Sh. Manoj Kumar, Sh. Amit Arora and M/s. Chitra Talkies vs Smt. Navita Chug, Sh. Sameer Arora and Smt. Anu Uppal

Kuldip Singh, Judge

This is a petition u/s 482 Cr.P.C. for quashing proceedings in Case No. 294-3 of 2009 u/s 138 of Negotiable Instruments Act, 1881, pending in the Court of learned Judicial Magistrate Ist Class, Court No. 3, Shimla. The facts in brief are that Om Parkash had instituted complaint u/s 138 of Negotiable Instruments Act, 1881 (for short, the Act) against the petitioners, on the basis of cheque dated 31.1.2009 amounting to Rs. 15,00,000/- drawn on Jammu & Kashmir Bank Ltd. Branch Office, Shastri Market, Amritsar. It has been alleged that petitioners No. 1 and 2 were partners/incharge of petitioner No. 3 firm and responsible for the conduct of its business had issued said cheque for discharge of existing legally enforceable liability. The cheque on presentation with the banker for encashment was dishonoured and was returned to the complainant with refusal memo dated 27.7.2009 with remarks "funds insufficient". Notice dated 29.7.2009 was issued but no payment was made and therefore, complaint u/s 138 of the Act was filed.

The trial Court took cognizance and issued notice to the petitioners. The learned trial Court put notice of accusation to petitioners No. 1,2 on 14.10.2011 and fixed the case for evidence. The petitioners have prayed for quashing of proceedings on the grounds that complaint is not maintainable, no cause of action accrued within the jurisdiction of Court at Shimla. The Courts at Amritsar alone have jurisdiction. The complaint was filed at Shimla since Om Parkash predecessor of respondent was residing at Shimla. The cheque was drawn on Jammu & Kashmir Bank Ltd. branch office Shastri Market, Amritsar and was dishonoured by the said branch at Amritsar. The presentation of cheque at Shimla and issuance of notice at Shimla do not give rise to cause of action at Shimla. The Court at Shimla has no jurisdiction. In the complaint vague allegations have been made. The complaint is malafide, false and frivolous. There was no transaction between petitioners and Om Parkash, who had no cause of action against the petitioners. The petitioners No. 1 and 3 were residing beyond the jurisdiction of Court at Shimla, no inquiry was conducted by learned Magistrate in terms of Section 202 Cr.P.C. The learned Magistrate has relied upon statement of complainant and documents tendered in evidence but no enquiry was conducted u/s 202(1) Cr.P.C. before issuing process. The submission has been made for quashing the proceedings.

Heard. The proceedings u/s 138 of the Act have been assailed on the grounds of jurisdiction, there was no transaction between petitioners and late Om Parkash and therefore, the complaint is not maintainable as no legally enforceable liability of Om Parkash or respondent is in question. The learned Magistrate has not followed the procedure u/s 202 Cr.P.C. as petitioners No1,3 are residents outside the local jurisdiction of learned Magistrate.

A copy of complaint has been placed on record. I have gone through the complaint. It has been stated in the complaint that for the discharge of an existing legally enforceable liability, the accused had issued a cheque bearing No. 124408 dated 31.1.2009 payable at the Jammu & Kashmir Bank Limited, B/o Shastri Market, Amritsar for a valuable consideration of Rs. 15,00,000/- in favour of complainant. The cheque was returned to the complainant with the remarks "insufficient funds". The complainant issued notice dated 29.7.2009 to the accused asking them to make payment on the cheque amount. The accused even after receipt of notice did not make the payment of the cheque amount.

In view of averments made in the complaint, it cannot be said that allegations in the complaint are vague. The notice of accusation has already been put to the accused on 14.10.2011 and no specific prayer for setting aside, quashing of notice of accusation has been made in the petition. The plea of the petitioners that complaint is not maintainable as no legally enforceable liability of Om Parkash or respondents is in existence will be considered in the trial. The necessary averments in the complaint have been pleaded. The scope u/s 482 Cr.P.C. is limited.

It has been contended that the cheque was payable at Amritsar, therefore, Court at Shimla has no jurisdiction to try the complaint. It has been pleaded that deceased complainant Om Parkash was residing at Shimla and cheque was presented at Shimla but this is not enough for Court at Shimla to exercise jurisdiction when the cheque was payable at Amritsar. In Cr. MMO No. 162 of 2011, Smt. Bhavna Mukesh Ojha vs. Bhup Singh decided on 5.12.2011, a similar question was raised that the presentation of cheque at Shimla will not give jurisdiction to the Court at Shimla when the cheque in that case was drawn on Bank of India, Mazgaon Branch, Mumbai. In that judgment K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, , Shri Ishar Alloy Steels Ltd. Vs. Jayaswals NECO Ltd., , Musaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. and Others, and other judgments were considered and it has been held as follows:-

"The respondent had deposited the cheque in question for collection to his banker at Shimla. The cheque in question was returned to respondent through his banker after dishonour at Shimla. The return of cheque after dishonour has direct relation for completion of commission of offence u/s 138 of the Act. The court having territorial jurisdiction over the place where cheque has been returned after bouncing shall have also territorial jurisdiction to try complaint for offence punishable u/s 138 of the Act. In the complaint necessary averments regarding territorial jurisdiction of Shimla court have been pleaded. Therefore, Shimla court has jurisdiction to try the complaint. There is no merit in the petition."

In the present case also the cheque has been presented at Shimla where the deceased complainant Om Parkash was residing. The cheque was dishonoured at Shimla, therefore, Court at Shimla has jurisdiction to try the complaint u/s 138 of the Act.

It has been then contented by learned counsel for the petitioners that petitioners No. 1 and 3 reside beyond the local jurisdiction of the Court at Shimla. The Court below has not followed the procedure prescribed u/s 202 Cr.P.C. before issuing process. The learned counsel for the petitioners has relied Smt. Neeta Sinha vs. P.S. Raj Steels Private Ltd. 2010 (3) CCC 315 (P&H).

The sub section (1) of Section 202 Cr.P.C. provides that Magistrate shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.

There is no allegation that no preliminary evidence was recorded. In the petition, it has been stated that Court below has relied upon the statement of the complainant and the documents tendered in evidence while issuing the summoning order. It has not been elaborated what more inquiry was to be done by the Magistrate in terms of sub section (1) of Section 202 Cr.P.C. In Smt. Neena Sinha case (supra) the word ''inquiry'' in Section 202(1) Cr.P.C. has not been interpreted or explained. The learned counsel for the petitioners has also not elaborated the meaning of word ''inquiry'' used in Section 202(1) of the Code. In these circumstances, it cannot be said that there is violation of Section 202(1) of the Code before issuing process to petitioners No. 1 and 3. In addition, the petitioner No. 2 very much resides within the jurisdiction at Shimla Court. The transaction and offence is one. Thus, from any angle no fault can be found in issuing process to the petitioners and putting notice of accusation. There is no merit in the petition.

In view of above discussion, petition fails and is accordingly dismissed.

Cr. MP No. 967 of 2011

In view of disposal of main petition, this application is also disposed of.