Mohan Srivastava vs State of U.P. and Another

Vijay Prakash Pathak, J.—The present petition u/s 482, Cr.P.C. has been filed with a prayer to quash the entire proceedings in Complaint Case No. 2049 of 2008, Mahesh Chandra Gupta v. Mohan Srivastava, u/s 138 of the Negotiable Instruments Act (hereinafter referred to as the Act), P.S. Kotwali Nagar, District Bulandshahr, pending in the Court of Chief Judicial Magistrate, Bulandshahr. The brief facts of the case are that opposite party No. 2 Mahesh Chandra Gupta filed a complaint for the offence punishable u/s 138 of the Act against the applicant Mohan Srivastava with the allegations that after calculation, an amount of Rs. 19,28,000 was found due against the applicant and in order to pay the aforesaid dues, stamp paper was also written and a cheque No. 859520, dated 10.10.2007 of I.C.I.C.I. Bank, Kanpur was given to opposite party No. 2 at his house. It was told to the complainant-opposite party No. 2 not to submit the said cheque for clearance in the Bank before 31.12.2007. The opposite party No. 2 objected to the said act of the applicant and told him that he was delaying the payment of money and not giving cash and that the Cheque could be dishonoured. On this, the applicant gave an assurance that he is a L.I.C. employee and nothing wrong will happen. On the assurance so given, the opposite party No. 2 took the said cheque in good faith and presented the same for clearance before his bankers, Canara Bank, Bulandshahr on 2.2.2008. which was dishonoured by the concerned Bank on 7.1.2008. An information to that effect was received by the opposite party No. 2 from his aforesaid bankers Canara Bank, Bulandshahr on 14.1.2008, According to him not only was he defrauded by the applicant in this manner but the said cheque was also misused by the applicant thereby causing a loss of Rs. 19,31,822 to the opposite party No. 2. Thereafter, on 28.1.2008, the opposite party No. 2 send a legal notice through his counsel to the applicant to his residence at Flat No. 4, Free India House, L.I.C. Colony, 6/32, Civil Lines, Kanpur as well as to his official address at Inspection Department Fourth Floor, L.I.C. of India, Zonal Office 16/98, M.G. Marg, Kanpur, U.P. by registered post, which was received by him on 1.2.2008. But not a single penny was paid to the opposite party No. 2. Rather the applicant had sent his reply dated 8.2.2008 against the said notice which is based on false and fictitious statement of facts. It was further stated that cause of action arose on 15/16.2.2008. Thereafter, the complaint as aforesaid was filed against the applicant in the Court of Chief Judicial Magistrate, Bulandshahr on 7.3.2008 with the prayer to punish the accused-applicant and claiming that the complainant be given compensation with interest and other expenses.

After receiving the complaint, the learned. Chief'' Judicial Magistrate, Bulandshahr took cognizance thereof and recorded the statement of the complainant u/s 200, Cr.P.C. After considering the entire materials on record, learned Chief Judicial Magistrate summoned the applicant to face trial vide order dated 19.3.2008 for the offence punishable u/s 138 of the Act finding a prima facie case against him.

Heard Sri O. P. Singh, learned senior advocate, assisted by Sri H. N. Singh, counsel for the applicant and Sri Pradeep Kumar Rai, learned counsel for the opposite party No. 2 as well as learned A.G.A. arid perused the record.

Learned counsel for the applicant has mainly contended that according to the complaint itself, both the applicant and the opposite party No. 2 are permanent residents of Kanpur Nagar and the entire transaction also took place at Kanpur Nagar, hence the Court at Bulandshahr had no jurisdiction to try the offence and summon the applicant. It is also contended that the opposite party No. 2 is not a resident of 140. Munshi Pada. P.S. Kotwali Nagar, Bulandshahr but is a resident of 3-A/72, Azad Nagar, P.S. Nawabganj, Kanpur Nagar and he deliberately filed the instant complaint against the applicant at District Bulandshahr through his brother-in-law Sri Surendra Mohan Swaroop, advocate, who is a resident of 140, Munshi Pada, P.S. Kotwali Nagar. Bulandshahr for the sake of his convenience of getting all sorts of legal as well as other help and with a view to harass him whereas the cause of action arose in the territorial jurisdiction of District Kanpur Nagar. It is further contended that the applicant gave an instruction on 29.10.2007 to the concerned Bank to stop the payment of the cheque in question dated 10.10.2007 given to opposite party No. 2 until and unless the applicant gives further instruction in writing to the Bank for its payment to him. A copy of the said instruction was also given to the opposite party No. 2 but inspite of the said instruction, the opposite party No. 2 presented the said cheque for its clearance in the Bank on 2.2.2008, which was alleged to have been dishonoured on 7.1.2008, it is also contended that there was no factum of any transaction having taken place between the applicant and opposite party No. 2 but the opposite party No. 2 in an illegal manner obtained his signatures on the blank stamp papers as well as on the blank cheques, including the cheque in question and misused the same. It is also contended that the applicant is going through a tremendous situation and financial crises at home as his family members, who are dependent upon him are suffering with serious diseases and he remains perturbed and taking the advantage of the same, the opposite party No. 2 has done illegal acts.

