Naseer vs Balaji and Suresh

K. Mohan Ram, J.—The above criminal original petitions have been filed by the accused in C.C. Nos. 113 and 114 of 2007 pending on the

file of the Judicial Magistrate No. 1, Chengalpattu, seeking to quash the proceedings therein.

The said cases were filed by the respective respondents u/s 138 of the Negotiable Instruments Act, 1881. The contention of the petitioner is that

the place of residence of the complainants is Pondicherry, the place of residence of the petitioner/accused is Ramanathapuram, UTI Bank where

the cheques have been drawn is situated at T. Nagar, Chennai and the Indian Overseas Bank, where the cheques have been presented for

realisation is situated at Thirupuvanai and as such the complaints ought to have been filed in any one of the Courts situated at the above said places,

but the complaints have been filed before the Judicial Magistrate No. 1, Chengalpattu, within whose territorial jurisdiction no cause of action has

arisen. Since the Court situated at a place from where the legal notice has been issued will not be clothed with any territorial jurisdiction.

Mr. C. Jagadish, learned Counsel appearing for the petitioner was heard on the above said contentions raised in the petitions.

When this Court brought to the notice of the learned Counsel the decisions of the Hon''ble Apex Court and this Court reported in (i) K.

Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, and (ii) Narang Industries Ltd. and another Vs. Ashok Leyland Finance Ltd., the learned

Counsel submitted that in the decision of the Hon''ble Apex Court, the question of territorial jurisdiction did not directly arose for consideration and

the Hon''ble Apex Court has not categorically held that the place of issue of legal notice will confer jurisdiction on the Court situated therein. The

learned Counsel sought to distinguish the decision of this Court reported in Narang Industries Ltd. and another Vs. Ashok Leyland Finance Ltd.,

by contending that in that case the registered office of the de facto complainant was located at Madras, from where the legal notice was issued and

hence the said decision does not lay down the principle that the Courts situated at the place from where the legal notice was issued would have

territorial jurisdiction to entertain a complaint u/s 138 of the Negotiable Instruments Act.

The learned Counsel further relied upon the decision of the Bombay High Court (Aurangabad Bench) in Lakshmi Travels, Nagpur v. G.E.

Country Wide Consumer and Anr. reported in C.L.T. (1) 2007 1116 in support of his contentions. In the said decision in paragraph 7 it has been

observed as under

The contention as raised by the learned Counsel in favour of complainant that the above judgment of the Apex Court in K. Bhaskaran Vs.

Sankaran Vaidhyan Balan and Another, supports his case to this extent that giving of notice in writing to the drawer of the cheque demanding

payment of the cheque amount and failure of the drawer to make payment within 15 days from the notice gives cause of action only at

Aurangabad. This contention has no force. The Apex Court, no where dealt with this aspect. What has been decided by the Apex Court in K.

Bhaskaran and Prem Chand (Supra) refers to the basic ingredients which are necessary for an offence u/s 138 of the Act. There is no dispute

about this that all these ingredients are necessary. We are concerned with the cause of action in the present matters. The demand notice is a must.

But a place of issuance of notice and no payment thereafter cannot be sufficient to file complaint u/s 138 N.I. Act. The notice was though sent from

Aurangabad, but received at Nagpur. The party failed to make the payment as per notice. Therefore, issuance of notice from Aurangabad itself

cannot give cause of action to file complaint at Aurangabad.

Except the above said contention no other submissions were put forth by the learned Counsel appearing for the petitioner.

I have carefully considered the said submission made by the learned Counsel for the petitioner.

In the decision reported in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, the Hon''ble Apex Court has held as under in paragraphs

12 to 16 as follows:

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 enquired 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 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. 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) * * *

(d) 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 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.

A careful perusal of the above said decision of the Hon''ble Apex Court makes it clear that one of the principal issues that arose for

consideration before the Hon''ble Apex Court was the competency of the trial court in entertaining the complaint u/s 138 of the Negotiable

Instruments Act. The specific contention put forth therein by the appellant was that the trial court had no territorial jurisdiction to entertain the

complaint and while considering such a contention only the Hon''ble Apex Court has held as above. In the said decision, the Hon''ble Apex Court

has pointed out in para 14 the following acts as the components for an offence u/s 138 of the Negotiable Instruments Act viz.,

14...(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 after observing so, in para 16 the Hon''ble Apex Court has

laid down as under:

16...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.

Thus it is clear that the Hon''ble Apex Court has analysed the relevant provisions of the Criminal Procedure Code relating to territorial

jurisdiction and the provisions of the Negotiable Instruments Act and thereafter only has held that 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.

Therefore with great respect to the learned Judge of the Bombay High Court (Aurangabad Bench), I am unable to accept the view taken by

him in Lakshmi Travels, Nagpur v. G.E. Country Wide Consumer and Anr. reported in C.L.T. (1) 2007 1116, for the said reasons, the contention

of the learned Counsel cannot be countenanced.

As far as the decision reported in Narang Industries Ltd. and another Vs. Ashok Leyland Finance Ltd., is concerned, though the contention of

the learned Counsel for the petitioner is partly correct in the sense that in that case, the Registered office of the complainant was located at Madras

and the legal notice demanding payment was issued from Madras, the learned Judge has held in that decision in para 14 as under:

14... (a) to (h) ...

(i) u/s 179 Cr.P.C., 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 enquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. What Section

179 Cr.P.C., provides is that when a person is accused of the commission of any offence by reason of two things, by reason first, of anything

which has been done, and secondly, of any consequence which has ensued, then the jurisdiction is conferred on the Court where the act has been

done or the consequence has ensued. The offence, therefore, must be charged by reason of the two things, the act done and the consequence

which ensued and the consequence, therefore, forms the, necessary part of the offence.

(j) to (1) ...

(m) In the light of the principles discussed above as laid down in the above decisions, the place from which the notice has been issued, intimating

the dishonour of the cheque and demanding the cheque amount to be paid to the creditor and the failure to make payment would also have the

jurisdiction, since the consequence as contemplated u/s 179, Cr.P.C. for the act done by the accused, by issuing cheque which was dishonoured

due to which the demand of the amount and failure to make the payment had ensued.

Therefore the said decisions of the Hon''ble Apex Court as well as this Court directly covers the issue that arises for consideration in these cases

and the same negative the contention of the learned Counsel for petitioner.

The learned Counsel for the petitioner submitted that if the trial is to take place in the Court at Chengalpattu, both the complainants and the

accused and the witnesses have to go there from different parts of the State and everybody will be put to hardship and therefore, submitted on that

ground that the complaint may be quashed and the respondents may be directed to present the complaints before the competent Court within

whose territorial jurisdiction one of the other causes of action has arisen.

This Court is unable to accept the said contention. Merely because the parties to the criminal complaint lodged by the respondents will be put

to hardship, that cannot be a ground for quashing the proceedings but it may be a good ground to seek transfer of the cases to some other

competent Court which will be convenient for the parties to attend.

For the aforesaid reasons the criminal original petitions fail and the same are dismissed. Consequently, the connected miscellaneous petitions

are also dismissed. No costs.