Madhya Pradesh High Court
Ashish Seti vs Eepak Singh on 12 March, 2021
Author: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
CRR.310.2013.
(Ashish Sethi Vs. Deepak Singh. )
GWALIOR; dated 12.03.2021.
Shri Amit Lahoti, learned counsel, for the applicants.
Shri S.K.Shrivastava, counsel for the respondent.
With the consent of parties, the matter is finally heard.
Present criminal revision has been filed challenging the order
dated 18.1.2013 passed by learned JMFC, Vidisha in Cr.Case No.1408
of 2006 whereby, the application filed for recalling complainant in the
witness box has been rejected.
It is argued that a private complaint was filed by the respondent
against the petitioner under Section 138 of the Negotiable Instrument
Act (hereinafter would be referred as "NI Act") with regard to four
cheques. The learned trial has taken cognizance in the matter and trial
has commenced thereafter. Statement of complainant was recorded on
17.7.2006. Another complaint was filed against the petitioner by the
respondent/complainant with respect to separate cheque in which,
cognizance has also been taken and the matter is pending consideration.
The complainant was got examined in the other case wherein, he has
categorically sated that all the transactions have been taken place at
Indore outside the justification of district Vidisha, therefore, the
complaint is not maintainable before the court at district Vidisha. After
closure of the defence evidence, an application was filed on 18.1.2013
for recalling the complainant in the witness box owing to the
development that the complainant himself in the other case has accepted
THE HIGH COURT OF MADHYA PRADESH
CRR.310.2013.
(Ashish Sethi Vs. Deepak Singh. )
the fact that all the transactions have taken place at Indore, therefore,
cognizance cannot be taken at Vidisha for filing complaint under NI
Act. It is submitted that recalling of complainant is required in the
matter for confronting the complainant with respect to the cause of
action. Aforesaid permission be granted to the petitioner as it is a basic
question which goes to the root of the case as the question of territorial
jurisdiction at Vidisha is involved in the matter. In such circumstances,
the court ought to have permitted the petitioner for recalling the
complainant. He has relied upon the judgment passed in the case of
Harman electronics private Limited and Another Vs. National Panasonic
India Pvt. Ltd reported in 2009 (I) SCC 720 with respect to the
territorial jurisdiction of the court for trying the offence and has argued
that the Hon'ble Supreme Court has considered the aforesaid aspect and
has given verdict with respect to the jurisdiction of the court to entertain
the application under Section 138 of NI Act at the place where the cause
of action arises. He has also relied upon the judgment passed by Hon'ble
Supreme Court in the case of Kalyani Baskar (Mrs) Vs.
M.S.Sampoornam (Mrs) reported in (2007) 2 SCC 258 which deals
with the right of petitioner/accused for fair trial. The basic question of
jurisdiction of the court is involved in the matter and the petitioner is
having right to just, proper and fair trial. In such circumstances, the
application for recalling complainant should have been allowed by
learned trial court. Petitioner has filed a copy of agreement to
THE HIGH COURT OF MADHYA PRADESH
CRR.310.2013.
(Ashish Sethi Vs. Deepak Singh. )
demonstrate the fact that the transactions have taken place at Indore.
Per contra, counsel for the respondent has opposed the prayer of
the petitioner contending that there is no illegality committed by the
trial court in rejecting the application. It is argued that the court at
Vidisha is having jurisdiction to entertain complaint under Section 138
of the NI Act for the simple reason that the transactions have taken
place at Vidisha. The cheques were given to the complainant at Vidisha
and dishonour of the same was also taken place at Vidisha much less
that the complainant/respondent is resident of Bada Bazar, Vidisha. In
such circumstances, there is no illegality committed by the trial court.
Even otherwise, evidence of another case cannot be considered and
relied upon in the present case dealing with dishonour of the cheques.
The law is well settled with respect to the territorial jurisdiction of the
trial court in respect of private complaint. He has relied upon the
judgment passed by this court in the case of K.Bhaskaran Vs.
Sankaran Vaidhyan Balan and another reported in 2000 (1) MPLJ
1 wherein, the Hon'ble Supreme Court has held that there are five
places where complaint can be filed. Case of the petitioner falls under
the aforesaid guidelines issued by the Hon'ble Supreme Court also. He
has further relied upon the judgment rendered by this court in the case
of Murli Dhar Vs. Ishwar Dayal Girdhani reported in 2011 (2)
MPHT 221 and in case of Shamshad Begum (Smt) Vs.
B.Mohammed reported in (2008) 13 SCC 77 wherein, the Hon'ble
THE HIGH COURT OF MADHYA PRADESH
CRR.310.2013.
(Ashish Sethi Vs. Deepak Singh. )
High Court and Supreme Court had categorically held that it is not
necessary that concatenation of five acts constituting an offence under
Section 138 NI Act should have been perpetrated at the same locality
and even a part of cause of action arises at a place is sufficient to take
cognizance. In such circumstances, when the cheques were issued and
presented at Vidisha court, the court at Vidisha was having jurisdiction
to entertain the private complaint.
Heard learned counsel for the parties and perused the record.
From perusal of record, it is not disputed that the private
complaint was filed with respect to dishonor of four cheuqes and
another for one case at Vidisha. The complainant is resident of Vidisha.
From perusal of private complaint, it is reflected that the cheques were
presented at Vidisha which were dishonored at Vidisha. Legal notices
were issued from Vidisha and above all, the complainant is resident of
Bada Bazar, Vidisha.
The Hon'ble Supreme Court in the case of K.Bhaskaran (Supra)
has held as under :
"The offence under Section 138 of the Act can be completed only
with the concatenation 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".
In case of Shamshad Begum (Smt) (Supra), the Hon'ble Apex
THE HIGH COURT OF MADHYA PRADESH
CRR.310.2013.
(Ashish Sethi Vs. Deepak Singh. )
Court has held as under :
"It is not necessary that 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 localities. But
concatenation of all the above five is sine qua non for the
completion of the offence under Section 138 of the Act".
Thus, from perusal of the facts and circumstances of the case and
also the judgments rendered by Hon'ble Apex Court in the cases stated
above, the private complaint has rightly been entertained at Vidisha as
the cause of action had arises at Vidisha. As far as recalling of witness is
concerned, the application was rightly turned down by the trial court as
the same is not maintainable as the cheques were dishonored at Vidisha
and the complainant himself had presented them at Vidisha. The
compliant was also filed at Vidisha as the complainant is resident of
Vidisha.
Considering the over all facts and circumstances of the case,
present criminal revision is sans merits and is hereby dismissed. Interim
order passed by this court stands vacated.
A copy of this order be communicated to the learned trial court
for necessary action.
(Vishal Mishra)
Rks. Judge
RAM KUMAR
SHARMA
2021.03.18
16:51:16 +05'30'