Learned counsel for the applicant has cited the following decisions of the Honb''le Apex Court as well as of Bombay High Court on the point of jurisdiction:

(1) Appeal (Crl) 980 of 2007 decided on 1.8.2007, Veer Prakash Sharma Vs. Anil Kumar Agarwal and Another, by the Hon''ble Apex Court.

(2) Ahuja Nandkishore Dongre Vs. State of Maharashtra and Another, .

(3) Smt. Nutan Damodar Prabhu and Shri Damodar S. Prabhu Vs. Ravindra Vassant Kenkre also known as Ravindra Kenkre and State Represented by the Public Prosecutor, .

(4) (Bombay High Court, Aurangabad Bench) Laxmi Travels Vs. G.E. Countrywide Consumer and Another, .

On the other hand, learned counsel for the opposite party No. 2 complainant has submitted that a part of transaction took place at Bulandshahr as the cheque in question, was presented before the complainants banker of Canara Bank, Bulandshahr on 2.1.2008 (wrongly typed as 2.2.2008 in the complaint) for clearance and after dishonour of the said cheque by the concerned Bank, an information to that effect was also given to opposite party No. 2 by his bankers, Canara Bank, Bulandshahr. It is also submitted that the legal notice to the applicant was also sent by the opposite party No. 2 from Bulandshahr regarding dishonour of the cheque and the reply thereof from the applicant was also received by him on 22.6.2008 at his residence 140, Munshi Pada, P.S. Kotwali Nagar, Bulandshahr where he is residing at present, hence the court at Bulandshahr has jurisdiction to entertain the complaint and try the offence u/s 138 of the Act against the applicant. It is also contended that the present address of the opposite party No. 2 is 140, Munshi Pada, PS Kotwali Nagar, Bulandshahr. It is also contended that the learned Chief Judicial Magistrate has rightly summoned the applicant for the offence u/s 138 of the Act as the cheque dated 10.10.2007 of the I.C.I.C.I. Bank, Kanpur Nagar given towards liability to pay the amount in question to the opposite party No. 2 was dishonoured by the concerned Bank, which was informed by his bankers, Canara Bank, Bulandshahr on 14.1.2008, for which a legal notice was sent to the applicant on 28.1.2008, which was served upon him on 1.2.2008 but not a single penny was paid to opposite party No. 2. Rather he replied the said notice on false and fictitious statement of facts. The cause of action for filing the complaint had arisen on 15/16.2.2008 and the complaint was filed on 7.3.2008, which was well in accordance with the provisions of Sections 138 and 142 of the Act. Hence, it is submitted that no interference is called far in the impugned order of the learned Magistrate summoning the applicant, in this petition u/s 482, Cr.P.C.

In support of his contention, learned counsel for the opposite party No. 2 cited the verdict of Hon''ble Apex Court given in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, .

I have considered the aforesaid arguments on behalf of the rival parties'' counsel and perused the entire record as well as the rulings cited by the parties.

In order to arrive at a logical answer to the relevant question, which goes to the root of the matter, as to whether Court at district Bulandshahr or court at district Kanpur Nagar has jurisdiction to entertain the complaint and try the aforesaid offence, the various decisions cited by the counsel for the parties may be examined.

Now coming to the first verdict Veer Prakash Sharma v. Anil Kumar Agarwal and another (supra) cited by the learned counsel for the applicant, the Hon''ble Apex Court has been pleased to observe that the residences of the appellant and respondent are in different districts. The appellant is a resident of District Azamgarh whereas the respondent is a resident of District Rampur, Cheques were admittedly issued by the appellant at his place. There is nothing on record to show that any part of the cause of action arose within the jurisdiction of the court concerned (Special Judicial Magistrate, Rampur). Even if such statements had been made, the same admittedly have been made only at the place where the appellant resides. The learned Magistrate, therefore, had no jurisdiction to issue the summons.

In the next ruling of Bombay High Court, Ahuja Nandkishore Dongre v. State of Maharashtra and another (supra) cited on behalf of the applicant, the Bombay High Court has been pleased to observe that a cheque has to be presented to the drawee bank at the place mentioned on the cheque. If the Courts, within whose jurisdiction the cheque was merely presented for realization, were to be allowed to entertain complaints, the result would be opening flood gates for harassment to persons who issued cheques. A person who issues a cheque on his bank indicates, by his act that he intends to make payment at the drawee bank and not elsewhere. Therefore, for the reasons stated above, the views taken by the Andhara Pradesh, Delhi and Kerala High Courts could, not be said to be proper because in all these judgments, significance of word "the" in Clauses (2) and (3) in paragraph 14 of the judgment in Bhaskaran''s case has been lost sight of. Though complainant may have accounts at several places, it does not follow that the complainant could file complaint at a place where he had account, because jurisdiction would have to be gathered from the place where money was intended to be paid.

