Shwet Sarita Farm Products vs Sipora Bazar
2013 Latest Caselaw 321 Bom

                                           1                            Cri.W.P. 407.13.odt


      IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                 BENCH AT AURANGABAD




                                                                       
          CRIMINAL WRIT PETITION NO. 407 OF 2013




                                               
     1.   Shwet Sarita Farm Products
          (A Registered Partnership Firm)
          Office at : Anant Ahsram,
          Vijaywadi, Chalisgaon,
          Tq. Chalisgaon, Dist. Jalgaon




                                              
          Through its Partner

     2.   Anant Kamlakar Samant
          Age : 30 years, Occ : Chief Executive
          Officer & Partner of aforestated Firm




                                
     3.   Kamlakar Anant Samant
          Age : 50 years, Occ : Chairman of
                  
          aforestated Firm.

     4.   Suruchi W/o Kamlakar Samant
          Age : 45 years, Occ : Partner of
                 
          aforestated Firm

          Petitioner Nos. 2 to 4 are
          R/o Anant Ashram,
          Vijaywadi, Chalisgaon,
      


          Tq. Chalisgaon, Dist. Jalgaon.
                                                               ..PETITIONERS
   



          -VERSUS-

     Shri Rameshwar Sahakari Sakhar
     Karkhana Ltd.,
     Office : Raosaheb Nagar





     (Sipora Bazar), Tq. Bhokardan,
     Dist Jalna
     Through its Managing Director
     (Chief Executive Officer)
     Shri Dharmaraj Bhaurao Shewale
     Age : 65 years, Occ : Service,





     R/o Raosaheb Nagar, Cipora Bazar,
     Bhokardan, Tq. Bhokardan,
     Dist. Jalna.
                                                            ..RESPONDENTS
                     ...
     Advocate for Petitioners : Mr. M.S. Deshmukh
     Advocate for Respondent : Mr. Kulkarni U.R.
                     ...




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                                                 2                              Cri.W.P. 407.13.odt




                                   CORAM : ABHAY M. THIPSAY, J.
                                   DATE : 11th December, 2013.




                                                                              
                                                      
     JUDGMENT :

Rule. By consent, Rule made returnable forthwith. By consent,

heard finally.

2. The petitioners are the original accused in S.T.C. No.

787/2010 pending before the Judicial Magistrate, First Class,

Bhokardan. The said case is in respect of an offence punishable

under section 138 of the Negotiable Instruments Act. The

respondent herein is the complainant in the said case. In the course

of trial, the petitioners made an application (Exhibit 48) contending

that the learned Judicial Magistrate, First Class, Bhokardan had no

territorial jurisdiction to entertain the complaint and try the alleged

offence. This application was rejected by the learned Magistrate, by

his order dated 27.02.2012.

Aggrieved by the said order, the petitioners moved the

Court of Sessions by filing an application for revision, but the

3 Cri.W.P. 407.13.odt

learned Additional Sessions Judge, who heard the revision

application, was of the view that the order passed by the Magistrate

was proper and legal and holding thus, the learned Additional

Sessions Judge dismissed the revision application.

Aggrieved by the order of dismissal of the revision

application, the petitioners have approached this Court by filing the

present Petition, praying that by issuing a writ of certiorari or any

other appropriate writ, the order passed by the Magistrate as well as

the order passed by the Revisional Court be set aside and the

learned Magistrate be directed to return the complaint to the

respondent for presenting it before a proper Court - i.e. - the Court

having territorial jurisdiction in the matter.

3. I have heard Mr. M.S. Deshmukh, the learned counsel

for the petitioners. I have heard Mr. U.R. Kulkarni, the learned

counsel for the respondent. I have also taken into consideration the

contentions raised by the respondent Karkhana in the affidavit in

reply.

