Bombay High Court
M/S. Jinraj Paper Udyog vs M/S. Dinesh Associates on 10 November, 2008
Bench: R. C. Chavan
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Criminal Application No.2424 of 2008
In
Criminal Appeal No.390 of 2008,
Criminal Application No.2425 of 2008
In
Criminal Appeal No.391 of 2008,
Criminal Application No.2426 of 2008
In
Criminal Appeal No.392 of 2008,
Criminal Application No.2428 of 2008
In
Criminal Appeal No.393 of 2008,
Criminal Application No.2427 of 2008
In
Criminal Appeal No.399 of 2008,
Criminal Appeal No.390 of 2008,
Criminal Appeal No.391 of 2008,
Criminal Appeal No.392 of 2008,
Criminal Appeal No.393 of 2008,
And
Criminal Appeal No.399 of 2008
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Criminal Application No.2424 of 2008
In
Criminal Appeal No.390 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Applicant
Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
Accused
Criminal Application No.2425 of 2008
In
Criminal Appeal No.391 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Applicant
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Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
Accused
Criminal Application No.2426 of 2008
In
Criminal Appeal No.392 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Applicant
Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
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2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
Accused
Criminal Application No.2428 of 2008
In
Criminal Appeal No.393 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Applicant
Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
Accused
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Criminal Application No.2427 of 2008
In
Criminal Appeal No.399 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Applicant
Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
Accused
Criminal Appeal No.390 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Appellant
Versus
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1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
ig Accused
Criminal Appeal No.391 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Appellant
Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
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Shahadara, Delhi. ...Respondent/
Accused
Criminal Appeal No.392 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Appellant
Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
Accused
Criminal Appeal No.393 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Appellant
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8
Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
Accused
Criminal Appeal No.399 of 2008
M/s. Jinraj Paper Udyog,
2/26, Ansari Road, Delhi,
Office also at Jejani Sadan,
Itwari Bhaji Mandi, Nagpur,
through its Proprietor,
Jinraj s/o Ramkisan Jain. ... Appellant
Versus
1. M/s. Dinesh Associates,
Proprietorship Concern,
3796/2, Gali Lohe Wali,
Behind Namkeen Shop,
Charkhewalan, Chawari Bazar,
Delhi-110 006.
2. Dinesh s/o Gopichand Gupta,
Proprietor of M/s. Dinesh Associates,
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9
R/o D-145, "Priyadarshini Vihar",
Opp. Lovely Public School,
Shahadara, Delhi. ...Respondent/
Accused
Shri R.P. Joshi, Advocate for Applicant/Appellant.
S/Shri Anand.S. Joshi, and Shri D.M. Gabhane, Advocates for Respondent.
Coram : R.C. Chavan, J.
Date of Reserving the Judgment : 23-10-2008
Date of Pronouncing the Judgment : 10-11-2008
JUDGMENT :
Criminal Application Nos.2424, 2425, 2426, 2427 and 2428 of 2008
By these applications under Section 378(4) of the Code of
Criminal Procedure Code original complainant seeks leave to file appeals
against the judgments of acquittal rendered by the learned Judicial
Magistrate First Class, Nagpur in five Summary Criminal Cases relating to
office punishable under Section 138 of the Negotiable Instruments Act.
When the applications and appeals were first listed, notice of final disposal
was directed to be issued. Thereafter R & P too was called and has been
received. In view of this, leave to file appeals granted. The applications are
allowed.
Criminal Appeal Nos.390, 391, 392, 393 and 399 of 2008
1. These five appeals are directed against the judgments of
acquittal rendered by the learned Judicial Magistrate First Class, Nagpur in
five criminal complaints in respect of offences punishable under Section 138
of the Negotiable Instruments Act.
2. Facts which occasioned filing of those complaints are
identical. There is substantially no dispute about facts which are material
for deciding these appeals. Between 24-5-2002 and 24-3-2003, the
complainant supplied paper worth Rs.20,38,357/- to accused No.1, whose
proprietor is accused No.2. Both the complainant and accused ordinarily do
their business at Delhi and paper was supplied at Delhi. Five cheques of
Rs.60,000/- each, drawn on Indian Overseas Bank, Delhi were delivered by
the accused to complainant towards these dues. These cheques were lodged
by the complainant for collection with his bank in Nagpur, where he claims
to have an office. The bank on which the cheques were drawn, i.e. Indian
Overseas Bank, Delhi, intimated to the complainant's bankers that the
cheques were dishonoured, and the said bank, in turn, sent intimation of
dishonour to complainant. The complainant sent notices of demand from
his Nagpur office to the accused, which were duly received by them. As the
accused failed to pay, the complainant filed five complaint cases before the
learned Judicial Magistrate First Class, Nagpur on 3-2-2004.
3. Upon issuance of process, accused appeared, pleaded not
guilty, but did not raise any question about jurisdiction of the Courts at
Nagpur to entertain the complaints. Complainant tendered affidavits in
evidence on 26-7-2006 in these cases and was cross-examined.
4. On 4-9-2006, this Court (in fact, I) delivered a judgment in
Ahuja S/o Nandkishore Dongre Vs. State of Maharashtra and another,
reported at 2006 ALL MR (Cri) 3357, in respect of jurisdiction in cases of
offence punishable under Section 138 of the Negotiable Instruments Act,
holding that presentation of a cheque contemplated its presentation to the
drawee bank. This judgment is reportedly challenged before the Hon'ble
Supreme Court by filing a Special Leave Petition on 2-2-2007 in which the
Apex Court is stated to have issued notice.
5. On 13-11-2007, the accused filed his own affidavits, and
examined himself in defence. By judgment dated 2-5-2008, the learned
Magistrate proceeded to acquit the accused in all the five cases relying on
my judgment in Ahuja Nandkishore Dongre's case.
6. The learned counsel for the appellant fairly concedes that
the entire transaction had in fact taken place in Delhi. However, he states
that since such cases take a longer time for decision in Courts in Delhi, his
client chose to lodge the cheques for collection with a bank at Nagpur and
also issued a notice from an office located at Nagpur in a business
associate's premises, so that he could lodge a complaint in Nagpur Courts,
where adjudication is comparatively faster. According to him, if law
permitted this course, there was nothing wrong in choosing a forum.
7. His learned adversary submitted that in fact complainant
does not have any office in Nagpur. No registration under the Shops and
Establishments Act or other document is produced to show that there is such
an office. He was informed that even the account in bank at Nagpur, in
which the cheques were lodged, was opened just a day before the cheques
were actually lodged, though, no document to that effect is produced. The
learned counsel for the respondent further submitted that in face of my
judgment in Ahuja Nandkishore Dongre's case, which was binding on the
learned Magistrate, the Magistrate could not have decided the case
differently.
8. In this factual context, the rival contentions would have to
be examined. The learned counsel for the appellant is correct in contending
that if the learned Magistrate held that he had no jurisdiction, the only
course open to him was to return the complaint under Section 201 of the
Code of Criminal Procedure for presentation to proper Court. In fact, such
is the direction in Ahuja Nandkishore Dongre's case. Therefore, acquittal of
respondent by a Court professing lack of jurisdiction is unsustainable.
9. The learned counsel for the appellant next submitted that
the judgment in Ahuja Nandkishore Dongre's case was delivered
on 4-9-2006, long after the complaints were filed on 3-2-2004. No
objection had been raised to the jurisdiction of the Court till practically the
trial was over and, therefore, such objection could not have entertained by
the learned Magistrate. He submitted that in Ahuja Nandkishore Dongre's
case, the accused had filed an application taking objection to jurisdiction of
the Court immediately after process was issued and had approached this
Court under Section 482 of the Code of Criminal Procedure upon rejection
of his application. Such were not the facts in this bunch of cases.
Therefore, the judgment in Ahuja Nandkishore Dongre's case was
inapplicable. He pointed out that Section 462 of the Code of Criminal
Procedure even leaves undisturbed judgments rendered by Courts which
lacked territorial jurisdiction, unless it appears that such error has in fact
occasioned a failure of justice. Here, according to the learned counsel for
the appellant, far from there being any failure of justice, there is not even
any prejudice shown to have been caused. He submitted that it was unfair
on the part of the accused to participate in the trial without a demur and
take advantage of a judgment which came much after the case was filed.
10. The learned counsel for the respondent submitted that law
has not changed on account of judgment in Ahuja Nandkishore Dongre's
case, which merely explained the ratio of judgment in the case of K.
Bhaskaran Vs. Sankaran Vaidhyan Balan, reported at 1999 ALL MR (Cri)
1845 (S.C.). In any case, a judgment, declaratory of law, would apply even
on the date the appellant filed criminal complaints before the learned
Magistrate. Further, according to the learned counsel, occasions for an
accused to disclose his stand would arise first, only in course of cross-
examination of complainant, which the accused had done by eliciting in the
cross-examination that the lis had no causal connection with the forum. He
further submitted that accused could undoubtedly have followed the course
chosen by Ahuja Dongre, namely, applying for objecting to jurisdiction, but,
failure to do so has no consequences, since accused was under no duty or
obligation to follow only that course.
