Mahindra & Mahindra Financial ... vs Nitin
2011 Latest Caselaw 191 Bom

                              1                                          Cr. Appln. No.398/2010


                            IN THE HIGH COURT OF JUDICATURE OF  BOMBAY
                                         BENCH  AT NAGPUR




                                                                                             
                         Criminal Application No. 398/2010




                                                                     
                       Mahindra & Mahindra Financial Services Ltd.
                       having its Regional Office at 1st Floor,




                                                                    
                       Civil Lines, Nagpur.
                       through its power of attorney holder
                       Shri Arif s/o Abdul Waheed Khan 
                       Aged about 33 years, Occu. Service,




                                                       
                       R/o Nagpur. Tah. & Distt. Nagpur.                   .. Applicant

                               Versus 
                                         
                         Nitin s/o Vishnupant Thakre,        
                                        
                         Aged Major, Occu. Business,
                         R/o At Post Shivaji Nagar, 
                         Yavatmal.
                         Tah. and Distt. Yavatmal.  ..                              Respondent .
               


                                                            ...
            



                    Mr. M.R. Joharapurkar, Advocate for the applicant.
                    Mr. N. D. Futane, Advocate for the respondent. 





                                                    ..

                   Coram : A. P. Bhangale, J. 

Dated : 9/12/2011.

ORAL JUDGMENT :

1] By this application under Section 482 of the Code of

Criminal Procedure, the applicant (original complainant) has prayed

for, to quash and set aside the order passed below Exhibit 66 on

21.12.2009 in Summary Criminal Case No.3950/2008 by the learned

23rd Judicial Magistrate First Class and Special Court, Nagpur, under

Section 138 of the Negotiable Instruments Act, whereby the learned

Trial Magistrate was pleased to direct return of the complaint for to be

presented before the Court having jurisdiction. The complainant

aggrieved by the said order, preferred this Criminal Application with

prayer for to invoke inherent powers, in view of Section 482 of the

Code of Criminal Procedure.

2] The facts, which appear, briefly are as under:-

The applicant is a non-banking finance company

incorporated and registered as a company under the Companies Act,

1956 doing business of leasing and hire purchase having its corporate

office at Sadhna House behind Mahindra Towers with Regional Office

at 1st Floor, Civil Lines, Nagpur.

3] The learned Advocate for the applicant submitted that the

complainant was to recover loan amount from the accused given to

him for purchase of vehicle. The respondent-accused failed to make

repayments as agreed and ultimately the accused had issued cheque

bearing no.0183876 in favour of the complainant for an amount of

Rs. 1,60,305/-. The cheque was drawn on Yavatmal Gramin Bank on

20th September 2007 in discharge of his legal liability. The said

cheque was presented for encashment at IDBI Bank Sitabuldi, Nagpur

but it was returned dishonoured with return memo dated 18.1.2008

with remark "account closed". Accordingly, demand notice was issued

on 25.1.2008 by R.P.A.D. as well as under certificate of posting. The

notice sent by R.P.A.D. was returned to the sendor with remark "not

claimed" and notice under certificate of posting was served. Thus, on

the ground that the accused had failed to comply with the legal

notice and to discharge his liability in respect of the dishonour of

cheque, the complaint was lodged with learned Trial Magistrate and

Special Court under Section 138 of the Negotiable Instruments Act.

The learned Magistrate had taken cognizance of the complaint by

examining Arifkhan Abdul Waheed Khan, a witness from the bank.

The accused had also filed affidavit in lieu of evidence and examined

one witness Nitin Vishnupant Thakre. Under these circumstances

even written notes of arguments were tendered. Thus, it is submitted

that once the learned Trial Judge took cognizance of the complaint in

accordance with law, the impugned order to return complaint ought

not have been passed. It is further submitted that the learned Trial

Judge failed to take into consideration the provisions of Section 178 of

the Code of Criminal Procedure, which makes it clear that in case of

uncertainty as to in which of several local areas an offence was

committed or where an offence was committed partly in one local

area and partly in another or where an offence was a continuing one,

and continued to be committed in more local areas than one, or where

it consists of several acts which may have been done in different local

areas then offence may be inquired into or tried by a Court having

jurisdiction over any of such local areas. Furthermore; under Section

179 of the Code of Criminal Procedure, it is submitted that there is an

option provided for the Court taking cognizance of an offence to the

effect that when an act is an offence by reason of anything which has

been done and by reason of consequence which has ensued, the

offence may be inquired into or tried by a Court within whose legal

jurisdiction such thing has been done or such consequence has

ensued. The learned Advocate for the applicant submitted that in

view of this clear provisions as to jurisdiction of the Criminal Court in

inquiry and trial, the learned Trial Judge ought not to have returned

the complaint, more so when cognizance of the complaint was

already taken by allowing the complainant to lead evidence in support

of the complaint and by allowing the accused to lead evidence.

Therefore, it is submitted that the impugned order is contrary to law

and ought to be quashed and set aside in exercise of inherent

jurisdiction under Section 482 of the Code of Criminal Procedure.

