Orissa High Court
U.K.D.V. Prasad Rao vs Lala Yoganandalal And Another on 19 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.352 of 2013
U.K.D.V. Prasad Rao .... Petitioner
Mr. S.N. Satpathy, Advocate
-Versus-
Lala Yoganandalal and another .... Opposite Parties
None
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT: 19.07.2022
1.
Instant petition under Section 482 Cr.P.C. is at the behest
of the petitioner challenging the maintainability of the criminal
proceeding and issuance of notice in C.C. No.4 of 2013 pending in
the file of learned Chief Metropolitan Magistrate, Vishakhapatnam
on the grounds inter alia that the cause of action vis-à-vis the
alleged transactions between the parties arose within the State of
Orissa and therefore, the impugned action is to be interfered with
in exercise of the inherent jurisdiction of this Court.
2. The petitioner contends that notice under Section 138 of
the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the
N.I. Act') was received from the court of Chief Metropolitan
Magistrate, Vishakhapatnam with the appearance date fixed on
22nd February, 2013 and to submit evidence and answer the charge
which is based on vague and false allegations made at the instance
of OP No.1. According to the petitioner, his wife rather was served
with the legal notice dated 16th August, 2012 demanding payment
in relation to alleged sale transaction and thereafter, notice
(Annexure-2) was received for her appearance in the complaint
case. The details of the transactions have been narrated by the
petitioner denying the liability whatsoever claimed by OP No.1. In
fact, the petitioner, while responding to the demand, claimed that
there was no any occasion to handover a cheque and its dishonour
since the consideration money was deposited vide Annexure-3
series. The petitioner further questioned the jurisdiction of the court
concerned to entertain the complaint on the ground that the cause
of action vis-a-vis the alleged transaction said to have taken place
at Bhubaneswar.
3. Heard Mr. S.N. Satpathy, learned counsel for the
petitioner. However, none appears for OP No.1.
4. The petitioner questions the impugned notice (Annexure-2)
on the ground that the allegations in complaint do not constitute
any offence which also stand uncorroborated and besides that,
action under Section 138 of the N.I. Act is not maintainable since
the statutory requirements have not been followed besides the fact
that the Chief Metropolitan Court at Vishakhapatnam is having no
jurisdiction to entertain it since the cause of action arose within the
State of Orissa.
5. Mr. Satpathy submits that such a complaint is filed by OP
No.1 at the place outside the State of Orissa only to harass the
petitioner and extract more money when there is nothing due and
payable by him vis-à-vis the alleged sale. It is further contended
that when the entire transaction has taken place in Orissa, the
complaint with regard to payment of consideration money could
not have been filed at Vishakhapatnam. While contending so, a
decision of this Court in Narottam Bastia Vrs. State of Orissa and
another reported in 2017 (II) OLR 767 is cited by Mr. Satpathy. It
has also been pleaded that this Court is having the jurisdiction to
entertain the challenge in view of its earlier judgment in Sri Kailash
Chandra Mishra Vrs. Sri Ajitsinh Ulhasrao Babar and others
reported in 2014 (I) OLR 211. In course of hearing, the Court had
raised a preliminary question regarding the jurisdiction of this Court
when the complaint is filed at Vishakhapatnam. In other words, the
question is, whether, a proceeding pending in the court in the State
of Andhra Pradesh can be a subject of challenge before this Court?
6. Admittedly, from the pleading, it appears that the wife and
cousin of the petitioner had sale transactions with OP No.1, who
allegedly claimed certain dues not to have been paid which stands
denied. In that connection, the complaint seems to have been filed
by OP No.1 in the court at Vishakhapatnam which is presently
sought to be quashed. From Annexure-1 series which is the legal
notice received by the wife of the petitioner, it is made to
understand that a cheque was issued in favour of OP No.1 and the
same was deposited in latter's banker at Vishakhapatnam for
collection which, however, stood dishonoured with an
endorsement dated 18th June, 2012 that the account did not have
sufficient funds. The complaint is in relation to the above dishonour
of cheque which was claimed to have been again presented on 17th
July, 2012 but was returned unpaid by the banker's memo dated
31st July, 2012 with the same reason as having insufficient funds.
7. The preliminary question is that whether this Court
exercising power under Section 482 Cr.P.C. can set aside or quash a
criminal proceeding pending before the court of the Chief
Metropolitan Magistrate, Vishakhapatnam in the peculiar facts and
circumstances of the case as narrated herein before. As regards the
decision in Narottam Bastia (supra), it has been held by this Court
that the court within the jurisdiction of which the cheque was
presented and dishonoured shall have to try the case in view of the
amended provision to Section 142(2) of the N.I. Act. In the present
case, as it appears from Annexure-1 series, the alleged cheque stated
to have been presented at Vishakhapatnam, if at all the averments
therein are to be believed and accepted at its face value. If such is
the case, then OP No.1 can be said to have rightly filed the
complaint at Vishakhapatnam where his banker is situated. The
transactions might have taken place in Orissa and for that, civil
litigations could have been brought before any court situated at
such places where a part of cause of action arose but for the
purpose of a criminal action under Section 138 of the N.I. Act, in
view of Section 142 (2), it has to be at a place where the cheque
was presented and dishonoured. In so far as the decision in Sri
Kailash Chandra Mishra (supra) is concerned, this Court, while
exercising writ jurisdiction concluded that in view of the
amendment to Article 226 of the Constitution of India, correctness
of a proceeding lying before a court situated beyond its jurisdiction
can be called in question. In the said case, the cheque was issued at
Balasore which was dishonoured at Bhubaneswar but the complaint
was filed outside the State and under such circumstances, the Court
while exercising writ jurisdiction quashed the complaint filed before
the court at Daman in the State of Uttaranchal. In the instant case,
the transactions stated to have taken place within the State but the
alleged cheque as claimed by OP No.1 stood dishonoured at
Vishakhapatnam, whereafter, the complaint was filed in the court
of Chief Metropolitan situated there. Since the entire cause of
action took place inside the State, but then the complaint was filed
in the State of Uttaranchal, this Court, in the aforesaid case,
quashed the complaint exercising jurisdiction under Article 226 of
the Constitution of India which is distinguishable to the facts and
circumstances of the present case wherein OP No.1 alleged to have
presented the cheque in question with his banker at
Vishakhapatnam where the same failed to be honoured. Even by
considering the decision in Narottam Bastia ibid, it may be said that
the complaint was maintainable at Vishakhapatnam. In view of the
above, the Court is of the considered view that the petitioner
would have to respond to the notice in question which has been
received under Annexure-2 or if so advised, may also question the
maintainability of the complaint on merits by approaching the High
Court of Andhra Pradesh since above is the prima facie view of this
Court which is based on the available materials.
8. Accordingly, it is ordered.
9. In the result, petition under Section 482 Cr.P.C. stands
dismissed.
(R.K. Pattanaik)
Judge
KC Bisoi/Secretary
