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TMI Blog2013 (11) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... te taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 - there is no question of going back following the procedure under Section 201 - In absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summon in exercise of power under Section 201. Relying upon M/s. Escorts Limited vs. Rama Mukherjee [2013 (11) TMI 95 - SUPREME COURT ] - offence under Section 138 of the Act can be completed only with the concatenation of all the components and for that it is not necessary that all the above five acts should have perpetrated at the same locality; it is possible that each of those five acts were done at five different localities, but a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act. Maintainability of Petition u/s 138 of Negotiable Instruments Act at Mumbai - Goods supplied from Mumbai to Delhi – Held that:- The High Court erred in concluding that the courts at Delhi, did not have the jurisdiction to try the petition filed by the appellant under Section 138 of the Negotiable Instrume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 2nd November, 2011 allowed the criminal revision applications and set aside the orders of learned Magistrate and the matter was remitted back to the Magistrate. However, at the instance of Respondent Nos.1, 2 3 the order passed by the Sessions Judge was set aside by the High Court by the order impugned. 4. Learned counsel appearing on behalf of the appellant submitted that the Magistrate after finding sufficient ground for proceeding and after issuance of summons under Section 204 Cr.P.C., has no jurisdiction to recall or review the order by exercising power under Section 201 Cr.P.C. It is further contended that the High Court failed to consider the aforesaid fact and has no answer to the issue as was raised and decided by the learned Magistrate. Further, according to the learned counsel for the appellant, in the matter under Section 138 of the N.I.Act the appellant having been issued legal notice from Mumbai, the Magistrate has jurisdiction to try and entertain the complaint. 5. Per contra, according to the learned counsel for the respondents, the High Court of Bombay has taken due course and settled all the questions raised in the complaint filed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint is not in writing, direct the complainant to move before the proper court. 12. Section 202 contemplates postponement of issue of process on receipt of a complaint in the circumstances mentioned therein. If the Magistrate is of the opinion that there is no sufficient ground for proceeding, under Section 203 Cr.P.C. he can dismiss the complaint by briefly recording his reasons. 13. The commencement of proceedings before the Magistrate under Chapter XVI starts with issue of process under Section 204 Cr.P.C. If in the opinion of a Magistrate taking cognizance of the offence there is sufficient ground for proceeding, and the case appears to be a summonscase, he shall issue his summons for the attendance of the accused, but if it is a warrantcase, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. No summons or warrant shall be issued against the accused under subsection (1) until a list of the prosecution witnesses has been filed. In a proceeding instituted upon a complaint made in writing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Appeal No.1457 of 2013), 2013 (11) Scale 487. In the said case the Court noticed the earlier decision in K. Bhaskaran vs. Shankaran Vaidhyam Balan Anr., (1999) 7 SCC 510. In the light of the language used in Section 138 of the Act, the Court found five components in Section 138 of the Act, namely, (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; and (5) failure of the drawer to make payment within 15 days of the receipt of the notice. After saying so, this Court held that offence under Section 138 of the Act can be completed only with the concatenation of all the above components and for that it is not necessary that all the above five acts should have perpetrated at the same locality; it is possible that each of those five acts were done at five different localities, but a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act. Having noticed the aforesaid provisions, this court in Escorts Ltd. held as follow: 5. It is ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 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. 15. It is not necessary that all 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 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act. In this context a reference to Section 178(d) of the Code is useful. It is extracted below: Where the offence consists of several acts done in different local areas, it may be inquired into or tried by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reasons, we allow the appeal, set aside the impugned judgment of the High Court and remand the matter to the Chief Judicial Magistrate, Sopore for decision in accordance with law. (emphasis is ours). 7. In view of the above, having taken into consideration the factual position noticed by the High Court in paragraph 13 of the impugned judgment, we are of the view, that the High Court erred in concluding that the courts at Delhi, did not have the jurisdiction to try the petition filed by the appellant under Section 138 of the Negotiable Instruments Act. The impugned order dated 27.4.2012 passed by the High Court is accordingly liable to be set aside. The same is, therefore, hereby set aside. 8. Despite the conclusion drawn by us hereinabove, it would be relevant to mention, that our instant determination is based on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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