M/s. Samrat Tractors vs M/s. Bhopal Tractors

D.K. Paliwal, J.—This petition is u/s 482 of Cr.P.C. for quashing order dated 1.8.2008 passed by JMFC, Gwalior, in Criminal Case No. 7196/2008, whereby cognizance u/s 138 of the Negotiable Instruments Act (in short the Act) has been taken against the petitioner and summon has been issued for his appearance. The petitioner has also challenged the order before Third ASJ, Gwalior, in Criminal Revision No. 53/09 which has been dismissed. The facts giving rise to this petition in brief are that respondent/complainant has filed a complaint u/s 138 of the Act alleging that petitioner gave cheque No. 576239 dated 1.8.07 of Rs. 17,00,000/- in connection with purchase of tractors and spare parts. When the respondent submitted the aforesaid cheque, the same was dishonoured. A notice was given to the petitioner, but neither it was replied, nor the payment was made. On the basis of the complaint, the learned JMFC, Gwalior, has taken cognizance u/s 138 of the Act and issued summon against the petitioner for his appearance. This order was challenged on behalf of the petitioner in the Court of Third ASJ, Gwalior, in Criminal Revision No. 53/09 which has been dismissed vide order dated 30.5.09. Being aggrieved, the petitioner has knocked the doors of this Court for invoking the extraordinary powers of this Court u/s 482 of Cr.P.C.

It is submitted by learned counsel for the petitioner that petitioner/ firm was registered in the year 2002 in the name of Samrat Tractors and also the authorized dealer of the Sonalika Tractor. The respondent is stockiest of Sonalika Tractor and only a carrying or forwarding agent of Sonalika Tractor. As per the routine practice, no stockiest can supply any tractor without the consent of the Area Manager, D.G.M. or G.M. to the dealer and for supplying the tractor, the stockiest has to keep a security from the dealer, and hence, the petitioner gave blank cheques and two stamp papers to the respondent in the month of October, 05 for keeping the same as security. Ashish Shrivastava, who was the Area Manager, and thereafter Dinesh Agrawal, who is the proprietor of respondent/firm, supplied the tractors for which demand drafts were received by M/s. International Tractors, Hoshiyarpur. As the godown of the petitioner is at Lucknow which is distant from Hoshiyarpur, hence, after receiving the demand drafts, the tractors were sent to the godown of the complainant. It is the general practice that no demand draft in the name of stockiest is accepted by the Sonalika Tractors and only demand drafts in the name of Sonalika Tractors are accepted and the commission of the stockiest is given by the Sonalika Tractors. It is further submitted that in the routine course of his business, the petitioner gave five blank cheques to the respondent for keeping the same as security, as the tractors were supplied by the stockiest and its payment was made in the form of DD to Sonalika Tractors. The cheques, which were kept as security, were not given in lieu of any purchase made by the petitioner from the respondent. This is one of the reason that is why complainant has not mentioned any tractor number, chasis number or engine number of the tractors in the complaint. It is further submitted that in the month of September, 2006, the stockiest-ship of the respondent was closed by the Sonalika Tractors on account of his misconduct. Therefore, the petitioner has requested the complainant to return those cheques alongwith stamps, but the complainant did not return those cheques and lodged this complaint. It is further submitted that since there is not direct dealing of the petitioner with the respondent and the cheque has been given by the petitioner to respondent/complainant for keeping the same as security, therefore, no offence is made out. The respondent misled the Court by saying that notice was not replied. The reply of notice was given by the petitioner through his counsel on 15.10.2007. It is further submitted that alleged cheque was given at Lucknow and no transaction has taken place at Gwalior, therefore, the JMFC, Gwalior, has no territorial jurisdiction to entertain the complaint. It is further submitted that prima facie no offence u/s 138 of the Act is made out, therefore, the proceeding before the JMFC, Gwalior, is an abuse of process of law. It is prayed that proceeding of Criminal Case No. 7196/2008 pending in the Court of JMFC, Gwalior, be quashed.

The learned counsel for the respondent/complainant submits that the cheque has been given by the petitioner which has been dishonoured. The petitioner has not replied the notice, nor paid the money, therefore, prima facie offence u/s 138 of the Act is made out. It is further submitted that registered office of the respondent/ complainant is situated at 99, Sharda Vihar, City Center, Gwalior. Notice has been sent from Gwalior. The intimation of dishonour of cheque has been received at Gwalior. Therefore, JMFC, Gwalior, has territorial jurisdiction to entertain the complaint. It is prayed that petition be dismissed.