4] The learned Advocate for the respondent (accused) in

support of the impugned order has placed reliance in the report of

Harman Electronics Pvt. Ltd. Vs. National Panasonic India Pvt. Ltd.

reported in [2009(3)Mh.L.J. 792, as also upon the ruling in Dipti

Kumar Mohanty Vs. Videocon Industries Ltd. reported in 2009 (5)

Mh.L.J.273. A view was taken for to return the complaint for

presentation to the appropriate Court having jurisdiction over the

matter. According to the learned Advocate for the respondent, the

cheque in the present case was drawn upon Yavatmal Gramin Bank in

favour of Mahindra & Mahindra Financial Services Ltd. The cheque

was presented on 20th September 2007 at IDBI Bank, Situabuldi,

Nagpur and it was returned with return memo dated 18.1.2008 from

the banker of the accused with intimation that the cheque remained

dishonoured for the reason "account closed". Notice of demand was

issued from Nagpur to the accused on 25.1.2008 which was sent by

R.P.A.D. as well as under certificate of posting to the accused at

Yavatmal. According to the learned counsel for the respondent,

therefore, the learned Trial Judge rightly passed the order making

reference to the rulings in Dipti Kumar Mohanti Vs. Videocon

Industries Ltd. (Bombay High Court)and Harman Electronics Pvt. Ltd.

and another Vs. National Panasonic Pvt. Ltd. (supra). Thus, learned

Advocate for the respondent tried to support the impugned order on

the ground that the judgment in the report of Smt. Shamshad Begum

Vs. B. Mohammed reported in 2009 Cr.L.J.1304 (Supreme Court) was

also considered which gave option to the complainant to prefer

complaint any of the five places where five acts were perpetrated as

mentioned below :-

(I) Drawing of the cheque; the place where cheque is drawn;

(II) Place where presentation of the cheque is made to the

collecting Bank;

(III) Place where the cheque was returned unpaid by the

drawee bank;

(IV) Place where notice was given in writing to the drawer of

the cheque demanding payment of the cheque amount;

(V) Place where the drawer failed to make payment

within 15 days of the receipt of the notice.

5] It appears that ruling in the report of Shamshad Begum

Vs. B. Mohammed (supra) has made reference to the ruling reported

in 1999 (7) SCC 510 (K. Bhaskaran v. Sankaran Vaidhyan Balan and

another) in which it is observed by the Apex Court that it is not

necessary that all the above five acts should have been perpetrated at

the same locality. It is possible that each of those five acts could be

done at five different local localities. But a concatenation of all the

above five acts is a sine qua non for the completion of the offence

under Section 138 of the Negotiable Instruments Act. The Apex Court

has made reference to Section 178 (d) of the Code of Criminal

Procedure, where the offence consists of several acts done in different

areas then it may be inquired and tried by a Court having jurisdiction

over any of such local areas. Thus, any of the Courts exercising

jurisdiction in any of the local areas can become a place of trial for the

offence under Section 138 of the Negotiable Instruments Act. In other

words, it is option of the complainant to choose any one of those

courts having jurisdiction over any of the local areas within the

territorial limits of which any one of those five acts were done. Thus,

in view of this wider scope of enabling provision as to venue of the

trial, it is submitted that the learned Magistrate/Special Judge ought

not to have allowed the accused to raise jurisdictional question or

should have dismissed the application by the accused. The learned

Advocate for the applicant has made a reference to the Division

Bench ruling of the Bombay High Court in Preetha Vs. Voltas Ltd.

Chochin and another reported in 2010 (3) Mh.L.J. 324. The learned

Advocate for the applicant submitted that all the rulings which were

referred to by the learned Advocate for the respondent-accused and

the learned Special Judge while passing the impugned order were

referred to and were considered by the Division Bench of this Court

and it was specially observed in paragraph 31.

6] Paragraph 31 reads thus:-

"Therefore, the cheque can be presented at the collecting bank of the payee. The collecting bank has to then send it to the drawee bank. That must be

done within six months. If the cheque is dishonured and money is not paid within 15 days of the notice,

complaint can be filed at the place where the collecting bank is situated. The idea is that the

cheque should reach the drawee bank within six months. It can be directly presented to it or it can be

presented through the collecting bank".

Thus, in view of the above observations of the Division

Bench of this Court and in the facts and circumstances of the present

case if the complainant calls upon the accused to make payment at the

place mentioned in the demand notice and the accused fails to make

payment at that place, part of cause of action would undoubtedly

arise at that place. Thus, Nagpur Court also had jurisdiction to

entertain the complaint.

7] It appears that the aforesaid view is binding and was

also taken in the ruling reported in Crompton Greaves Ltd. Vs.

Shivam Traders reported at 2010 (3) Mh.L.J. 246. by the learned

Single Judge Bench of this Court.

8] Thus, in view of the legal position discussed in above

rulings, particularly in Preetha Vs. Voltas Limited and Crompton

Greaves Vs. Shivam Traders, it must be concluded that the impugned

order passed by the learned Magistrate is contrary to law and

therefore unsustainable. Hence, the order is quashed and set aside.

The parties to appear before the learned Judicial Magistrate First Class

and Special Court, Nagpur, under Section 138 of the Negotiable

Instruments Act on 9th January 2012 at 11.00 a.m. Learned

Magistrate/Special Judge under Section 138 of Negotiable

Instruments Act shall proceed further according to law.

9] The application is allowed accordingly with no order as to

costs.

JUDGE

Ambulkar.