11. The learned counsel for the respondent submitted that in
fact proper stage for raising jurisdictional question is the trial itself and this
Court had discouraged application under Section 482 of the Code of
Criminal Procedure for quashing a complaint on account of lack of
jurisdiction in A. Chinnaswami Vs. M/s. Bilakchand Gyanchand Company,
reported at 1998(3) Bom.C.R. 120. In that case too, jurisdiction of Court of
Judicial Magistrate First Class, Chopada was invoked because cheques were
"presented" at Chopada branch of State Bank of India, though the
transaction had allegedly taken place at Coimbatore. In this context, this
Court observed that the question of jurisdiction is a mixed question of fact
and law and that the learned Magistrate would have to record evidence with
respect to the fact as to the place where the transaction took place. In view
of this, it has to be held that the accused in the present case had raised the
objection at a proper stage.
12. It is indeed correct that accused was not obliged to raise an
objection by specifically making an application and had sufficiently
indicated his stance at appropriate stage. Therefore, the learned Magistrate
was right in not shutting out this defence of the accused and rightly took it
into account.
13. As for the argument based upon Section 462 of the Code of
Criminal Procedure, the learned counsel for the respondent submitted, and
rightly in my view, that a distinction has to be drawn in the case of one who
allows a judgment to be delivered without demur, and one, who raises the
defence at a stage of trial when he is obliged to do so. Therefore, the
contention that if a judgment could not be questioned, proceedings at trial
too were beyond reproach is fallacious.
14. The learned counsel for the appellant relied on judgment of
Supreme Court in State of M.P. Vs. Bhooraji and others, reported at (2001) 7
SCC 679, where the Court held that a trial held before a competent Court
would not be vitiated by a procedural lapse. The High Court of Madhya
Pradesh in Meerabai Vs. Bhujbal Singh, reported at 1995 Cri LJ 2376 (MP),
had held that cases under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act needed to be committed to the Special Court
of Session. This was overruled by a Full Bench of the same Court, which
held that the Special Court could directly take cognizance without
commitment. This in turn was overruled by the Apex Court in Gangula
Ashok Vs. State of A.P., reported in (2000) 2 SCC 504, making commitment
necessary. Bhooraji's case was tried by appropriate Court, but without its
having been committed. The High Court ordered a fresh trial. On appeal,
the Supreme Court set aside the judgment, observing as under in para 21:
"21. The expression "a court of competent jurisdiction"
envisaged in Section 465 is to denote a validly constituted
court conferred with jurisdiction to try the offence or offences.
Such a court will not get denuded of its competence to try the
case on account of any procedural lapse and the competence
would remain unaffected by the non-compliance with the
procedural requirement. The inability to take cognizance of
an offence without a committal order does not mean that a
duly constituted court became an incompetent court for all
purposes. If an objection was raised in that court at the
earliest occasion on the ground that the case should have been
committed by a Magistrate, the same specified court has to
exercise a jurisdiction either for sending the records to a
Magistrate for adopting committal proceedings or return the
police report to the Public Prosecutor or the police for
presentation before the Magistrate. Even this could be done
only because the court has competence to deal with the case.
Sometimes that court may have to hear arguments to decide
that preliminary issue. Hence the argument advanced by the
learned counsel on the strength of the aforesaid decisions is of
no avail."
15. It may be seen that in Bhooraji's case, it was not that the
Court which tried the offenders had no jurisdiction. Upon commitment, the
case would have been tried by the same Court. Such is not the present case.
Here, the question whether Court at Nagpur has jurisdiction is very much in
issue. The question here is not of procedural lapse, but of the very
competence of the Court to take cognizance for want of jurisdiction. The
question here is not connected with procedural error covered by Section 465
of the Code of Criminal Procedure, dealing with irregular proceedings, and
so Bhooraji's case has no application, as rightly contended by the learned
counsel for the respondent.
16. In this view of the matter, it would be necessary to examine
whether the learned Judicial Magistrate, First Class, was right in concluding
that he lacked jurisdiction. The learned counsel for the respondent
submitted that in the face of judgment of this Court in Ahuja Dongre's case,
the learned Magistrate could not have held otherwise and, therefore, the
judgment is unassailable.
17. The learned counsel for the appellant submitted that
judgment in Ahuja Dongre's case is itself rendered per incuriam and it was
impermissible for this Court to "distinguish" the ratio of judgment of the
Apex Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan, reported at
(1999) 7 SCC 510=AIR 1999 SC 3762. Therefore, according to the learned
counsel, the judgment in Ahuja Dongre's case need not have been applied
and in any case, may not be applied, since it cannot stand with judgments of
Supreme Court on which the learned counsel sought to rely.
18. Before going into the question whether Ahuja Dongre's case
was decided per incuriam, it would be useful to recount as to what was
decided by the Hon'ble Apex Court in the case of K. Bhaskaran and how this
judgment was considered in Ahuja Dongre's case. The material part of
observations of the Apex Court on the question of jurisdiction, contained in
paras 14 to 16 of the judgment as reported at AIR 1999 SC 3762 may be
usefully reproduced as under :
"14. The offence under Section 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."
"15. 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 a sine qua non for
the completion of the offence under Section 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."
"16.
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 under Section 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 under Section 138 of the Act."
The above observations were considered in paras 14, 15, 17 to 19, 22 and
23 in Ahuja Dongre's case as under :
"14. In Bhaskaran's case, as a matter of fact, it was held
as proved that cheques in question have been issued at the
shop of P.W.3 within territorial limits of trial Court's
jurisdiction. The five ingredients enumerated by the Court in
paragraph 14 of the judgment would undisputedly attract the
provisions of Clause (d) of Section 178 of the Code of
Criminal Procedure, since it can be said that the offence
punishable under Section 138 of the Negotiable Instruments
Act consists of the five acts, enumerated in paragraph 14 of the
judgment.
It may be seen that clauses (2) and (3) in
paragraph 14 of the judgment refer to presentation of "the
cheque" to "the Bank" and returning the cheque unpaid by
"the drawee Bank". A reference to Section 138 of the
Negotiable Instruments Act, would also show that the section
begins, with reference to "a banker" and then goes on to refer
to "the banker"...... "is returned by the bank", ...... "by an
agreement made with that bank"...... "the cheque has been
presented to the bank within thirty days from information by
him to the bank" etc. Thus, the reference to presentation of
the cheque or return of the cheque dishonoured is in relation
to the bank on which the cheque is drawn. Considering the
usage of indefinite articles "a" and "an" and definite article
"the" it would not be permissible to hold that reference to the
bank extends to any bank where the cheque is presented, or
any bank from which holder in due course eventually gets
information of dishonour. This is amply made clear by the
Apex Court by prefixing the words "bank" and "drawee bank"
in items (1) and (2) in paragraph 14 of the judgment with
definite article "the"."
"15. The Apex Court must have chosen to prefix the word
"bank" by definite article "the" in order to avoid the confusion
and problems that would be created by using indefinite article
"a". A cheque is negotiable instrument and by appropriate
endorsement and delivery it can be negotiated. If instead of
the Courts at the place where the bank on which the cheque
was drawn, the Courts at the place where the cheque was
presented were to have jurisdiction, drawers of the cheque
would be exposed to an unforeseen risk. When a person issues
a cheque to another, he intends to make payment to that
another, for a consideration which he has received at the bank
on which the cheque is drawn. That other, may, in turn,
negotiate the cheque in favour of third person for a liability
which that other may have to discharge towards such third
person. The drawer of the cheque cannot be said to have
foreseen that, by such negotiation, his cheque would land at
place far away from the place at which it was meant to be
paid, making him liable to be hauled up in a Court at a place
where the cheque was presented by the holder in due course.
Therefore, with utmost humility and with great respect to the
observations made by Andhra Pradesh High Court, it is
difficult to deduce the ratio elicited by the Andhra Pradesh
High Court, from the observations of the Supreme Court from
K. Bhaskaran's case. It must be held that the observations in
Bhaskaran's case do not support such a view of law."
"17. While creating an offence punishable under Section
138 of the Negotiable Instruments Act, the parliament has not
changed the whole scheme of the Act. Under Section 6 of the
Act, a cheque is still defined at a bill of exchange, drawn on a
specified banker. The "drawee" is the person directed to pay
under Section 7, and Section 61 requires that a bill of
exchange has to be presented to "the drawee" (& not to any
banker), and if the bill is directed to a drawee at a particular
place, it must be presented at that place. Section 72 makes the
requirement in respect of a cheque clear and lays down as
under :
"72. Presentment of cheque to charge drawer :--
(Subject to the provisions of Section 84) a cheque must, in
order to charge the drawer, be presented at the bank upon
which if is drawn before the relation between the drawer and
his banker has been altered to the prejudice of the drawer."
Since all these provisions are left intact a cheque has
to be presented to the drawee bank at the place mentioned on
the cheque."
"19. The choice of definite article "the" by the Apex Court
in items (1) and (2) in paragraph 14 of Bhaskaran's judgment
merely gives effect to these statutory requirements."
