the Hon'ble Supreme Court where the court held that the offence under Section 138 of Negotiable Instruments Act is complete on the performance of five acts, namely, drawing of the cheque, presentation of the cheque to the bank, returning of cheque and unpaid by the drawee bank, giving notice in writing to the drawer demanding payment of the cheque and failure of the drawer to make payment within 15 days of the receipt of the notice.

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The learned counsel would further submit that the Hon'ble Supreme Court has further laid down that 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 and if the five different acts were done in five different localities then in view of Sub Section (9)(d) of Section 178 Cr.P.C, 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 Negotiable Instruments Act.

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The learned counsel relied on the decision of the Hon'ble Supreme Court in K. Bhaskaran Vs.Sankaran Vaidhyan Balan reported in AIR 1999 SC 3762 in support of his contention. The learned counsel also placed reliance on a recent decision of the Hon'ble Supreme Court arising out of S.L.P.No.7325 of 2012 dated 17.09.2013 reiterating its decision rendered in K.Baskaran's case cited Supra.

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After having given thoughtful consideration to the submission made by the learned counsel for the complainant in my view, submission made by the learned counsel merits acceptance. The Hon'ble Supreme Court in K.Baskaran's case cited supra has clearly laid down that the complainant can file the complaint at any of the five places where the cause of action has arisen. The same has been reiterated in Shamhad Begum Vs. B.Mohammed reported in AIR 2009 SC 1355 also. It has been laid in the said decision that the places where the complainant is carrying on his business or is ordinarily residing or where its registered office is situated, if a notice demanding payment is issued from such place the court at such place would have jurisdiction to entertain the complaint. The Hon'ble Supreme Court has also stated that as the amplitude stands so widened and so expansive it would be an idle exercise to raise jurisdictional question regarding the offence under Section 138 of Negotiable Instruments Act. The law laid down in clear terms by the Hon'ble Supreme Court in this regard is as follows:-

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(i) The offence under Section 138 can be completed only with the concatenation of a number of acts. The following are the acts which are the 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.

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(ii) It is not necessary that all the above five acts should have been perpetrated at the same locality, It is possible https://hcservices.ecourts.gov.in/hcservices/ that each of those five acts could be done at five different localities. But a concatenation of all the above five acts is a

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sine qua non for the completion of the offence under Section 138 of the Negotiable Instruments Act. In this context reference to Section 178(b) of the code is useful.

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(iii) 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 trail for the offence.

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Going by the scheme of the provisions in chapter XIII of Code of Criminal Procedure regarding the jurisdiction of Criminal courts, it can very well be seen that the place of commission of offence is the place where ordinarily enquiry or trial in respect of the said offence can be held. Many a times it happens that the offence comprises of several acts, each of such act being performed or committed at several distinct places. It is also possible that it remains uncertain in which of the local areas the offence was committed. There is also possibility that an offence continuous to be committed in more than one local areas. Considering these possibilities Section 178 of Code of Criminal Procedure allows the enquiry or trial of each offences be held by the court in any of such local areas. Section 179 of Code of Criminal Procedure stretches its scope further so as to allow the enquiry or trial to be held by a court within whose local jurisdiction either an act necessary to constitute an offence has been done or the consequence of such act has ensued when an act is an offence by reason of anything which has been done and of consequence which has ensued.

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In so far as the cause of action for an offence under section 138 of Negotiable Instruments Act is concerned, the cause of action arises at a place where the cheque was drawn, or a place where the cheque was presented or a place where the payee made a demand for the payment of money by giving notice in writing to the drawer within the stipulated period and at a place where the drawer failed to make the payment. Therefore, the complaint may be filed in a court within the jurisdiction of which the cheque has been drawn or place where the cheque is presented for collection or place where the payee made a demand for money or at a place where the drawer failed to make the payment.

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It has been consistently held that if the payee is an individual, he can issue notice from the place where he ordinarily resides or carries on business and in case payee is a company, it can issue notice from the place where it is carrying on business or where its head office situated. However, in Harman Electronics(P) Ltd., Vs. National Panasonic India Limited reported AIR 2009 SCC 1168 the Hon'ble Supreme Court held that a company or financial institution having several branches has to file a complaint at the place where the transaction had taken place, cheque was drawn, presented and dishonoured. It held that merely because company issued a notice from the place where its head 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. https://hcservices.ecourts.gov.in/hcservices/

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In that case, the issue was as to whether sending of a notice from Delhi which is the head office would give rise to a cause of action for taking cognizance of a case under Section 138 of Negotiable Instruments Act when both the parties had been carrying on business at Chandigar, the head office of the respondent complainant was at Delhi but it had a branch at Chandigar and all the transactions were carried out only from Chandigar. On the above facts , the Hon'ble Supreme Court held that Delhi from where a notice under Section 138 of Negotiable Instruments Act was issued by the complainant would not have had jurisdiction to entertain the complaint. It is pertinent to note that in that case, the complainant had a branch at Chandigar and its head office was in Delhi. However, the complainant issued notice from Delhi. On such facts and circumstances of the case, the Hon'ble Supreme Court held that Delhi Court will not have jurisdiction to entertain the complaint.

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In the said decision cited Supra (Harman Electronics' case) the Hon'ble Supreme Court has observed that it is necessary to strike a balance between the right of the complainant and the right of the accused vis-a-vis the provisions of the Code of Criminal Procedure. It is possible to urge that the accused can take exemptions from appearance in the court, where as the complainant runs the risk of his complaint being dismissed in his absence and therefore, hardship caused to the complainant is more.

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In the present case, the notice was issued by the complainant from Nanguneri where he ordinarily resided. Therefore, he comes under the fourth component i.e giving notice in writing to the drawer of the cheque demanding payment of the cheque amount. Therefore, the learned Judicial Magistrate, Nanguneri derives the jurisdiction in view of issuance of notice by the complainant to the drawer of the cheque demanding payment of the cheque amount a place where he ordinarily resided.

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14.Therefore, the learned Judicial Magistrate, Nanguneri clearly has jurisdiction to try and decide the case. Therefore, in the light of decision of the Hon'ble Supreme Court cited supra and for the reasons stated above, the order passed by the learned Judicial Magistrate warrants interference and the same is liable to be set aside.

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In the result, the revision is allowed and the order passed by the learned Judicial Magistrate, Nanguneri dated 04.01.2013 is set aside. The trial Court shall take the complaint on file and dispose of it in accordance with law.

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ses

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Sd/-

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Assistant Registrar[Crl side]

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/True copy/

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Sub Assistant Registrar

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https://hcservices.ecourts.gov.in/hcservices/

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The Judicial Magistrate, Nagercoil.

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The Chief Judicial Magistrate, Tirunelveli.

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+1 cc to Mr.D.Venkatesh, Advocate Sr.No.62347.

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Crl.R.C.(MD)No.254 of 2013

Dated:11.12.2013

5P/4C

RPB 31.12.2013

11.12.2013

https://hcservices.ecourts.gov.in/hcservices/

Rajagopal, v. v.Raman

Case brief

What is this about?

What did the court decide?

Rajagopal, v. v.Raman

Case brief

What is this about?

What did the court decide?

What the court decided

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