Gopinath Mohanti vs Manoj Kumar Sahu

B.K. Patel, J.—In this application u/s 407 of the Cr.P.C. accused-petitioner has prayed for transfer of C.T. Case No. 1661 of 2004, a complaint u/s 138 of Negotiable Instruments Act (for short ''the Act''), lodged by complainant-opposite party in the court of learned S.D.J.M., Angul to any other court situated at Bhubaneswar. On consent of the parties, the matter was taken up for final disposal at the stage of admission.

Averments made in the complaint petition, as are essential and relevant for purpose of this application, are as follows:

Accused-petitioner being the Managing Partner is responsible for managing his firm ''Classic Super Construction''. Complainant took sub-contract of the work of "Excavation of Padiabhanga Canal, Lingarakata Canal, Balipatpur Canal with Minor and Sub-Minors including all structure of Rengali Sub-Project under R.I.P. under AIBP" which had been awarded in favour of the accused and submitted bills for payment after execution of the work. Accused issued cheque bearing No. 499440 dated 25.04.2004 of Punjab National Bank, Bhubaneswar for Rs. 6,73,894/- towards part payment. Complainant presented the cheque for encashment before United Bank of India, Kulad Branch, Angul on 25.04.2004. On 22.07.2004 complainant''s banker United Bank of India, Kulad Branch returned the cheque stating that the cheque was dishonoured with the intimation bearing endorsement "Payment stopped by Drawee". On 29.07.2004 complainant issued Advocate''s notice demanding payment of the amount of the dishonoured cheque within stipulated period.

It was contended by the learned Counsel for the petitioner that court of S.D.J.M., Angul has no territorial jurisdiction to proceed with the complaint and opposite party has maliciously instituted the prosecution at Angul in order to harass the petitioner. It was further argued that assuming that the court of S.D.J.M., Angul is one of the courts which has jurisdiction to proceed with the case, in the agreement executed between the complainant and the accused for execution of above said work by the complainant as a sub-contractor, it has been specifically stipulated that dispute between the parties will be decided in courts situated in Bhubaneswar. In this connection, learned Counsel appearing for the petitioner filed Xerox copy of an agreement in course of hearing. It was further urged that the petitioner apprehends risk to his life at Angul as he was threatened by the opposite party and his henchmen earlier.

In reply, it was submitted by the learned Counsel for the opposite party that all the acts towards commission of alleged offence u/s 138 of the Act were done in the local area under the jurisdiction of the court of S.D.J.M., Angul. It was contended that the opposite party never agreed that all disputes between him and complainant would be enquired into and tried by courts in Bhubaneswar only. Stipulation, if any, in any agreement is a manipulation. It was further argued that law is well settled that parties by agreement cannot confer jurisdiction on a court not possessed by it. As regards the second contention, it was contended that petitioner''s grievance made earlier before this Court regarding threat to his life at Angul has been suitably dealt with by this Court by order dated 28.07.2006 passed in CRLMC No. 1588 of 2006. It was strenuously argued that the petitioner has filed the present application vaxatiously in order to prolong the prosecution.

The Cr.P.C. specifies place of enquiry and trial. Provisions under Sections 177, 178 and 179 of the Cr.P.C. are relevant for the purpose of the present application. Section 177 of the Cr.P.C. reads:

Ordinary Place of Inquiry and trial.-Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

Section 178 of the Cr.P.C: reads:

Place of inquiry or trial.-(a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed-partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

Section 179 of the Cr.P.C. reads:

Offence triable where act is done or consequence ensues-When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

Question relating to territorial jurisdiction of courts dealing with offence u/s 138 of the Act has been answered by the Hon''ble Supreme Court in several decisions. In the decision of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, , upon reference to Sections 177, 178 and 179 of the Cr.P.C. it has been held by the Hon''ble Supreme Court as follows:

We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. u/s 177 of the Code "every offence shall ordinarily be enquired into and tried in a court within whose jurisdiction it was committed". The locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as the sole; criterion to determine the place of offence. It must be remembered that offence u/s 138 would not be completed within the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in Clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence u/s 138 of the Act.