"22. The words in paragraph 16 of the judgment
regarding widened amplitude have to be read in this
background. The Apex Court must not be understood to have
held that question of jurisdiction in a proceeding for offence
punishable under Section 138 of N.I. Act is utterly irrelevant,
or that there is absolutely no restriction on the choice of place
of suing. These observations have to be read in the context of
what is held in paragraph 14 and therefore the amplitude
must be taken to have widened to the extent indicated in
paragraph 14."
"23. Same holds good about observations in paragraph
12 of Bhaskaran's judgment in respect of the word "ordinarily"
appearing in Section 177, Cr.P.C. The Apex Court must be
understood to have held that ordinarily the place of suing
must have a nexus to the lis, but upon making out a case for
deviating from this rule, action could be initiated even at some
other place. It is not the word "Ordinarily" gives an unbridled
freedom to a complainant to choose his forum for hauling up
an accused." (Emphasis supplied)
It may thus be seen that this Court had neither
"distinguished" judgment of the Apex Court in K. Bhaskaran's case, nor had
held that any part of the observations were not applicable. At the cost of
repetition, it may be useful to re-state as to how the judgment in K.
Bhaskaran's case was understood by this Court.
19. In K. Bhaskaran's case, the Apex Court held that
"presentation of the cheque to the bank" was a component of the said
offence. In Ahuja Dongre's case too, this dictum is followed. The Hon'ble
Apex Court had chosen the word "presentation" and had also added article
"the" before the word "bank". In para 17 of the judgment in Ahuja Dongre's
case quoted above, the scheme of the Negotiable Instruments Act is
considered and what amounts to "presentation" is discussed. It is impossible
to even contend that the Hon'ble Apex Court would have in contemplation
some meaning of the word "presentation" different than one warranted by
the provisions of the Negotiable Instruments Act.
20. When a payee of a cheque lodges (and not "presents") a
cheque to his banker for collection, his banker, as his agent, "presents" it to
the drawee bank. Question of dishonour would arise only after it is
"presented" to the drawee bank. If colloquially people believe that they
"present" a cheque drawn on a different bank to their banker, it does neither
alter law nor banking practice. Therefore, the signifance of article "the"
prefixed by the Apex Court to the word "bank" was emphasized.
21. The fourth component enumerated in K. Bhaskaran's case,
namely, "(4) Giving notice in writing to the drawer of the cheque demanding
payment of the cheque amount", had been applied and it was observed in
para 27 of the judgment in Ahuja Dongre's case that since payment was
demanded to be made to the client, whose address in the notice showed that
he was residing outside the jurisdiction of the concerned Court, the Court
had no jurisdiction. The other three components were not attracted to the
facts of that case.
22. As to the following observations in para 16 in K. Bhaskaran's
case, "As the amplitude stands so widened and so expansive it is an idle
exercise to raise jurisdictional question regarding offence under Section 138
of the Act", in Ahuja Dongre's case in para 22 quoted above, it has been held
that the observations must be read in the context of five components of the
offence enumerated in para 14 of K. Bhaskaran's judgment. To contend
that jurisdictional question has become irrelevant and that irrespective of
the fact that none of the five components occurred within the jurisdiction of
a Court, it could entertain a complaint, would amount to reading sentences
out of context.
23.
That in spite of "wide amplitude", jurisdictional question is
still relevant is clear from a later judgment of the Hon'ble Apex Court in
Mosaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. and others, reported at
AIR 2006 SC 1288= (2006) 3 SCC 658. Complainant in that case had filed
complaints in the Court of Chief Judicial Magistrate, Birbhum at Suri in
respect of several cheques that had been dishonoured. The respondent
(accused Company) had undertaken work of construction of major bridges
in West Bengal. The complainant was supplying crushed stone aggregates.
In respect of the amount outstanding towards supply of raw material, the
accused Company had issued post-dated cheques from the registered office
of the Company in Kerala. The cheques were deposited by the complainant
with Mayurakhi Gramin Bank, Suri Branch and were returned by the banker
stating "full cover not received". Upon service of notice of demand, a part
of the sum was paid, leaving a big balance. The Chief Judicial Magistrate
issued process on the complaints and summonses were served at Kolabhat,
Midnapore, West Bengal. Instead of appearing before the Chief Judicial
Magistrate, the accused filed a writ petition before the High Court of Kerala
for quashing the complaints. The accused Company contended that since
the cheques were issued from registered office of the Company in Kerala, a
part of cause of action arose within the State of Kerala.
24. The High Court of Kerala entertained the petition and
granted interim reliefs. After considering the question of jurisdiction of the
High Court to entertain in such a petition, the Apex Court also considered
the question as to which Magisterial Court would have jurisdiction to
entertain the complaints. After considering decision in OM Hemrajani Vs.
State of U.P. and another, reported at (2005) 1 SCC 617, about jurisdiction
in cases of offences committed abroad, the Apex Court held as under :
"31. A bare perusal of the complaint petition would
clearly go to show that according to the complainant the entire
cause of action arose within the jurisdiction of the District
Court of Birbhum and in that view of the matter it is that
court which will have jurisdiction to take cognisance of the
offence. In fact the jurisdiction of the Court of CJM, Birbhum,
Suri, is not in question. It is not contended that the
complainant had suppressed material fact and which if not
disclosed would have demonstrated that the offence was
committed outside the jurisdiction of the said court. Even if
Section 178 of the Code of Criminal Procedure is attracted, the
Court of the Chief Judicial Magistrate, Birbhum will alone
have jurisdiction in the matter."
"32. Sending of cheques from Erakulam or the
respondents having an office at that place did not form an
integral part of "cause of action" for which the complaint
petition was filed by the appellant and cognisance of the
offence under Section 138 of the Negotiable Instruments Act,
1881 was taken by the Chief Judicial Magistrate, Suri. We
may moreover notice that the situs of the accused wherefor
jurisdiction of a court can be invoked and which is an
exception to the aforementioned provisions as contained in
Section 188 of the Code of Criminal Procedure recently came
up for consideration by this Court in Om Hemrajani v. State of
U.P. It was held that the said provisions may be interpreted
widely. The law was laid down in the following terms: (SCC
pp. 621-22, paras 8-9)
"8. Section 177 postulates that ordinarily
offence shall be inquired into and tried by a court
within whose local jurisdiction it was committed.
Section 178, inter alia, deals with situations when it
is uncertain in which of several local areas an offence
is committed or partly committed in one area and
partly in another. The section provides that the
offence can be inquired into or tried by a court
having jurisdiction over any of the local areas
9.
mentioned therein. ..."
...
"33. In this case, the averments made in the writ petition
filed by the respondent herein even if given face value and
taken to be correct in their entirety would not confer any
jurisdiction upon the Kerala High Court. The agreement was
entered into within the jurisdiction of the Calcutta High
Court. The project for which the supply of stone chips and
transportation was being carried out was also within the State
of West Bengal. Payments were obviously required to be made
within the jurisdiction of the said Court where either the
contract had been entered into or where payment was to be
made"
"34. The appellant did not deny or dispute any of the
averments made in the complaint petition. In the writ
petition it merely wanted some time to make the payment. It
is now well known that the object of the provision of Section
138 of the Act is that for proper and smooth functioning of
business transaction in particular, use of cheques as
negotiable instruments would primarily depend upon the
integrity and honesty of the parties. It was noticed that
cheques used to be issued as a device inter alia for defrauding
the creditors and stalling the payments. It was also noticed in
a number of decisions of this Court that dishonour of a cheque
by the bank causes incalculable loss, injury and inconvenience
to the payee and the entire credibility of the business
transactions within and outside the country suffers a serious
setback. It was also found that the remedy available in a civil
court is a long-drawn process and an unscrupulous drawer
normally takes various pleas to defeat the genuine claim of the
payee."
"35. In Prem Chand Vijay Kumar v. Yashpal Singh
[(2005) 4 SCC 417] we may, however, notice that it was held
that for securing conviction under the Negotiable Instruments
Act, 1881 the facts which are required to be proved are: (SCC
p. 423, para 10)
"10. (a) that the cheque was drawn for payment of
an amount of money for discharge of a debt/liability and the
cheque was dishonoured;
(b) that the cheque was presented within the
prescribed period;
(c) that the payee made a demand for payment of
the money by giving a notice in writing to the drawer within
the stipulated period; and
(d) that the drawer failed to make the payment
within 15 days of the receipt of the notice."
"36.
For the purpose of proving the aforementioned
ingredients of the offence under Section 138 of the Act, the
complainant appellant was required to prove the facts
constituting the cause of action therefor none of which arose
within the jurisdiction of the Kerala High Court. It is apt to
mention that in Prem Chand Vijay Kumar this Court held that
cause of action within the meaning of Section 142(b) of the
Act can arise only once."
The Hon'ble Supreme Court then allowed the appeal, setting aside orders by
the Kerala High Court. Had the question of jurisdiction become irrelevant
the Hon'ble Supreme Court would not have said so. It may be recalled that
the Supreme Court not only held that Courts at Birbhum, Suri had
jurisdiction (because in any case some part of cause of action arose there),
but held that the entire cause of action arose within the jurisdiction of
District Court of Birbhum, in spite of the fact that cheques were allegedly
issued from Kerala. It ruled that sending cheques from Ernakulam did not
form an integral part of cause of action. Para 33 of the judgment quoted
above is decisive of what would be crucial in determining jurisdiction in
such cases.