4. The allegation in the compliant is that an agreement

4 Cri.W.P. 407.13.odt

was entered into between the petitioner no.1 and the respondent,

under which the petitioner no.1 was to supply a certain quantity of

raw sugar to the respondent Karkhana at a particular rate. That,

however, the petitioner no.1 did not supply the agreed quantity of

raw sugar as per the schedule in the agreement. Ultimately, the

petitioners issued three cheques in favour of the respondent

Karkhana towards the repayment of the amount, which they were

liable to pay under the contractual liability. The said three cheques

were dishonoured and thereafter the complaint came to be filed.

5. Though in support of their respective contentions, a

number of authoritative pronouncements of the Apex Court and of

this Court were referred to by the learned counsel for the parties,

the issue involved is not complex at all. The authoritative

pronouncements, to which a reference was made by the learned

counsel dealt with more complex issues concerning territorial

jurisdiction.

6. In this case, admittedly, the cheques had been drawn on

the Bank of Baroda, at Chalisgaon branch. Admittedly, the cheques

were deposited for collection of the amount in the same branch.

5 Cri.W.P. 407.13.odt

Thus here the drawee bank and the bank with which the cheques

were deposited for collection is one and the same. Much of the case

law referred to by the learned counsel for the parties revolves

around the meaning of the term 'presentation of the cheque to the

bank' and whether, the bank means 'only the bank on which the

cheque is drawn' or, whether it includes 'the bank in which the

cheque is deposited for collection'. Such dispute does not arise in

the present case.

7. It would, therefore, be necessary to examine the basis

on which a claim that the Judicial Magistrate, First Class, Bhokardan

has jurisdiction to entertain the complaint and try the offence has

been made in the complaint. A perusal of the complaint shows that

the existence of territorial jurisdiction has been claimed on the basis

that the respondent Karkhana is situated at Bhokardan - the area in

which Judicial Magistrate, First Class, Bhokardan exercises his

jurisdiction. It is also claimed that the transaction, namely of

passing a resolution and accepting the tender offer of the petitioner

no.1, took place at Bhokardan.

8. The question is whether because the agreement to

6 Cri.W.P. 407.13.odt

supply sugar took place at Bhokardan, or whether because the

respondent Karkhana is situated at Bhokardan, the Court having

territorial jurisdiction over Bhokardan would be competent to

entertain the complaint in respect of the dishonour of the cheques,

which had been drawn on the Chalisgaon branch of the Bank of

Baroda and which were presented also in the same branch for

collection of the amount.

9.

While rejecting the application for returning the

complaint to the respondent, the Magistrate observed that the

agreement had taken place at Karkhana site, and that, the cheques

had been issued at Karkhana site. The Magistrate observed that the

notice demanding the amount of cheque had also been issued from

Bhokardan, though such facts were not pleaded or asserted, as a

factor giving jurisdiction to the learned Magistrate. The Revisional

Court also emphasized that the registered office of the respondent

was at Bhokardan, and that, the agreement in question took place

between the parties at the registered office of the respondent

Karkhana; and that notice demanding the payment was also issued

from Bhokardan. It is on that basis that it was held that the Judicial

Magistrate, First Class, Bhokardan was having territorial jurisdiction

7 Cri.W.P. 407.13.odt

to deal with the matter.

10. In the affidavit in reply filed on behalf of the respondent

Karkhana the emphasis is only on the contract between the parties

having taken place at the factory site at Bhokardan. It is

emphatically put in para no.2 of the affidavit in reply as follows :-

"I categorically say and submit that, the

contract has taken place at factory site at Bhokardan and the Civil court as well as

the Criminal Courts have territorial and pecuniary jurisdiction on accrual of cause of action within their jurisdiction."

Except this, there is no other basis supporting the claim that

the Judicial Magistrate, First Class, Bhokardan has territorial

jurisdiction to deal with the matter.

