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TMI Blog2013 (11) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) - - - Dated:- 17-9-2013 - CJI, P. Sathasivam And Jagdish Singh Khehar,JJ. JUDGMENT Jagdish Singh Khehar,J. 1. This Court on 21.2.2013 directed that the instant SLP (Crl.) No.7325 of 2012 be listed after the pronouncement of judgment in Criminal Appeal no. 808 of 2013 (arising out of SLP (Crl.) No. 9434 of 2011), titled Nishant Aggarwal vs. Kailash Kumar Sharma. Nishant Aggarwal s case (supra) was disposed of by this Court on 1.7.2013. The pointed question, which arose for consideration in this Court s aforesaid determination was, whether the Court within the jurisdiction whereof, the complainant had presented the dishonoured cheque (issued by an accused), had the jurisdiction to entertain a petition filed under Section 138 of the Negotiable Instruments Act. While disposing Criminal Appeal No.808 of 2013, this Court returned a finding in the affirmative by observing as under: (7) We have already narrated the case of both the parties in the pleadings portion. In order to answer the only question, it is relevant to note that the undisputed facts in the context of territorial jurisdiction of the learned Magistrate at Bhiwani are that the drawee of the cheque i.e., t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expiry of 15 days mentioned in clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act. It is clear that this Court also discussed the relevant provisions of the Code, particularly, Sections 177, 178 and 179 and in the light of the language used, interpreted Section 138 of the N.I. Act and laid down that Section 138 has five components, namely, i) drawing of the cheque; ii) presentation of the cheque to the bank; iii) returning the cheque unpaid by the drawee bank; iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and v) failure of the drawer to make payment within 15 days of the receipt of the notice. After saying so, this Court concluded that the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the learned Magistrate at Bhiwani has territorial jurisdiction to try the complaint filed by the respondent as the respondent is undisputedly a resident of Bhiwani. Further, in K. Bhaskaran (supra), while considering the territorial jurisdiction at great length, this Court has concluded that the amplitude of territorial jurisdiction pertaining to a complaint under the N.I. Act is very wide and expansive and we are in entire agreement with the same. *** *** *** (12) Mr. Ahmadi, learned senior counsel for the appellant has also relied on a decision of this Court in Harman Electronics Private Limited and Another vs. National Panasonic India Private Limited, (2009) 1 SCC 720. In Harman Electronics (supra), the complainant and the accused entered into a business transaction. The accused was a resident of Chandigarh. He carried on the business in Chandigarh and issued a cheque in question at Chandigarh. The complainant had a Branch Office at Chandigarh although his Head Office was at Delhi. He presented the cheque given by the accused at Chandigarh. The cheque was dishonoured at Chandigarh. The complainant issued a notice upon the accused asking him to pay the amount from New D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , because it was absolutely silent in that regard and, therefore, there was no option but to presume that the cheque was presented at Chandigarh. It is not in dispute that the dishonour of the cheque also took place at Chandigarh and, therefore, the only question which arose before this Court for consideration was whether the sending of notice from Delhi itself would give rise to a cause of action in taking cognizance under the N.I. Act. In such circumstances, we are of the view that Harman Electronics (supra) is only an authority on the question where a court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down in K. Bhaskaran (supra). This Court has accepted that the place where the cheque was presented and dishonoured has jurisdiction to try the complaint. In this way, this Court concluded that issuance of notice would not by itself give rise to a cause of action but communication of the notice would. In other words, the court clarified only on the service in such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days, therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter for hearing after the disposal of Nishant Aggarwal s case (supra) was, that the controversy arising herein, was exactly the same as was sought to be determined by this court in Nishant Aggarwal s case (supra). The factual position necessary for the disposal of the instant Civil Appeal, was noticed in paragraph 13 of the impugned order, passed by the Delhi High Court. The same is being extracted hereunder: 13. Thus M/s Religare Finvest (supra) relied on by the Petitioner was a case where even the drawer bank s clearing branch which dishonoured the cheque was also situated at New Delhi. In the said case, the jurisdiction was vested in the Courts at Delhi because of the drawer s bank s clearing branch being at Delhi and not because the cheque was presented in the payee bank or that the legal notice of demand was issued from a place at Delhi. Applying the decisions aforementioned to the facts of the present case, I do not consider it fit to state that just because the cheques were presented at Delhi or the demand notice was sent from Delhi, Courts at Delhi would have jurisdiction to try the present case. (emphasis is ours) 4. Having taken into consideration the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Judicial Magistrate, Sopore. The respondent sought dismissal of the complaint on the ground that the Chief Judicial Magistrate had no territorial jurisdiction to entertain the complaint. By order dated 29th November, 2011, the learned Chief Judicial Magistrate, Sopore, however, held that he had the jurisdiction to entertain the complaint. Aggrieved, the appellant filed Criminal Miscellaneous Petition No. 431 of 2011 under Section 561A of the Jammu and Kashmir Criminal Procedure Code and by the impugned order dated 2nd June, 2012, the High Court quashed the complaint saying that the Court at Sopore had no jurisdiction to receive and entertain the complaint. 4. We have heard learned counsel for the parties and we find that in K.Bhaskaran v. Sankaran Vidyabalan and Another, (1999) 7 SCC 510, this Court had the occasion to consider as to which Court would have the jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act and in paras 14, 15 and 16 of the judgment in the aforesaid case held as under:- 14. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the respondent, however, relied on the decision of this Court in Harman Electronics Private Limited and Another v. Nationa l Panasonic India Private Limited to submit that the Court at Shopian would have the territorial jurisdiction. We have perused the aforesaid decision of this Court in Harman Electronics Private Limited (Supra) and we find on a reading of paragraphs 11 and 12 of the judgment in the aforesaid case that in that case the issue was as to whether sending of a notice from Delhi itself would give rise to a cause of action for taking cognizance of a case under Section 138 of the Negotiable Instruments Act when the parties had been carrying on business at Chandigarh, the Head Office of the respondent-complainant was at Delhi but it had a branch at Chandigarh and all the transactions were carried out only from Chandigarh. On these facts, this Court held that Delhi from where the notice under Section 138 of the Negotiable Instruments Act was issued by the respondent would not have had jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act. This question does not arise in the facts of the present case. 7. For the aforesaid re ..... 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