In the third ruling Smt. Nutan Damodhar Prabhu and another (supra), cited by learned counsel for the applicant, the Bombay High Court has been pleased to hold that jurisdiction would have to be gathered from the place where money was intended to be paid.

In the fourth and last ruling Laxmi Traverls. Nagpur v. G. E. Countrywide Consumer and. another (supra) cited by learned counsel for the applicant, the Bombay High Court has been pleased to observe that cause of action as contemplated in Section 142 of the Act arises at the place where the drawer of the cheque fails to make payment of money. That can be the place where the bank to which the cheque was issued is located. It can also be the place where the cheque was issued or delivered. The Court within whose jurisdiction any of the above-mentioned places falls has, therefore, got jurisdiction to try the offence u/s 138 of the Act. The another facet is the convenience of the parties. In such matter whenever there is a contest and trial is necessary, it is in the interest of all that the place where such cheque is issued, presented and dishonoured should be the place for detail enquiry and adjudication of all the issues. In such matters basic parties including witnesses are definitely need to pay relevant role during the trial.

Regarding the question of jurisdiction, the Hon''ble Apex Court in its verdict K. Bhaskaran v. Sankaran Vidhyan Balan and another (supra) has been pleased to hold that u/s 177 of the Criminal Procedure 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 with 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. Hon''ble Apex Court has further held that Section 178 of the Criminal Procedure 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 has been further observed that 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 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 five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at Ave 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. 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 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 u/s 138 of the Act."

Now applying the tests as laid down by Hon''ble Apex Court in K. Bhaskaran v. Sankaran Vidhyan Balan and another (supra) to the facts of the present case, in this matter since the cheque was presented by the complainant before his bankers Canara Bank, Bulandshahr, which was dishonoured by the concerned Bank and an information to that effect was received by the complainant from his aforesaid bankers Canara Bank, Bulandshahr. Thereafter, legal notice demanding payment of cheque amount was sent by the complainant to the applicant from Bulandshahr showing his present address at Bulandshahr, which was received by the applicant at Kanpur and the said notice was replied by the applicant at the residence of the complainant at Bulandshahr, hence, apparently a part of cause of action arose at Bulandshahr.

A perusal of Section 138 of the Act would indicate that for an offence under the said section, the following basic facts are required to be proved to successfully prosecute the drawer:

(a) that the cheque was drawn for payment of an amount of money for discharge of debt/liability and the cheque was dishonoured.

(b) that the cheque was presented within prescribed period.

(c) that the payee made the demand for payment of the money by giving a notice in writing to the drawer within the stipulated period.

(d) and the drawer failed to make payment within 15 days of the receipt of the notice.

In the present matter the cheque was Issued by the applicant on 10.10.2007 of I.C.I.C.I. Bank Kanpur for payment of liability of Rs. 19,28,000 in favour of the complainant and it was told to the complainant that the said cheque be not submitted for clearance in the Bank before 31.12.2007. The said cheque was presented on 2.1.2008 by the complainant before his bankers Canara Bank, Bulandshahr, which was dishonoured by the concerned Bank on 7.1.2008. An information to that effect was received by the complainant from his aforesaid bankers Canara Bank, Bulandshahr on 14.1.2008, Thereafter on 28.1.2008, the complainant sent a legal notice through his counsel from Bulandshahr to the applicant to his residence at Kanpur by registered post which was received by him on 1.2.2008 but the money was not paid. Rather the notice was replied on 8.2.2008, which was received at Bulandshahr by the complainant and thereafter the complaint was filed on 7.3.2008 before the learned Chief Judicial Magistrate, Bulandshahr. Hence, all the necessary ingredients of Section 138 of the Act were satisfied to prosecute a person. The learned Chief Judicial Magistrate rightly summoned the applicant after considering the complaint, statement of the complainant and all other materials on record finding a prima facie case against him to be made out u/s 138 of the Act.

All other contentions and averments made on behalf of the applicant are disputed questions of fact, which cannot be adjudicated upon at this stage by this Court in its extra ordinary jurisdiction u/s 482, Cr.P.C. as the same are the matters of evidence and may be considered and seen after evidence of the parties before the trial court.

After considering the aforesaid materials and in view of the verdict of. Hon''ble Apex Court in K. Bhaskaran v. Sankaran Vidhyan Balan and another (supra), in my opinion, the complaint was rightly filed at Bulandshahr as the Chief Judicial Magistrate at Bulandshahr was fully competent having jurisdiction in the matter to try the offence and he accordingly rightly summoned the applicant to face trial finding a prima facte case against him u/s 138 of the Act. There appears no infirmity, illegality, irregularity or jurisdictional error in the summoning order passed by the learned Chief Judicial Magistrate and this petition is meritless and is liable to be dismissed. The petition is accordingly dismissed.