N.T. Joseph vs R.S. Sharma and Others

Dr. Mrs. Sarojnei Saksena, J.—The petitioner has filed this petition u/s 482 of the Criminal Procedure Code, for quashing the complaint dated December 23, 1992, annexure "P-1", pending in the Court of the Sub-Divisional Judicial Magistrate, Phagwara, and the summoning order passed therein.

The adumbrated facts of the case are that the complainant lodged the complaint, annexure "P-1", in the Court of the Sub-Divisional Judicial Magistrate, Phagwara, alleging that the petitioner borrowed Rs. 50,000 from him. For returning this amount, the petitioner-accused issued two cheques of Rs. 25,000 each in favour of the complainant on August 15, 1992, and August 25, 1992, respectively. The cheques were drawn on Union Bank of India, Cochin. The petitioner-accused assured the complainant that the cheques shall be honoured when presented. The respondent-complainant presented these cheques with his banker, i.e., State Bank of Patiala, Phag-wara Branch, for collection, but they were dishonoured with the remarks "insufficient funds in the account". The intimation dated November 6, 1992, was sent to the complainant-respondent. Thereupon the complainant-respondent gave notice on November 9, 1992, to the petitioner-accused, which was served on him on November 13, 1992. Even thereafter, he failed to make the payment. Hence, the complaint, annexure "P-1", was lodged that he has committed an offence u/s 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code.

On the presentation of this complaint, summons were issued to the petitioner-accused and later on bailable warrants were also issued on different dates as he failed to appear before the trial court.

In the meantime, the petitioner filed a petition in the High Court of Kerala at Ernakulam (Criminal M. C. No. 2170 of 1993), praying for anticipatory bail, which was granted. The petitioner also filed a petition u/s 482 of the Criminal Procedure Code, before the High Court of Kerala for quashing the said complaint, annexure "P-l". During the pendency of that petition, proceedings pending in the trial court were stayed. The respondent-complainant moved the Supreme Court against that order of the High Court of Kerala, whereupon his appeal was allowed and the order dated December 8, 1993, passed by the High Court of Kerala in Crl. M. C, No. 3197 of 1993, in Crl. Misc. No. 2177 of 1993 (Crl. Case No. 123 of 1992) was set aside. The proceedings u/s 482 of the Criminal Procedure Code, pending before the High Court of Kerala were also directed to be treated as dismissed. Thereafter, the petitioner has filed the present petition alleging that he never borrowed Rs. 50,000 from the complainant-respondent; the cheques were issued at Cochin ; they were handed over to the complainant at Cochin ; the complainant-respondent does not reside at Phagwara, but since he knows influential persons at Phagwara, deliberately the complaint has been filed at Phagwara so that the petitioner may be called there and taken in custody in connection with any other false criminal case and thus he apprehends false implication at the hands of the complainant-respondent. Hence, it is prayed that the complaint, annexure "P-1", and the consequent proceedings therein be quashed.

The respondent-complainant filed a reply and denied the allegations made in the petition. It is objected that the petitioner is deliberately avoiding his appearance in the court below. He was working as Private Secretary (Gazetted) in the Ministry of Personnel from where he retired on December 31, 1991. Government accommodation was allotted to him at Delhi, which has now been allotted to another officer after his retirement. When the SLP was filed in the Supreme Court, he was a resident of Delhi but it is averred that he is not a permanent resident of Delhi. He is a permanent resident of Phagwara, District Kapurthala (Punjab) where he was born and brought up and educated up to graduation. Therefore, he deposited the impugned cheques for collection after they became due in his account with the State Bank of Patiala, G. T. Road, Phagwara branch. The petitioner''s aged parents are also residing at Phagwara. After retirement, he has started living at Phagwara and has also started his practice in the field of homeopathy there. Hence, the Phagwara court has jurisdiction to try this complaint. All the allegations regarding tbe petitioner''s apprehension of false implication are denied.

The only point agitated before me is whether the Phagwara court could be said to have territorial jurisdiction to try the complaint, annexure "P-1" ?

The valiant effort of the petitioner''s learned counsel in his effective persuasion and meticulous preparation is that the complainant-respondent is a resident of Delhi ; the cheques were issued at Cochin ; the petitioner is a resident of Cochin ; the cheques were post-dated cheques ; the complainant-respondent is not residing at Phagwara but he knows influential persons at Phagwara and has deliberately filed the complaint at Phagwara. Thus, the Phagwara court has no territorial jurisdiction to try the complaint and hence the complaint be quashed.