25.
It is true that the Hon'ble Supreme Court had not
considered judgment in K. Bhaskaran's case while making these
observations. But it would be impermissible to even suggest that the Apex
Court had not considered if "drawing of the cheque", enumerated as the first
component in K. Bhaskaran's case, had a bearing on the question of
jurisdiction in cases under Section 138 of the Negotiable Instruments Act or
not. In fact, this aspect was considered and yet the Court held that it was
not an integral part of cause of action.
26. In Premchand Vijay Kumar Vs. Yashpal Singh, reported at
2005(4) Mh.L.J. 100, which had been referred to in Mosaraf Hossain's case,
the question was not of jurisdiction, but that of cause of action to file a
complaint of offence punishable under Section 138 of the Negotiable
Instrument Act. In that case, a notice making demand was made first
on 17-2-1995. Cheque was presented again on 6-7-1995 and after it was
dishonoured fresh notice of demand was sent on 24-7-1995 and, therefore,
complaint was filed. In this context, the Court held as under in paras 9
and 10.
"9.
In a generic and wide sense (as in section 20 of the
Civil Procedure Code, 1908 (in short 'CPC') "cause of action"
means every fact which it is necessary to establish to support a
right or obtain a judgment. Viewed in that context, the
following facts are required to be proved to successfully
prosecute the drawer for an offence under Section 138 of the
Act :
(a) that the cheque was drawn for payment of an
amount of money for discharge of a debt/liability
and the cheque was dishonoured;
(b) that the cheque was presented within the prescribed
period;
(c) that the payee made a demand for payment of the
money by giving a notice in writing to the drawer
within the stipulated period; and
(d) that the drawer failed to make the payment within
15 days of the receipt of the notice."
"10. Proceeding on the basis of the generic meaning of the
term cause of action, certainly each of the above facts would
constitute a part of the cause of action but clause (b) of section
142 gives it a restrictive meaning, in that, it refers to only one
fact which will give rise to the cause of action and that is the
failure to make the payment within 15 days from the date of
the receipt of the notice. A combined reading of sections 138
and 142 makes it clear that cause of action is to be reckoned
accordingly. The combined reading of the above two sections
of the Act leaves no room for doubt that cause of action within
the meaning of section 142(c) arises - and can arise - only
once."
This is the observation which was referred to by the Apex Court in Mosaraf
Hossain's case.
27. Judgment in Mosaraf Hossain Khan's case, in my humble
view, would show that :-
(1) Jurisdictional question is very much relevant in cases
under Section 138 of the Negotiable Instruments Act.
(2) Place where transaction took place and where
payment was intended to be made would be an
important relevant consideration in deciding
jurisdictional issue, and
(3) Place where the cheque in question was issued in itself
is not decisive (and as a corollary, each of the five
components enumerated in K. Bhaskaran, taken
individually though relevant, may not be decisive of
the matter)
28.
The last aspect in K. Bhaskaran's judgment, which has
been discussed in Ahuja Dongre's case is about the observations about the
word "ordinarily" appearing in Section 177 of the Code of Criminal
Procedure. It cannot be contended that use of word "Ordinarily" enables a
party to approach any criminal Court anywhere irrespective of whether it
has any nexus to the lis or to the parties.
29. This takes me to the questions whether it was impermissible
for this Court to take such a course and whether the judgment is rendered
per incuriam. Both the learned counsel for the parties painstakingly took me
through all the relevant judgments on which they could lay hands on the
question of "precedent", "stare decisis", "ratio decidendi" and "obiter dicta".
It is settled legal position that even obiter dicta of the Supreme Court are
binding on all the Courts in India, in the absence of a direct pronouncement
on the subject by the Supreme Court, as held in para 26 of the judgment in
para 26 of the judgment in Oriental Insurance Vs. Meena Variyal, reported at
2007(5) SCC 428. As the foregoing enumeration would show, it is clear that
dicta of the Hon'ble Apex Court in K. Bhaskaran's case have been followed.
If the judgment in Ahuja Dongre's case gives an impression that law laid
down by the Hon'ble Apex Court has not been followed in letter and spirit, it
may only be an regrettable lapse in articulation. The attempt, in fact, was to
discern correctly as to what the Apex Court had ruled in order to accurately
apply it to the facts of the said case.
30. In Emkay Exports, Mumbai and another Vs. Madhusudan
Shrikrishna, reported at 2008(4) Mh.L.J. 843, on which the learned counsel
for the respondent placed reliance, a Full Bench of this Court, speaking
through the Hon'ble the Chief Justice, considered the concepts of precedent,
ratio, stare decisis in the following erudite words :
"6. The concept of precedent has attained important
role in administration of justice in the modern times. The case
before the Court should be decided in accordance with law and
the doctrines. The mind of the Court should be clearly
reflecting on the material in issue with regard to the facts of
the case. The reason and spirit of case make law and not the
letter of a particular precedent. Halsbury's "The Laws of
England", explained the word "ratio decidendi" as "It may be
laid down as a general rule that that part alone of a decision
by a Court of Law is binding upon Courts of coordinate
jurisdiction and inferior Courts which consists of the
enunciation of the reason or principle upon which the question
before the Court has really been determined. This underlying
principle which forms the only authoritative element of a
precedent is often termed the ratio decidendi." It is by the
choice of material facts that the Court create law. The law so
created would be a good precedent for similar subsequent cases
unless it falls within the exceptions hereinafter indicated."
"7. The doctrine of precedent relates to following of
previous decisions within its limitations. It introduces the
concept of finality and adherence to the previous decisions and
while attaining it, it creates consistency in application of law.
The later judgment should be similar to the earlier judgment,
which on material facts are the same. Finding ratio decidendi
is not a mechanical process but an art which one gradually
acquires through practice. What is really involved in finding
the ratio decidendi of a case is the process of abstraction.
Ratio decidendi is a term used in contrast to obiter dictum
which is not necessarily binding in law. According to Sir John
Salmond, "a precedent is a judicial decision, which contains in
itself a principle. The only principle which forms its
authoritative element is often termed the 'ratio decidendi'. The
concrete decision is binding between the parties to it, but it is
the abstract ratio decidendi which alone has the force of law
as regards the world at large". According to Austin, the
general reasons or principles of judicial decisions abstracted
from peculiarities of the case are commonly styled by writers
on jurisprudence as 'ratio decidendi'."
"10 The Hon'ble Apex Court further observed that a
caution need to be taken while applying the principle of
judicial precedents as decision of the Court and its
observations must be read in context in which they appear. In
a judgment discussion is meant to explain and not to define.
In this regard, reference can be made to the case of Haryana
Financial Corporation and anr. vs. M/s. Jagdamba Oil Mills
and anr., J.T. 2002(1) SC 484."
"12. In order to apply a judgment as a precedent, the
relevant laws and earlier judgment should be brought to the
notice of the Court and they should be correctly applied. Mere
observations in a previous judgment may not be binding on a
subsequent Bench if they are not truly applicable to the facts
and controversies in a subsequent case as per settled principle
of "ratio decidendi". ..."
"13. In the case of Commissioner of Customs (Fort) vs.
Toyota Kirloskar Motor (P) Ltd., (2007) 5 SCC 371, the
Supreme Court stated the law relating to precedents and held
that a decision, as is well known, is an authority for what it
decides and not what can logically be deduced therefrom. The
ratio of a decision must be culled out from the facts involved
in a given case and need not be an authority in generality
without reference to the reasons, discussions and facts of the
case."
"15. Furthermore, ratio decidendi of a judgment has to
be found out only on reading the entire judgment. The ratio
of the judgment is what is set out in the judgment itself.
Answer to the question necessarily would have to be read in
the context what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons or principles, the other part of the judgment must be
looked into. By reading a line here and there from the
judgment, one cannot find out the entire ratio decidendi of the
judgment. The reasoning could be deciphered upon reading
the judgment in its entirety and then applying these principles
to the subsequent cases. (Reference : (i) Union of India vs.
Godfrey Philips India Ltd., AIR 1996 SC 806, (ii) Union of
India vs. Dhanwanti Devi, (1996) 6 SCC 44, (iii) State of
Tripura vs. Tripura Bar Association, AIR 1999 SC 1494 and
(iv) Islamic Academy of Education vs. State of Karnatake,
(2003) 6 SCC 697)." (Emphasis Supplied)
31.
In Ahuja Dongre's case, an attempt to read the observations
in K. Bhaskaran's case in the context of applicable law has been made and,
therefore, it is not possible to accept the submission that the judgment is per
incuriam.
32. The learned counsel for the appellant submitted that
interpreting a judgment of the Supreme Court is itself impermissible and for
this purpose cited judgment of the Supreme Court in G.K. Dudani and others
Vs. S.D. Sharma and others, reported at AIR 1986 SC 1455. In that case, a
Division Bench of Gujarat High Court had sought to interpret the words
"promotees regularly appointed" in a judgment of Supreme Court in N.K.