In order to appreciate the rival submissions of learned counsel for the parties, I have perused the record.

It is not disputed that respondent/complainant is the stockiest of Sonalika Tractors manufactured by International Tractors, Hoshiyarpur Punjab, and the petitioner is the dealer of the Sonalika Tractors, having its business at Amaniganj, Faizabad, U.P. As per the allegation of the complaint, during the course of business transaction, the petitioner purchased Sonalika Tractors and its spare parts from the respondent and gave a cheque No. 576239 dated 1.8.2007 of Rs. 17 lacs of Union Bank of India, Branch Akbarpur. On being submitted the cheque at HDFC Branch Gwalior, the same was returned with a remark that "not arranged for". The photocopy of the cheque dated 1.8.07 reveals that it is signed by Ravindra Nath Shukla, proprietor of Samrat Tractors, in favour of M/s. Bhopal Tractors Pvt. Ltd. Gwalior. The memorandum of Union Bank of India, reveals that the aforesaid cheque is returned for the reason No. 6-"not arranged for".

The submission of learned counsel for the petitioner is that blank cheques have been given by the petitioner as security and not for discharging any lawful debt. This submission can only be examined at the trial and not at this stage. Section 139 of the Act raises a legal presumption which provides as under:-

Presumption in favour of holder:- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability.

Thus, in view of the aforesaid provision, the submission of learned counsel for the petitioner is devoid of any merits.

The next submission of learned counsel for the petitioner is that JMFC, Gwalior, has no territorial jurisdiction to entertain the complaint because the cheque has not been given at Gwalior, no business transaction has taken place at Gwalior, the petitioner is not doing any business from Gwalior, on the other hand, the learned counsel for the respondent submits that registered office of the respondent/complainant is at Gwalior, the cheque has been issued in favour of registered office at Gwalior, notice has been given from Gwalior and cheque has been returned unpaid at Gwalior, therefore, JMFC, Gwalior, has the territorial jurisdiction.

For deciding the question of territorial jurisdiction, it would be useful to refer the provisions of Sections 177, 178 and 179 of Cr.P.C. which reads thus:-

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.

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.

Offence triable where act is done or consequence ensues.- Where 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 Supreme Court in Harman Electronics (P) Ltd. and Another Vs. National Panasonic India Ltd., referring the earlier decision in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, 2 observed as under:-

The offence u/s 138 of the Act can be completed only with the con-catenation of a number of acts. 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 five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is asine qua nonfor the completion of the offence u/s 138 of the Act. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:

Where the offence 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.

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 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.

In the instant case, registered office of the respondent is situated at 99, Sharda Vihar, City Center, Gwalior, the cheque has been issued in favour of M/s. Bhopal Tractors Pvt. Ltd. Gwalior, the respondent/complainant has submitted the cheque for encashment at HDFC Bank, Branch Gwalior, and the cheque has been returned unpaid by the HDFC Bank, Branch Gwalior. The petitioner has filed a copy of the reply of notice which goes to show that notice was issued by Shri Ashok Singh Jadaun, Advocate on behalf of M/s. Bhopal Tractors Pvt. Ltd., Sharda Vihar, Gwalior. Thus, it is clear that in the light of ratio laid down by the Apex Court in M/s. Harman Electronics (supra), the JMFC, Gwalior, has territorial jurisdiction to entertain the complaint.

The Hon''ble Apex Court in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, making reference of the following cases:-

(i) R.P. Kapur Vs. The State of Punjab,

(ii) State of Karnataka Vs. L. Muniswamy and Others,

(iii) Chandrapal Singh and Others Vs. Maharaj Singh and Another,

(iv) Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others,

(v) State of Haryana and others Vs. Ch. Bhajan Lal and others,

(vi) Janata Dal Vs. H.S. Chowdhary and Others,

(vii) G. Sagar Suri and Another Vs. State of U.P. and Others,

(viii) Roy V.D. Vs. State of Kerala,

(ix) Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, ; and

(x) Indian Oil Corporation Vs. NEPC India Ltd. and Others,

has observed in para 23 and 24 as under:-

This court in a number of cases has laid down the scope and ambit of courts powers u/s 482, Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power u/s 482, Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

Inherent powers u/s 482, Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

In the instant case, prima facie the complaint discloses the ingredients of offence punishable u/s 138 of the Act, therefore, no case is made for exercising extraordinary powers u/s 482 of Cr.P.C. The petition is devoid of any merits and is liable to be dismissed. Consequently, the petition is dismissed.