To buttress his contention, the petitioner''s learned counsel has relied on P.K. Muraleedharan Vs. C.K. Pareed and Another, .

The respondent''s learned counsel strongly stressed that the complainant-respondent is a born resident of Phagwara ; he was born and brought up there ; he received his education also at Phagwara ; later on in connection with his service, he was posted at Delhi; he retired in 1991; when he was in Government service, he was allotted Government accommodation ; now that house has been allotted to some other officer ; his old parents are also residing at Phagwara and his bank account is also in the Phagwara branch of State Bank of Patiala. He further contended that no doubt, the cheques were issued at Cochin, they were drawn on Union Bank of India, Cochin branch, they were dishonoured by the aforesaid bank and the petitioner resides in Cochin, but the cheques were presented by the complainant at Phagwara in State Bank of Patiala, Phagwara branch, for collection. This bank issued notice to the petitioner, intimating that both the cheques have been dishonoured. The complainant received this intimation at Phagwara. Thereafter, he sent notice to the petitioner-accused from Phagwara and thus the Phagwara court has territorial jurisdiction to try this offence. This case squarely falls u/s 178 of the Criminal Procedure Code. It is for the complainant-respondent to select the forum and, therefore, the Phagwara court has jurisdiction to try the complaint, annexure "P-1". To augment his contentions, he has relied on T.K. Khungar v. Sanjay Ghai [1993] 3 RCR 612 ; Rakesh Nemkumar Porwal Vs. Narayan Dhondu Joglekar, and M.M. Malik and Others Vs. Prem Kumar Goyal, .

The authority relied on by the petitioner''s learned counsel is distinguishable on the facts. The authorities relied on by the respondent''s learned counsel apply with full force in this case. In T.K. Khungar''s case [1993] 3 RCR. 612, it is held that an offence u/s 138 of the Negotiable Instruments Act consists of several acts done in different local areas. The cheque was issued at Aurangabad, presented by the complainant-respondent at Khanna, the intimation of dishonour received at Khanna, notice served upon the petitioners to make the payment was issued at Khanna. In this situation either of the courts at Aurangabad or Khanna had the jurisdiction to try the offence in view of the provisions of Clause (d) of the above-quoted Section 178 of the Criminal Procedure Code. It was for the complainant-respondent to select the forum and the Khanna court thus had the jurisdiction to try the petitioner for the offence complained of.

In this case, admittedly the petitioner-accused resides in Cochin. He issued the cheques at Cochin. They were drawn on Union Bank of India, Cochin branch, but these cheques were presented for collection at Phagwara in the State Bank of Patiala, Phagwara branch. The complainant was intimated by this branch at Phagwara that the cheques have been dishonoured as they were sent to Cochin for collection. From Phagwara, the complainant sent a notice to the petitioner-accused to make the payment. The complainant has stated that he has started residing at Phagwara. He has his hank account also in Phagwara. The complainant has the choice to select the forum. Hence, in my considered view, it cannot be said that the Phagwara court has no territorial jurisdiction to decide the complaint-annexure "P-1".

Further, the apex court has held in State of Madhya Pradesh v. K.P. Ghiara [1957] Cri. L.J. 322 : AIR 1957 SC 196, 197 that "the venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts there are positively disproved, ordinarily the court, where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken u/s 202 of the Criminal Procedure Code", From this point of view also, from a plain perusal of the complaint, annexure "P-l", it is evident that the Phagwara court has also the territorial jurisdiction to try this complaint.

The trial magistrate has only passed the summoning order and has issued bailable warrants against the petitioner. The evidence is yet to be recorded. The charge is yet to be framed against the petitioner if the offence is made out. Trial has not yet commenced. Invoking of inherent powers prior to commencement of trial and leading of evidence, is not desirable. This power should be exercised sparingly and in very exceptional cases. For this proposition, I rely on Lalit Mohan Mondal and Others Vs. Benoyendra Nath Chatterjee, , State of Bihar v. K.J.D. Singh [1994] 2 R C. R. 37, State of T.N. Vs. Thirukkural Perumal, .

Lastly, it is contended that the petitioner be allowed to appear through his counsel as he apprehends not only manhandling but also false implication in any criminal case at the instance of respondent No. 1. Grant of such type of relief is not appropriate in this petition. However,, if the petitioner makes such a request before the trial magistrate, the magistrate is competent to pass appropriate orders on such a petition.

On all these counts, finding the petition meritless, it is hereby dismissed. However, the petitioner is directed through his counsel to appear before the lower court at Phagwara on June 3, 1995.