Chauhan v. State of Gujarat, reported at AIR 1977 SC 251. The Supreme
Court observed as under in para 19 :
"19. Even apart from the question of res judicata, the
Division Bench was not right in its approach to Chauhan's
Case. The interpretation placed by the Division Bench upon
the words "promotees regularly appointed" in direction (d) in
Chauhan's case was wholly erroneous. Under the guise of
interpreting the judgment in that case, the Division Bench of
the High Court virtually sat in appeal over the judgment of
this Court and modified it. The High Court ought to have
taken the words in that judgment in the sense in which they
were used and ought to have applied them to the facts before it
instead of trying to put words in the mouth of this Court. ..."
It is not clear as to how the judgment could be an authority for the
proposition that a High Court cannot attribute to the words in an Apex
Court judgment, meaning assigned in the relevant enactment. True, High
Court should not put words in the mouth of the Apex Court. But if an
attempt is made to put a strained meaning on words in a judgment without
considering the context, a High Court would be duty bound to repel such
attempt and read the words in the context of the relevant enactment. This
is what was done in Ahuja Dongre's case.
33. In Ballabhdas Mathuradas Lakhani and others Vs.
Municipal Committee, Malkapur, reported at AIR 1970 SC 1002, the Supreme
Court held that its earlier decision on the question of validity of levy of tax
by Municipality was binding on the High Court and the High Court could
not ignore it because they thought that relevant provisions were not brought
to the notice of the Supreme Court. Such is not the present case.
34. The learned counsel for the appellant next relied on a
judgment of High Court of Rajasthan in M/s. Bhanwar Lal Brij Gopal and etc.
etc. v. State of Rajasthan and others, reported at AIR 1983 Rajasthan 104, to
contend that even if same aspect of a matter was not considered by the Apex
Court, it would not enable a High Court to re-agitate the issue. In that case,
validity of a notification dated 23-5-1981 was challenged before the High
Court, when the very same notification had been held valid by the Apex
Court in a judgment in Surajmal Kailash Chand Vs. Union of India, reported
at AIR 1982 SC 130. The Court made the following observations in para 22 :
"22. This raises a serious question as to what would be
the effect of the decision of the Hon'ble Supreme Court, more
so when the same Notification being declared valid by the
Hon'ble the Supreme Court and the High Court has declared
invalid on the same day. Undoubtedly Art. 141 makes it
explicit and beyond doubt that the law laid down by the
Hon'ble the Supreme Court is to be obeyed by all concerned.
Even otherwise so far as the High Court is concerned the
Supreme Court is of a superior jurisdiction and law laid down
by the Hon'ble Supreme Court is binding, even if Article 41
and Article 144 would not be there."
It then quoted from a judgment of Supreme Court in Ambica Prasad Mishra
Vs. State of U.P., reported at AIR 1980 SC 1762, in para 23 as under :
"23. ... The answer to this problem need not be given by me
but in Ambica Prasad Mishra v. State of U.P. (AIR 1980 SC
1762), the Supreme Court have taken pains to answer what
would be the effect of raising additional points or such points
later. It was observed as under :--
"Constitution of India, art. 141--
reconsideration of binding precedent - when permissible.
Every new discovery or argumentative novelty cannot undo or
compel reconsideration of a binding precedent. It is
fundamental that the nation's constitution is not kept in
constant uncertainty by judicial review every season because it
paralyses, by perennial suspense, all legislative and
administrative action, on vital issues deterred by the brooding
threat of forensic blow-up. This, if permitted, may well be a
kind of judicial destabilisation of State action too dangerous
to be indulged in save where national crisis of great moment
to the life, liberty and safety of this country and its millions
are at stake, or the basic direction of the nation itself is in
peril of a shake-up.
It is wise to remember that fatal flaws silenced by earlier
rulings cannot survive after death because a decision does not
lose its authority "merely because it was badly argued,
inadequately considered and fallaciously "reasoned" ''
35. The judgment in Ahuja Dongre's case does not even hint that
K. Bhaskaran's case was badly argued, inadequately considered or
fallaciously reasoned. Far from this, K. Bhaskaran's case, being the first
authoritative pronouncement, which not only comprehensively considered
all aspects but also ruled in expression aptly chosen for defining the five
components, in Ahuja Dongre's case, it is followed strictly. Ahuja Dongre's
case merely repels an attempt to put colloquial or loose meaning on the
expression used in K. Bhaskaran's case.
36. Same holds good about reliance by the learned counsel for
the appellant on the judgment of the Supreme Court in Suganthi Suresh
Kumar v. Jagdeeshan, reported at (2002) 2 SCC 420, where the Supreme
Court had disapproved High Courts overruling decisions of the Apex Court
on the ground that it had laid down the legal position without considering
any other point. This objection cannot be raised in respect of judgment in
Ahuja Dongre's case since the Supreme Court in K. Bhaskaran's case chose to
use the expression "presented" and "the bank" and the Supreme Court did
not rule that depositing the cheque with drawer's bank was also a relevant
component. Judicial discipline to abide by the declaration of law by the
Supreme Court is the foremost consideration for a High Court, as held in
Suga Ram alias Chhugaram Vs. State of Rajasthan and others, reported at
(2006) 8 SCC 641, and judgment in Ahuja Dongre's case strictly follows K.
Bhaskaran's case.
37. It is not clear as to why the learned counsel for the appellant
chose to cite judgment in Smt. Kausalya Devi Bogra and others Vs. Land
Acquisition Officer, Aurangabad and another, reported at (1984) 2 SCC 324.
In that case, while allowing earlier appeals by judgment dated 23-3-1979,
the Supreme Court had directed the High Court to re-hear the appeals in the
light of directions given. Yet the High Court observed that they had not
heard the parties on merits at all and re-confirmed the view taken by earlier
Division Bench, which had been expressly set aside by the Supreme Court.
In this context, the Supreme Court held as under :
"5. Having read the judgment of the High Court and
considering the manner in which the first appeals have been
disposed of, we have no doubts in our mind that the High
Court exceeded its jurisdiction in dealing with the first appeals.
This Court in exercise of appellate powers vested in it under
Article 136 (sic Article 133) of the Constitution had set aside
the Bench decision of the High Court delivered in 1971 and
that judgment for all intents and purposes had become non-
existent. The present Division Bench of the High Court was
not entitled, by any process known to law, to resurrect that
judgment into life."
The judgment would have applied only if this Court in Ahuja Dongre's case
had come to express any doubts over the observations of the Supreme Court
in K. Bhaskaran's case. On the contrary, this Court merely warded off an
attempt to put a gloss over the words in the judgment, which was necessary
to avoid stretching the ratio therein to an illogical extreme.
38. Since in Ahuja Dongre's case this Court had not taken a view
contrary to that of any co-ordinate Bench or Bench of a higher strength,
there was no occasion to make a reference. Hence, ratio in Sundarjas
Kanyalal Bhatija and others v. Collector, Thane, Maharashtra and others,
reported at (1989) 3 SCC 396, on which the learned counsel for the
appellant relied, would not be attracted.
39. Repeated reliance on the judgments to show that the
observations in the judgments of the Supreme Court cannot be disregarded
cannot lead to an inference that factually there has been any such disregard.
The position that an earlier decision of the Supreme Court cannot be
overruled by even a co-equal bench of that Court reported in (1995) 4 SCC
96 (Indian Oil Corporation Ltd. Vs. Municipal Corporation and another),
referred to by the learned counsel for the appellant is so clear that an
authority was really not necessary.
40. To recapitulate :-
(1) The judgment in Ahuja Dongre's case does not contain even a
whisper that K. Bhaskaran's case was decided without considering any
provision of law or any legal aspect.
On the contrary, the judgment in Ahuja Dongre's case enforces in
letter and spirit the observations of the Supreme Court in K. Bhaskaran's
case, by reading the expression used contextually, and refusing to read the
explanatory expression out of context, as is required to be done (Para 10 of
Full Bench judgment in Emkay Exports, Mumbai and another Vs.
Madhusudan Shrikrishna - 2008(4) Mh.L.J. 843).
(3) What is now being attempted by the appellants is to put an
unwarranted colloquial meaning on the expression used, stretching the ratio
of K. Bhaskaran's case to illogical extent, and then alleging deviation in
Ahuja Dongre's case from such strained interpretation put on the judgment
which is not proper.
41. The learned counsel for the appellant next submitted that in
Ahuja Dongre's case, this Court had suggested that principally the Court
within whose jurisdiction cheque was issued would have jurisdiction, and
that such a conclusion runs counter to the judgment of the Hon'ble Supreme
Court in Mosaraf Hossain Khan's case. It has to be humbly pointed out that
in Ahuja Dongre's case, the question was about place of presentation, since
the concerned Court was sought to be clothed with jurisdiction on the
foundation that the cheque was allegedly presented within such jurisdiction.
It was pointed out that the cheque was merely lodged in payee's bank and it
was eventually presented to the bank on which it was drawn, which was
outside the jurisdiction of the said Court.
