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TMI Blog2008 (12) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present. The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh. Appeal allowed. - CRIMINAL APPEAL NO. 2021 OF 2008 - - - Dated:- 12-12-2008 - S.B. SINHA CYRIAC JOSEPH, JJ. JUDGMENT 1. Leave granted. 2. Territorial jurisdiction of a court to try an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act ) is in question in this appeal. The said question arose in the following circumstances. Appellants and respondent entered into a business transaction. Appellant is a resident of Chandigarh. He carries on business in Chandigarh. The cheque in question admittedly was issued at Chandigarh. Complainant also has a branch office at Chandigarh although his Head Office is said to be at Delhi. It is stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of notice. 3. Cognizance of the offence was taken against the appellant by the learned judge. Questioning the jurisdiction of the court of Additional Sessions Judge, New Delhi, an application was filed which was disposed of by the learned Additional Sessions Judge, New Delhi in terms of an order dated 3.2.2003 stating: 2. The main grievance of the accused is that the accused persons, as well as the complainant are carrying their business at Chandigarh. The cheque in question was given by the accused to the complainant in Chandigarh, and it was present to their banker at Chandigarh. Only notice was given by the complainant to the accused persons, from Delhi. That the same was served on the accused admittedly, at Chandigarh and that both the parties are carrying out their business also at Chandigarh. Therefore, it is contended that it would amount to absurdity if the complaint of the complainant is entertained, in Delhi, in view of the case law reported in AIR 1999 Supreme Court 3782, K. Bhaskaran Vs. Sankaran Vaidyyan Balan and Another. 6. I have considered the arguments advanced at the bar, and I am of the considered opinion that this court has jurisdiction to enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 8. The proviso appended thereto imposes certain conditions before a complaint petition can be entertained. 9. Reliance has been placed by both the learned Additional Sessions Judge as also the High Court on a decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. [(1999) 7 SCC 510]. This Court opined that the offence under Section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court should not adopt in interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 11. For the said purpose, a presumption was drawn as regards refusal to accept a notice. We may, before proceeding to advert to the contentions raised by the parties hereto, refer to another decision of this Court in M/s Dalmia Cement (Bharat) Ltd. vs. M/s Galaxy Traders Agencies Ltd. ors. [AIR 2001 SC 676], wherein this Court categorically held: 6. Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The dispatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is rebuttable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee's stand and take the risk for proving that he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intaining a Current Account No. 2431009 with our Bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi- 110001 only and not at any other place in India including Chandigarh. Further confirmed that CITI bank has provided the facility for collection of Cheques/Demand Drafts from branches of NPI located at various places/cities in India. However, all amounts of cheques/Demand Drafts so collected on behalf of National Panasonic India Private Limited are forwarded and debited/credited to the aforesaid Current Account No. 2431009 with our Bank at Jeeval Bharti Building, 3, Parliament Street, New Delhi 110001. 13. The complaint petition does not show that the cheque was presented at Delhi. It is absolutely silent in that regard. The facility for collection of the cheque admittedly was available at Chandigrh and the said facility was availed of. The certificate dated 24.6.2003, which was not produced before the learned court taking cognizance, even if taken into consideration does not show that the cheque was presented at the Delhi Branch of the Citi Bank. We, therefore, have no other option but to presume that the cheque was presented at Chandigarh. Indisputably, the dish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a Government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word 'communication' ought not to be given unless the provision in question expressly so provides. Actual knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in The State of Punjab v. Amar Singh (AIR 1966 SC 1313) contemplates. But such consequences would not occur in the case of an officer who has proceeded on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal areas. 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 courts of Birbhum and in that view of the matter it is that court which will have jurisdiction to take congnizance of the offence. In fact the jurisdiction of the court of CJM, Suri, Birbhum 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 Ernakulam 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 cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by the Chief Judicial Magistrate, Suri. 22. In Y.A. Ajit. v. Sofana Ajit [AIR 2007 SC 3151), this Court held: The crucial question is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis- -vis the provisions of the Code of Criminal Procedure. 26. Learned counsel for the respondent contends that the principle that the debtor must seek the creditor should be applied in a case of this nature. 27. We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle. 28. For the views we have taken it must be held that Delhi High Court has no jurisdiction to try the case. We, however, while exercising our jurisdiction under Article 142 of the Constitution of India direct that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, be transferred to the Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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