11. The respondent has not put forth the contention that

since the notice of demand was sent from Bhokardan, the Court at

Bhokardan will have jurisdiction, though such point had appealed to

the Magistrate and to the Sessions Judge. Since, this point is given

8 Cri.W.P. 407.13.odt

up, it is not necessary to go deeper into that, except observing that

merely because the demand notice has been issued from a particular

place, the Court having territorial jurisdiction over that place will

not have jurisdiction to deal with the offence punishable under

Section 138 of the Negotiable Instruments Act. This is clear from

the observations made by the Supreme Court of India, in the case of

M/s. Harman Electronics (P) Ltd. And Anr. V. M/s. National

Panasonic India Ltd. reported in AIR 2009 S.C. 1168.

12. Therefore, the only question that needs to be considered

is whether because the agreement between the parties had allegedly

taken place at Bhokardan, the Judicial Magistrate, First Class,

Bhokardan would have jurisdiction to try the offence in question.

13. It is not possible to accept the contentions of the

respondent. A Division Bench of this Court had an occasion to deal

with a similar issue in Crompton Greaves Limited V/s Kantibhai &

anr. reported in 2012(1) Bom.C.R. (Cri.) 796, wherein it was

observed that the notion of cause of action as understood in civil law

could not be brought into play for deciding the territorial jurisdiction

of a Court to deal with an offence punishable under section 138 of

9 Cri.W.P. 407.13.odt

the Negotiable Instruments Act. It was categorically held that the

jurisdiction of the Civil Court to entertain a suit for recovery of

money would be determined by section 20 of the Code of Civil

Procedure, while the jurisdiction to prosecute an offender, who is

alleged to have committed an offence punishable under section 138

of the Negotiable Instruments Act would be determined by the

provisions of section 178 of the Code of Criminal Procedure. It was

categorically held that the place of accrual of cause of action for the

purpose of determination of jurisdiction of the Civil Court to try a

suit, as contemplated under section 20 of the Civil Procedure Code,

would not be relevant for the purpose of considering whether the

Judicial Magistrate would have jurisdiction to inquire into and try

the offence punishable under section 138 of the Negotiable

Instruments Act.

14. Even if one proceeds on the basis that the agreement

between the parties was entered into at Bhokardan, still, the

entering of the agreement forms no part of the offence punishable

under section 138 of the Negotiable Instruments Act. Therefore, it

cannot be contend that, that place confers territorial jurisdiction on

the Court that exercises its power over that area.

10 Cri.W.P. 407.13.odt

15. Since the very basis on which the existence of

jurisdiction in the Judicial Magistrate, First Class, Bhokardan is

claimed - 'viz :- that the transaction between the parties had taken

place at Bhokardan' is not sound and since there is no other ground

on which the claim that the learned Judicial Magistrate, First Class,

Bhokardan has jurisdiction to try the case has been made, it follows

that the Court of Judicial Magistrate, First Class, Bhokardan has no

territorial jurisdiction to entertain the complaint and try the offence.

16. It is rather surprising that though the cheques had been

drawn on a bank situated at Chalisgaon and though they were

presented for collecting the amount also in a bank at Chalisgaon, the

respondent Karkhana should choose to file a complaint at

Bhokardan. The prayer of the petitioners is not for quashing the

prosecution or the complaint, but only for directing the Magistrate

to return the complaint to the respondent i.e. the original

complainant for filing it in the Court of Judicial Magistrate, First

Class at Chalisgaon, who undoubtedly has territorial jurisdiction

over the alleged offences. It would be proper to allow the Petition.

                                              11                            Cri.W.P. 407.13.odt


     17.          The Petition is allowed. 




                                                                          

The learned Magistrate is directed to return the

complaint to the Respondent - the original complainant - for filing it

in the Court of Judicial Magistrate, First Class, at Chalisgaon.

The parties shall remain present before the Judicial

Magistrate First Class, at Chalisgaon, on 22.01.2014.

18. Rule is made absolute in the aforesaid terms.

Sd/-

(ABHAY M. THIPSAY, J.) ***

sga/-