42. While the place where the cheque is issued and the place
where the cheque is presented (i.e. place where drawee bank is situated)
may in a given case be the same, as held in K. Bhaskaran's case, these places
could be different. Drawer of a cheque may not necessarily draw a cheque
at the place where the drawee bank is situated and issue it. He may as well
draw it at his place/payee's place, etc. In a metro, such places could be in a
different jurisdictions, though in the same city. If jurisdiction is excluded by
applying observations in Mosaraf Hossain's case, and holding that one
component, namely place of issuance of cheque is not relevant, it does not
automatically exclude jurisdiction if the second component of presentation
and dishonour have occurred at the same place where cheque was issued.
Therefore, Ahuja Dongre's case is not in conflict with Mosaraf Hossain's case,
and so it cannot be said that Ahuja Dongre's case is rendered per incuriam.
There is yet another component of the place where payment was intended
to be made, which place could be different from the place where cheque
was issued or delivered. To find out where the payment was to be made,
one has to simply took at the cheque to find out where the drawee bank is
situated. Had the cheque been honoured, which could have been the place
where payment could be said to have been made to the payee? -- obviously
the drawee bank, since there the account of drawer would be debited and
amount transmitted to the payee's agent - his bank - for being credited to
his account. Such inference about intended place of payment could,
however, be rebutted by tendering evidence to show that payment was to
be made elsewhere.
43. The learned counsel for the appellant submitted that a
Special Leave Petition is already filed before the Supreme Court challenging
judgment in Ahuja Dongre's case. Also another Hon'ble Single Judge has
referred the matter to a larger Bench. He submitted that the appeals could
be kept pending till the Special Leave Petition or reference to larger Bench
are decided, and that the appellant would not mind waiting for the decision
of the lis. He drew my attention to an order of the Supreme Court in Umesh
Korga Bhandari Vs. Mahanagar Telephone Nigam Ltd. and another, reported
at (2005) 13 SCC 691, to suggest such a course. In that case, the Supreme
Court observed that since decision in Bangalore Water Supply Board's case
had been referred in 2005 to a larger Bench in State of U.P. Vs. Jai Bir Singh,
it would be appropriate to await the decision of larger Bench.
44. This submission could have been made when the matters
first came up before Hon'ble Shri Justice A.H. Joshi for admission
on 4-9-2008, when notice of final disposal was issued. After a matter is
heard at length, no useful purpose would be served by keeping it pending,
since there is no way to know when the Special Leave Petition or the
reference to larger Bench would be decided, as Courts have other pressing
work as well.
45. In Criminal Writ Petition No.7 of 2008 before the High
Court of Bombay at Goa, by an order dated 7-2-2008, an Hon'ble Single
Judge referred the matter to a larger Bench. Copy of that order was made
available by the Registry, in order to enable me to ascertain as to what part
of judgment in Ahuja Dongre's case was found to be incorrect. In para 2, the
Hon'ble Single Judge observes as under :
"2. I have perused both the decisions delivered by the
learned Single Judges of this Court. In Ahuja Dongre's case,
the learned Single Judge has held that a cheque as a
negotiable instrument is statutorily required to be discharged
at the place mentioned therein and a reference is made in that
regard to Section 72 of the Negotiable Instruments Act.
Referring to the decision of the Apex Court in K. Bhasaran v.
Sankaran Vaidhyan Balan, reported in AIR 1999 SC 3762,
it was held that in K. Bhasaran's case as a matter of fact it
was held as proved that the cheques in question had been
issued at the shop of P.W.3 with the territorial limits of the
trial Court's jurisdiction. Having so observed, it was further
held by the learned Single Judge that the five ingredients
enumerated by the Court in para 14 of the Judgment would
undisputedly attract the provisions of clause (d) of Section 178
of the Code of Criminal Procedure, since it could not be said
that the offence punishable under Section 138 of the
Negotiable Instruments Act consists of the five acts,
enumerated in paragraph 14 of the judgment."
(Emphasis supplied)
The learned Single Judge then paraphrases interpretation put by me on the
expressions "presented" and "the drawee bank". In para 3, the Hon'ble
Judge quotes from K. Bhaskaran's case, and in paras 5 and 6 observes as to
what the Apex Court has held in K. Bhaskaran's case. The sentence in para 6
wherein the Hon'ble Judge refers to judgment in Ahuja Dongre's case reads
as under :
"... The decision of the Apex Court therefore is very clear to the
effect that the jurisdiction for initiating action under Section
138 of the Negotiable Instruments Act is not restricted to the
place where the drawee bank is situated and, hence, in my
considered opinion, and with utmost respect to the learned
Judge in Ahuja Dongre's case, the view therein is directly
contrary to the law laid down by the Apex Court in K.
Bhaskaran's case."
The portion underlined in para 2 of the order would show that the Hon'ble
Single Judge correctly concluded that it was held in Ahuja Dongre's case that
the five ingredients enumerated by the Court in para 14 of the judgment
would undisputedly attract the provisions of clause (d) of Section 178 of the
Code of Criminal Procedure. But reading by the Hon'ble Single Judge of the
remaining part of same sentence in Ahuja Dongre's case is, however different
from that in the report of the judgment at 2006(6) All Bom R 201, which the
Hon'ble Single Judge had referred to (as may be seen from para 1 of his
order). The sentence in para 14 of the judgment in Ahuja Dongre's case
reads as under :
"The five ingredients enumerated by the Court in paragraph
14 of the judgment would undisputedly attract the oprovisions
of Clause (d) of Section 178 of the Code of Criminal
Procedure, since it can be said that the offence punishable
under Section 138 of the Negotiable Instruments Act consists
of the five acts, enumerated in paragraph 14 of the judgment."
It seems that ingenious advocacy led to reading "not", when it did not exist
in the sentence referred to. And it made a world of difference. The
sentence quoted above should be enough to dispel the notion that it was
sought to be suggested in Ahuja Dongre's case that jurisdiction is restricted
to the place where drawee bank is situated. It should also have been noted
that component (4), giving of notice, was discussed in paras 25 to 27 of the
judgment in Ahuja Dongre's case, and as a fact it was held that notice was
issued demanding payment for the payee residing in adjacent district,
outside the jurisdiction of the Court concerned.
46.
The learned counsel for the appellant next submitted that
even the High Court of Jammu and Kashmir in Sunil Somnath Ghumare Vs.
FIL Industries and another, reported at 2007(4) Crimes 566 (J&K), relied on
K. Bhaskaran's case, had held that Court in Srinagar (J&K) had jurisdiction
to try a case of dishonour of a cheque drawn on a bank at Kopergaon
(Maharashtra) as the cheque was presented by complainant to his bank at
Srinagar. It was not urged before the High Court of Jammu and Kashmir
that lodging a cheque for collection did not amount to its presentation.
Secondly, the signifance or article "the" prefixed to word "bank" in the
second component of K. Bhaskaran's case enumeration was also not argued,
and, therefore, there is no pronouncement on this aspect. Had the High
Court of Jammu and Kashmir considered these aspects and taken a
different view, that could have been examined in order to find out if the
logic in Ahuja Dongre's case was wrong. Hence, this judgment is unhelpful
to the appellant.
47. The learned counsel for the appellant next submitted that
the Supreme Court had held in Harbans Lal Vs. State of Haryana and
another, reported at 1999 ALL MR (Cri) 390, that when gold was
transported from Pakistan to a place near Bahadurgarh in Haryana, each of
the Courts, through whose jurisdiction the contraband passed, would have
jurisdiction to try offence punishable under the Customs Act. Therefore,
according to him, when notice demanding payment has been issued from
Nagpur, jurisdiction of Nagpur Court could not be excluded. As regards
significance of service of notice, apart from K. Bhaskaran's case, the learned
counsel also relied on judgment of the Supreme Court in M/s. Sarav
Investment & Financial Consultants Pvt. Ltd. & Anr. Vs. Llyods Register of
Shipping Indian Office Staff Provident Fund & Anr., reported at
2008 ALL MR (Cri) 300 (S.C.). There was no question of jurisdiction
involved. The question was about service of notice by hand delivery, which
the High Court had held to be sufficient. The Supreme Court, allowing the
appeal, and setting aside the judgment of the High Court, after quoting
from K. Bhaskaran, observed in paras 16 and 19 as under :
"16. Section 138 of the Act contains a penal provision.
It is a special statute. It creates a vicarious liability. Even the
burden of proof to some extent is on the accused. Having
regard to the purport of the said provision as also in view of
the fact that it provides for a severe penalty, the provision
warrants a strict construction. Proviso appended to Section
138 contains a non-obstante clause. It provides that nothing
contained in the main provision shall apply unless the
requirements prescribed therein are complied with. Service of
notice is one of the statutory requirements for initiation of a
criminal proceeding. Such notice is required to be given
within 30 days of the receipt of the information by the
complainant from the bank regarding the cheque as unpaid.
Clause (c) provides that the holder of the cheque must be
given an opportunity to pay the amount in question within 15
days of the receipt of the said notice. Complaint Petition,
thus, can be filed for commission of an offence by a drawee of
a cheque only 15 days after service of the notice. What are the
requirements of service of a notice is no longer res-integra in
view of the recent decision of this Court in C.C. Alavi Haji Vs.