Even otherwise the rule that every offence shall be tried by a court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle. Section 177 itself has been framed by the legislature thoughtfully by using the precautionary word "ordinarily" to indicate that the rule is not invariable in all cases. Section 178 of the Code suggests that if there is uncertainty as to where among different localities, the offence would have been committed the trial can be had in a court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon. It reads thus:

Offence triable where act is done or consequence ensues.-When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the courts to try the offence was sought to be determined.

The offence u/s 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.

It is not necessary that all the above fixed 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 u/s 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:

(a)-(c)* * * *

(e) 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.

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 u/s 138 of the Act. In other words, the complainant can chose 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 u/s 138 of the Act.

The principles has been reiterated by the Hon''ble Supreme Court in the decision of Smt. Shamshad Begum Vs. B. Mohammed, and followed by this Court in Korp Gems (India) Pvt. Limited and Anr. v. Suraj Products Ltd. 2007 1 OLR 1074. It has been held in both the decisions that court under the territorial jurisdiction of which notice is issued demanding payment under the dishonoured cheque also has jurisdiction to entertain prosecution u/s 138 of the Act.

As has been pointed out in State of Madhya Pradesh v. K.P. Ghiara AIR 1957 S.C. 196 the venue of inquiry or trial of a case is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts thereon are positively disproved, ordinarily the Court, where the charge-sheet or complaint is filed, has to proceed with.

When specific provisions have been made under the Cr.P.C. relating to territorial jurisdiction of the Courts i.e. place of inquiry or trial, the statutory provisions cannot be defeated by agreement between the parties. It is well settled that parties cannot by agreement confer jurisdiction on a Court not possessed by it under law. In this connection, decisions of the Hon''ble Supreme Court in Hakam Sing Vs. Gammon (India) Ltd., as well of this Court in Pattnaik Industries Pvt. Ltd. Vs. Kalinga Iron Works and Another, and Mrs. Rama Mishra Vs. Sri Ram City Union Finance Ltd., may be referred to.

In the present case averments made in the complaint petition do not indicate that any of the acts towards commission of alleged offence u/s 138 of the Act was done in Bhubaneswar. It has been specifically averred in the complaint that the disputed cheque was presented to and returned unpaid by the bank situated within the jurisdiction of the Court of S.D.J.M., Angul. Therefore, at the least two of the acts constituting the alleged offence have specifically been asserted to have been done within the jurisdiction of the Court in the which the complaint has been lodged. Learned Counsel for the opposite party also submitted that notice to the petitioner demanding payment of the cheque amount was issued from Angul where opposite party resides.

The five components of the offence u/s 138 of '' the Act, as enumerated in K. Bhaskaran (supra), do not include execution of agreement relating to the transaction in connection with which payment was to be made under the cheque. Also, the complaint petition does not indicate execution of any agreement. That apart, copy of the disputed agreement asserted to have been executed between the parties and filed on behalf of the petitioner in Court reveals that the agreement contains 8 clauses which have been typed. However, in the clause-7 the words "All disputes are jurisdiction of Bhubaneswar court" have been inserted by pen. Therefore, the agreement produced in court is of no help to the petitioner.

As regards the contention regarding threat on petitioner''s life at Angul, as submitted," it appears that the grievance was dealt With by this Court by order dated 28.07.2006 in CRLMC No. 1588 of 2006. Relevant part of the order reads:

It is submitted by learned Counsel for the petitioner that the petitioner apprehends threat to his life at Angul. I, therefore, direct that if the petitioner files a suitable application before the local police praying for adequate protection it shall be provided, facilitate the petitioner to attend the court.

In view of the above, the petitioner is found to have miserably failed to make out any case for transfer of the complaint from the court of S.D.J.M. Angul u/s 407 of the Cr.P.C. The complaint was lodged as early as in the year 2004 and it appears that the accused-petitioner has filed number of applications before this Court resulting in protraction and delay. Learned S.D.J.M., Angul is directed to dispose of the case expeditiously preferably by the end of 2009.

With the aforesaid direction, the TRPCRL is dismissed.