M/s. M.C. Shah Prop. Shri Manukant Chhanalal Shaba, Represented by his Power of attorney, Mr. Rameshchandra Ishwarilal Joshi vs Mr. Azad Ramoliya (NRE) and Mr. Dhirubhai Dhanjibhai Patel

N.A. Britto, J.—Heard Shri K. B. Surjuse, learned Counsel on behalf of the Petitioner. The Respondents have chosen to remain absent, though duly served. The petitioner is the complainant in a complaint filed u/s 138 of the Negotiable Instruments Act, 1881, which complaint by Order dated 11-6-2009 has been ordered to be returned to the complainant to be filed before the appropriate Court. This writ petition is directed against the said Order.

The complainant is a permanent resident of Surat and so also both the accused and that much is conceded on behalf of the complainant, though such a fact is not disclosed either in the complaint or its cause title.

The complainant has his business in the name of M/s M. C. Shah and has a Branch Office of that business at Ponda. The case of the complainant is that the complainant advanced Rs. 97,000/-to the accused(both ?) and at the time of paying the said amount the accused No. 1 issued a cheque bearing No. 047269 dated 3-2-2009 drawn on City Bank, Surat Branch. The complainant deposited the said cheque with his Banker at Ponda, Goa, and the said cheque when sent for collection to City Bank, Surat, was returned with endorsement that the payment was stopped by drawer.

The complainant therefore issued a legal notice through one Advocate Gaonkar having his Office at Ponda calling upon the accused to make payment within a period of fifteen days, failing which the complaint would be filed at Ponda Court. The accused probably did not reply to the said notice, as a result the complaint came to be filed before the learned J.M.F.C., Ponda, through attorney, and the learned J.M.F.C. after hearing the learned Advocate on behalf of the complainant chose to direct the return of the complaint to be filed before appropriate Court. The learned J.M.F.C. did not examine the complainant as required in law but accepted an affidavit, in lieu thereof.

Shri K. B. Surjuse, learned Counsel on behalf of the complainant, submits that the complainant had advanced the money to the accused in Goa but is unable to point out to any statement to that effect in the complaint. Learned Counsel submits that the complainant has an Office at Ponda managed by a Manager. Learned Counsel next submits that the subject cheque was given by accused No. 1/Azad Ramoliya and was endorsed by accused No. 2/Dhirubhai Dhanjibhai Patel. However, learned Counsel has not been able to provide any explanation as to why a cross cheque issued by accused No. 1/Azad to the complainant had to be endorsed by accused No. 2/Dhirubhai. Shri Surjuse, learned Counsel has next submitted that the learned J.M.F.C., Ponda has not followed the Judgment in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, which was followed by the Supreme Court in the case of Shamshad Begum(SMT) v. B. Mohammed( (2008) 13 SCC 77), and further submits that the impugned Order is contrary to the Judgment of the Apex Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and another(supra). Learned Counsel further submits that the learned J.M.F.C. could not have decided the issue of jurisdiction unilaterally and the issue of jurisdiction had to be decided only in case an objection was raised by the accused. Learned Counsel submits that the impugned Order therefore deserves to be set aside giving liberty to the accused to raise the issue of jurisdiction after being summoned by the learned J.M.F.C. In this context, Shri Surjuse, learned Counsel has placed reliance on the decisions in the case of Motorola Incorporated v. Union of India and others(2003 ALL MR(Cri) 1903) and M/s. Martin Lottery Agencies Ltd. and others v. Shri S. Manimaran, Editor and another(2004 (4) Cri 173).

A perusal of the said two decisions shows that there is nothing in the aforesaid two decisions i.e. in the case of Motorola Incorporated v. Union of India and others(supra) and as well as in M/s. Martin Lottery Agencies Ltd. and others v. Shri S. Manimaran, Editor and another(supra) to suggest that a Magistrate before issuing process is not entitled to look into his own jurisdiction to try an offence before issuing process in a given case.

Admittedly, the complainant as well as the accused are permanent residents of Surat in the State of Gujarat, and, therefore in the absence of any averments or allegations in the complaint it is safe to infer that the complainant had lent the money, if at all, at Surat in Gujarat, and accused No. 1 in turn had issued the subject cheque at Surat on his account maintained at Surat in payment thereof. The notice was issued on behalf of the complainant, and, therefore it is safe again to infer that the accused was required to make the payment not to the advocate at Ponda but to the complainant at Surat at whose instance the notice was issued, and this aspect of the case has been dealt with in 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, stating that when the accused after having received the statutory notice fails to make the payment to the complainant at his address where he permanently resides, commits the offence at the place where he permanently resides. In other words, the notice issued by the advocate from Ponda was meant to make the payment to the complainant at Surat in the State of Gujarat and not to the Manager who runs the complainant''s Office at Ponda or his attorney. Except for presenting the cheque for collection at Ponda where the complainant has a branch office and an account, all other acts which are components of the offence u/s 138 of the Act had taken place in Surat in the State of Gujarat including the dishonour of the cheque by the Drawee Bank. By merely depositing the cheque at Ponda, in the facts of the case, the complainant could not have conferred territorial jurisdiction on the learned J.M.F.C., Ponda to try the offence u/s 138 of the Act. It is obvious that the complaint has been filed at Ponda to cause harassment to the accused. The impugned Order is not at all contrary to the law laid down by the Apex Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and another(supra) but is in accordance with it, as all the acts spelt out in para 14 of the Judgment in K. Bhaskaran v. Sankaran Vaidhyan Balan and another(supra) have taken place at Surat, in Gujarat. In fact, the learned J.M.F.C. has noted as follows:

At this juncture itself, I would like to observe that the complainant has never alleged that the transaction between the accused and the complainant took place at Ponda. I gather from the power of attorney document, that the complainant resides and carries out his business at Gujarat. The accused is a resident of Gujarat. The cheque was issued by the accused on the Surat branch of Citibank. I also find that the cheque was handed over at Gujarat.

In the present case, the transaction took place at Surat. Each and every party to the transaction is based at Surat. The payment was also made in Surat. No part of the transaction took place in Goa. The complainant has done this exercise to send the cheque to Ponda, purely to take the benefit of the decision of the Hon''ble Supreme Court.

In the circumstances, therefore, the impugned Order cannot be faulted. There is no merit in this petition and the same is hereby dismissed.