Palapetty Muhammed & Anr. [JT 2007(7) SC 498 : 2007
ALL MR (Cri) 2044 (S.C.)]."
"19. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan
and Anr. [(1999)7 SCC 510 : 1999(4) ALL MR 452 (S.C.)
: 1999 ALL MR (Cri) 1845 (S.C.)], importance of service of
notice has been pointed out stating :-
"19. In Black's Law Dictionary 'giving of notice' is
distinguished from 'receiving of the notice' (vide p.621) :
'A person notifies or gives notice to another by taking such
steps as may be reasonably required to inform the other in
the ordinary course, whether or not such other actually
comes to know of it'. A person 'receives' a notice when it is
duly delivered to him or at the place of his business.
21. If a strict interpretation is given that the drawer
should have actually received the notice for the period of
15 days to start running no matter that the payee sent the
notice on the correct address, a trickster cheque drawer
would get the premium to avoid receiving the notice by
different strategies and he could escape from the legal
consequences of Section 138 of the Act. It must be borne
in mind that the court should not adopt an interpretation
which helps a dishonest evader and clips an honest payee
as that would defeat the very legislative measure.
22. In Maxwell's Interpretation of Statutes, the
learned author has emphasized that 'provisions relating to
giving of notice often receive liberal interpretation' (vide
p.99 of the 12th Ed.). The context envisaged in Section
138 of the act invites a liberal interpretation for the
person who has the statutory obligation to give notice
because he is presumed to be the loser in the transaction
and it is for his interest the very provision is made by the
legislature. The words in clause (b) of the proviso to
Section 138 of the Act show that the payee has the
statutory obligation to 'make a demand' by giving notice.
The thrust in the clause is one the need to 'make a
demand'. It is only the mode for making such demand
which the legislature has prescribed. A payee can send the
notice for doing his part for giving the notice. Once it is
dispatched his part is over and the next depends on what
the sendee does."
This question too had never been in doubt, and the law laid down in
K. Bhaskaran's case in this behalf had in fact been applied even in Ahuja
Dongre's case.
48. The learned counsel for the respondent, however, submitted
that the question of giving notice had also been considered by this Court in
M/s. Yashomala Engineering Pvt. Ltd. and others Vs. Tata SSL Ltd. and
another, reported at 1998 Cri.L.J. 4350. The following observations in paras
13 and 14 may have a bearing on the issue.
"13. The learned Advocate for the petitioner has strongly
urged that if notice is held to be an integral part of offence it
would give an unnecessary handle to the payee of the cheque
to institute complaint in any part of the country where it
happens to be an offence. Firstly, this is not possible because if
one turns to that Section again and reads definition of the
word "payee" as contained in Section 7 of the said Act,
payment is to be made to the payee as defined. He is none else
but the person named in the instrument to whom or to whose
order, the money is by the instrument directed to be paid."
"14. In the event of payee being a company, when the
money is to be paid to the person named in the instrument,
payment to the company would be sufficient compliance of the
proviso. This would necessarily mean that the institution of
complaint will be restricted to the place where the registered
office of the company is situated. If this be the consequence of
the provision of Section 138 read with its proviso, it could well
be and that could not be a ground for interpreting the Section
and to restrict the jurisdiction of the Court only where the
cheque was issued and where it was returned unpaid."
The learned counsel submitted that mere despatch of notice from a
non-existant office at Nagpur would not do and since complainant's
(payee's) registered office is at Delhi, demand for payment must be
construed to have been made from Delhi. What the law prescribes is not
mere "posting" of a notice or quoting an address on the notice. What is
prescribed is "giving" of notice by the payee and, therefore, whatever may
be the address quoted or wherever notice is posted, the place of giving
notice would be the place where the payee ordinarily resides or works for
gain.
49. Incidentally, by judgment dated 5-7-2006, i.e. a little before
Ahuja Dongre's case was decided, a learned Single Judge of this Court had
considered the significance of place from where notice of demand was
issued. This judgment in Laxmi Travels, Nagpur Vs. G.E. Countrywide
Consumer and another, reported at 2006(5) AIR Bom R 316 (in September
2006 issue), was not available to me while deciding Ahuja Dongre's case. In
that case, the facts were as under :
"2. The basic transaction between the parties took place
at Nagpur. The parties are residing at Nagpur. The cheques
are also presented at Canara Bank at Nagpur. As it was
bounced, the endorsement also made by the Canara Bank at
Nagpur. However, the complainant had issued notice of
demand from Aurangabad and as there was no compliance of
the same, the present complaint has been filed at
Aurangabad."
The learned Single Judge then considered the contentions based upon
pronouncement in K. Bhaskaran, M/s. Prem Chand Vijaykumar Vs. Yashpal
Singh, and Mosaraf Hossain Khan, and concluded in para 7 as under :
"7. The contention as raised by the learned counsel in
favour of complainant that the above judgment of the Apex
Court in K. Bhaskaran (AIR 1999 SC 3762) (supra) 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, nowhere dealt
with this aspect. What has been decided by the Apex Court in
K. Bhaskaran and M/s. Prem Chand (supra) refers to the
basic ingredients which are necessary for an offence under
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 sufficient to file complaint under S.138 of 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. The
object of issuing notice as observed by the Apex Court in
Rajneesh Aggarwal v. Amit J. Bhalla, reported in (2001) 1
SCC 631 : (AIR 2001 SC 518) is as under :
"Mere dishonour of a cheque would not raise to a cause of
action unless the payee makes a demand in writing to the
drawer of the cheque for the payment and the drawer fails to
make the payment of the said amount of money to the payee.
The object of issuing notice indicating the factum of dishonour
of the cheques is to give an opportunity to the drawer to make
the payment within 15 days, so that it will not be necessary
for the payee to proceed against in any criminal action, even
though the bank dishonoured the cheques."
The learned Single Judge then allowed the petition and dismissed the
complaint.
50. The learned counsel for the respondent also relied on a
judgment of High Court of Kerala in Harihara Puthra Sharma Vs. State of
Kerala and another, reported at 2007(1) DCR 440, where a learned Single
Judge of the Kerala High Court considered the directions of the Apex Court
in K. Bhaskaran's case, as regards issuance of notice. The cheque in that
case had been issued, presented and dishonoured within the limits of
jurisdiction of Judicial Magistrate First Class, Adoor. Demand for payment
was made by the complainant's counsel from his office at Pathnamthitta
and so the complainant was filed at Pathanamthitta. In this factual context,
the learned Single observed as under :
" 12. Undoubtedly, introduction of Chapter XVII in the
Act has brought in a laudable and welcome change as far as
efficacy of banking transactions is concerned. But at the same
time, the havoc that can be created by unscrupulous money
lenders and other elements who may try to misuse the penal
provisions to harass innocent and gullible persons who happen
to issue cheques in the court of honest and bonafide
transactions has also to be borne in mind. If unbridled
discretion is given to the complainants to choose the forum of
litigation, it may create judicial havoc, to say the least."
"13. As mentioned earlier, instances galore where
unscrupulous money lenders have misused the blank cheques
extracted by them from their borrowers by inserting inflated
amounts, claiming conscionable and unbelievable rates of
interest. If the drawee of a cheque who is bent upon harassing
his borrower is permitted to select the forum of his choice, a
situation
may arise where a complainant living
Trivandrum, at the southern end of the State will choose to file
in
a complaint before the Court at Kasaragod situated at the
northern extremity, after issuing a demand notice through a
counsel at Kasaragod, though the entire transaction between
the complainant and the accused had taken place at
Trivandrum. It may be true that the complainant may also
have to appear before the Court at Kasaragod in that
eventuality. But in a case where the complainant is aware
that the accused may not be in a position to undertake such
frequent journeys from the southern most part of the State to
the northern end, it may not be improbable that such an
ingenious method would not be adopted by a complainant.The
above instance may be hypothetical, but it may not be entirely
improbable or impossible at all."
"16. It is true that in Bhaskaran's case (supra), their
Lordships of the Supreme Court had held that "the offence
under Section 138 of the Act can be completed only with the
concatenation" of the following acts "
(1) Drawing of the cheque.
(2) 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 their receipt of the notice.
The court observed that it is not necessary that all the
five acts should have been perpetrated at the same locality.
While noticing the possibility that each of the five acts
mentioned above could be done at five different localities, the
court held that "any one of the courts exercising jurisdiction in
one of the give local areas can become the place of trial for the
offence under Section 138 of the Act." The Court went on to
hold further 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." ''
"17. Learned counsel for the complainant has laid heavy
emphasis on the above observation made by the Apex Court, in
support of his case. But in the above decision, the factual
situation was totally different from the one available in the
case on hand. In that case, the trial Court had held that it
had no territorial jurisdiction to try the case since the cheque
was dishonoured by the Branch Office of the Bank situated in
a different district. But all other acts like drawing of the
cheque, its presentation for encashment, its return after
dishonour, and issuance of demand notice etc. had taken place
within the territorial limits of the trial court at Adoor. The
cheque was presented before the branch of the Syndicate Bank
at Kayamkulam and it was returned due to insufficiency of
funds in the accountof the accused. Apart from the above sole
act of presentation of the cheque before a branch outside the
jurisdiction of the trial court, all other acts as noticed by the
Supreme Court had, occurred within the territorial limits of
the trial court itself. Their Lordships had, in the above facts
and circumstances of the case, held that the trial Court was
not justified in refusing to exercise jurisdiction and deal with
the case in accordance with law."
"19. I have referred to the above observations of the
Apex Court to emphasis the fact that any one of the 5
conditions enumerated by their Lordships in Bhaskaran's
case may not by itself invariably clinch the issue while
deciding the question of jurisdiction. That question has to
be decided keeping in view the entire sequence of events
starting from issuance of the cheque in the ultimate
culmination of refusal to pay."
"21. Having regard to the entire facts and
circumstances of the case on hand, I am satisfied that the
complainant is not entitled to institute the complaint
before the court at Pathanamthitta. since the major part
of the transaction like issuance of the cheque, its
presentation and dishonour, having taken place at Adoor,
it may not be just or proper to allow the complainant to
prosecute the petitioner/accused before the Chief Judicial
Magistrate's Court at Pathanamthitta solely for the reason
that the complainant had engaged a counsel at
Pathanamthitta to issue the statutory demand notice. In
my view, the method adopted by the complainant is clear
intended to harass the petitioner. This cannot be
permitted.
51. Thus just as in Ahuja Dongre's case, notice by a lawyer from
a different jurisdiction was held not enough to clothe the Court at that place
with jurisdiction to try the offence.
52. What emerges from all these judgments, and more
particularly, K. Bhaskaran and Mosaraf Hossain's cases, could be summed up
as under (in spite of risks inherent in such summing up ) :
1. Jurisdiction to file a case of offence punishable under Section 138
of the Negotiable Instrument Act is not restricted only to the Court
within whose jurisdiction the drawee bank is situated and where
cheque is actually dishonoured upon presentation, though a
complaint could be filed even at such place as payment was
intended to be made there.
2. Five components of the offence enumerated in the judgment in K.
Bhaskaran would be relevant for considering the question of
jurisdiction.
3. Mere issuance of cheque may not be enough to confer
jurisdiction to the Court within whose jurisdiction the cheque was
issued.
4. More pertinent, or decisive component would be the place, where
the transaction leading to debt or creation of legally enforceable
liability, for discharge whereof a cheque is issued, or, where
payment was to be made.
5. Drawing a cheque on a particular bank would indicate intention to
make payment at the place where such bank is situated and
acceptance of such cheque by payee would indicate his consent to
receive payment at such place.
6. Since "the payee" is required to issue a notice demanding
payment, such place of giving notice would be where, if payee is a
company (or other registered establishment) it has a registered
office, and in other cases, normally, where the payee ordinarily
resides or works for gain, and not any place from where the payee
may choose to despatch a notice.
53. The facts of these cases, which may now be examined with
reference to the above conclusions, are as under :
1. Both the parties have their shops/offices in Delhi.
2. The transactions which gave rise to the liability took place at
Delhi.
3. The cheques were issued/delivered at Delhi.
4. They were drawn on a bank at Delhi and accepted by the
complainant.
5. They were presented to the bank at Delhi through payee's bank at
Nagpur and were returned unpaid by the bank at Delhi.
6. The complainant does not have any registered office of Nagpur.
7.
Notices of demand were issued showing address at the premises of
a business associate at Nagpur, when the complainant has office at
Delhi.
54. It is thus clear that the complainant had taken the detour of
lodging cheques for clearing at a Nagpur bank and issued notices of demand
showing address of a business associate in Nagpur only in order to have his
lis tried at Nagpur, and admittedly so, since, according to the learned
counsel for the appellant, the cases could not have been speedily disposed of
at Delhi. The learned counsel for the appellant submitted that choosing a
forum, which is convenient, is not impermissible and so the complainant
was justified in filing complaint in the Court at Nagpur. He submitted that
there is nothing wrong about pre-trial harassment of the accused, and that it
is nowhere held that such pre-trial harassment would be a criterion to
decide jurisdictional issues.
55. The learned counsel for the appellant submitted that
criminal law cannot be over concerned about the rights of accused alone,
and victim's convenience and rights too are equally important. There can be
no doubt that a victim cannot be subjected to harassment for the sake of
securing justice. However, it does not follow that law sanctifies harassment
of the accused, even before he is adjudged guilty. His being required to
participate at trial is not in fact harassment, but an opportunity to defend
himself. His participation at trial, held ordinarily at a place where he ought
to be tried, cannot amount to harassment. But if he is dragged to a forum
with which lis has no concern, it would amount to either pre-conviction
punishment or a tactic of arm-twisting, which cannot be encouraged.
56. The learned counsel for the appellant referred to the
following observations of the Supreme Court in Mosaraf Hossain's case in
para 35 of the judgment reported at AIR 2006 SC 1288.
"35. The appellant did not deny or dispute any of the
averments made in the complaint petition. In the writ petition
it merely wanted some time to make the payment. It is now
well known that the object of the provision of Section 138 of
the Act is that for proper and smooth functioning of business
transaction in particular, use of cheques as negotiable
instruments would primarily depend upon the integrity and
honesty of the parties. It was noticed that cheques used to be
issued as a device inter alia for defrauding the creditors and
stalling the payments. It was also noticed in a number of
decisions of this Court that dishonour of a cheque by the bank
causes incalculable loss, injury and inconvenience to the payee
and the entire credibility of the business transactions within
and outside the country suffers a serious setback. It was also
found that the remedy available in a civil court is a long
drawn process and an unscrupulous drawer normally takes
various pleas to defeat the genuine claim of the payee."
He submitted that bearing this object in view, an interpretation which
supports the cause of payee has to be preferred. According to the learned
counsel, a trader may have transactions with several others across the
country and may receive payment for goods supplied at his business place in
form of cheques which may be drawn on banks at several places. If he was
to be required to file cases at such places, he would be rather shuttling from
one court at one place to another than being in his shop. The learned
counsel submitted that this was not contemplated.
57. It is not clear as to how this argument factually favours the
complainant. The complainant had to simply file cases in Delhi where he
was supposed to be paid for goods sold by him. He has chosen to file cases
in Nagpur for no rhyme or reason, except that Courts here would be able to
deliver speedy justice. The concerns of traders aired by the learned counsel
are in fact addressed by the Apex Court in para 34 of the judgment in
Mosaraf Hossain's case by observing to the effect that jurisdiction would vest
in the Court within whose territorial jurisdiction payment was to be made.
58. While in K. Bhaskaran's case, five components are
enumerated, the wordings of Section 138 of the Negotiable Instruments Act
would underline that the cheque is but a means of fulfilling the more basic
obligation - namely, "for the discharge, in whole or in part, of any debt or
other liability". Therefore, the place where the debt or other liability was
required to be discharged is of crucial importance in deciding jurisdictional
issue, as is held in Mosaraf Hossain's case. This should answer the
appellant's apprehensions about difficulties of businessmen in realising
outstation cheques for goods sold.
59. It has to be borne in mind that once a superior Court sets a
precedent by allowing place of trial to be changed on such considerations,
the place could as well be deliberately chosen so as to cause maximum
inconvenience and harassment. Today, a Delhi trial is being sought to be
shifted to Nagpur because trials here are speedy. Tomorrow, money
lenders/financers may set up offices in remote areas where Courts have little
work only in order to drag opponents to such Courts to coerce a settlement.
While laying down a legal principle all the possible implications would have
to be borne in mind. Substantive law is so drafted that no crook escapes
punishment. But procedural law has to be so crafted that no innocent
person is victimised, or made to surrender to fait accompli, upon being worn
out by visits to Courts. In view of all this, no fault can be found with the
learned Magistrate's conclusion that the Courts at Nagpur lacked jurisdiction
to try the case. However, the learned Magistrate could not have recorded
acquittal of the accused. He should have directed return of complaints for
being filed in appropriate Court.
60. The learned counsel for the appellant submitted that while
ordering such return of complaints, the Courts at Delhi to whom the
complaints would be presented may be directed to proceed on the basis of
evidence already tendered and a de novo trial should not be ordered as held
in State of M.P. Vs. Bhooraji and others, reported at (2001) 7 SCC 679
(already discussed). There is no question of this Court ordering de novo
trials, since these are summary criminal cases, evidence (excluding
affidavits) is in form of notes taken by the Magistrate, and it may not be
possible for the Magistrate at Delhi to proceed on those notes. However,
this aspect is best left open for the parties and the concerned Court to be
worked out in a manner which will ensure avoiding loss of scarce judicial
time.
61. In view of the foregoing discussion, all these appeals are
partly allowed. The impugned judgments and acquittal of the respondent
are set aside and the complaints along with evidence recorded are directed
to be returned under Section 201 of the Code of Criminal Procedure Code
for being presented to proper Court.
JUDGE
Lanjewar
