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TMI Blog2018 (3) TMI 1959X X X X Extracts X X X X X X X X Extracts X X X X ..... on 20.9.2014, therefore, it is apparent that the occurrence in this case is of the period prior to the said Amendment in the N.I. Act, but it would be pertinent to mention here that in DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA ANOTHER [2014 (8) TMI 417 - SUPREME COURT] , the matter of jurisdiction was considered at length in the matters related to Section 138 N.I. Act. Thus, the position of law is absolutely clear that even in pending cases, the jurisdiction of filing a complaint under Section 138 of N.I. Act would lie at a place where drawee bank is situated, where the drawer maintains his account and from where it was reported that there was no sufficient amount in the account of drawer and accordingly, the cheques got dishonoured - From the perusal of cheques, it is apparent that they were presented by the opposite party No. 2-complainant in Aligarh, but in view of above position of law, it is immaterial where these cheques were presented for being encashed. Since these cheques were drawn on the ICICI bank situated in New Delhi, where the drawer or the account holder i.e. the revisionist- accused was having his account and these cheques got dishonoured because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent this revision is rejected. - CRIMINAL REVISION NO. 4441 OF 2015 - - - Dated:- 12-3-2018 - DINESH KUMAR SINGH-I, J. For Appellant : Mahendra Pal Singh Chauha and M.P.S. Chauhan For Respondent : G.A., Babita Upadhyay and Sanjeev Kumar Gaur ORDER Dinesh Kumar Singh-I, J. 1. This criminal revision has been preferred against the judgment and order dated 16/10/2015 passed by the Sessions Judge, Aligarh in Criminal Revision No. 494 of 2015, M/s. Preeti Garments through its Proprietor Shri Ram Das v. State of U.P. and one another, whereby allowing the revision, the order dated 16/04/2015 of the learned Magistrate has been set-aside and the matter has been remanded with the direction to decide the complaint in accordance with law. Vide order dated 16/04/2015, the Judicial Magistrate, Court No. 2, Aligarh had dismissed the complaint Case No. 1140 of 2014, M/s. Preeti Garments through its Proprietor Shri Ram Das v. Surendra Banjara under Section 138 of Negotiable Instruments Act (to be referred from here onwards in short as 'NI Act'). 2. A Complaint Case No. 1140 of 2014 M/s. Preeti Garments through its proprietor Sri Ram Das v. Surendra Banjara w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng upon the position of law laid down in Kamlesh Kumar V. State of Bihar and another, 2014 (2) SCC 424, in which the Supreme Court had held a complaint to be not maintainable in case demand notice was not issued within the time limit, the complaint was dismissed on 16.04.2015 under Section 203 Cr. P.C. 3. Against the said order dated 16.04.2015, Criminal Revision No. 494 of 2015 was preferred by complainant M/s. Preeti Garments through its proprietor Sri Ram Das v. Surendra Banjara. The learned revisional Court has given the details of the facts of this case that the complainant/revisionist was doing business of ready-made garments, in connection of which an amount of ₹ 99,00,000/- was outstanding to be paid by the opposite party No. 2- accused. The opposite party No. 2-accused is stated to have issued three post dated cheques, i.e. dated 15/06/2014 of ₹ 57,00,000/-; dated 10/07/2014 of 30,00,000/- and dated 05/08/2014 of 12,00,000/-. When these three cheques were presented by complainant in his account, they were dishonoured because of insufficient amount being in the account of the drawer, information regarding which was dispatched by the bank on 20/09/2014. When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have issued notice to opposite party No. 2- accused, while the said information was given to the opposite party No. 2-accused by him within just 10 days of receipt of the said information. Therefore, the order passed by the learned Magistrate was erroneous. 4. In rebuttal the learned State counsel had argued before the revisional court that it was wrong on the part of the revisionist- complainant to say that he had received information of dishonour of cheque on 20/09/2014 and not on 23/08/2014. Further, it was stated that the learned counsel for the revisionist- complainant had not clarified in paragraph six of the affidavit as to how the information of dishonour of cheque was communicated by the bank to the revisionist-complainant on 20/09/2014. It was reiterated by the learned counsel for the State that because the opposite party No. 2- accused was not informed within 30 days of 23/08/2014, which was the date of dishonour of cheque, the complaint could not have been filed and it has been wrongly mentioned by the revisionist-complainant that he had received the information about dishonour of cheque on 20/09/2014. 5. The learned Revisional Court has also mentioned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in bank within six months (in place of 'could have been', it ought to be 'were', it appears that the same has been mentioned by mistake), hence the compliance of the first ingredient was fulfilled wholly. It is also mentioned that, a perusal of the documents would indicate that the opposite party No. 2- accused did not make the payment of the said amount within fifteen days of receipt of information of the dishonour of cheque, because he refused to receive the registered post, by which he was sent notice in this regard, therefore, the third ingredient also stands fulfilled. But it is only with regard to the ingredient at No. 2 that there exist a dispute. According to the revisionist- complainant the information regarding dishonour of cheque was given by the bank to him on 20/09/2014, while in the bank memos, the said date is recorded as 23/08/2014 and on the basis of this, the learned counsel for the opposite party No. 2- accused argued that the revisionist-complainant had received the information about dishonour of cheques on 23/08/2014, while in paragraph six of the affidavit he has mentioned that bank had given information about dishonour of cheque on 20/09/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site party No. 2- complainant had filed a Complaint Case No. 1140 of 2014, under Section 138 N.I. Act in the Court of Judicial Magistrate, Court No. 2, Aligarh stating therein that opposite party No. 2- complainant and the revisionist- accused were running business of sale of ladies suits and ready-made garments. In this regard the revisionist- accused approached opposite party No. 2- complainant to purchase ladies suits and ladies garments which were supplied by the opposite party No. 2- complainant for a sum of ₹ 99,00,000/-. For discharge of payment of the said goods, the revisionist- accused had issued post dated cheques i.e. Cheque No. 338060 dated 15.6.2014 for a sum of ₹ 57,00,000/-, Cheque No. 338061 dated 10.7.2014 for a sum of ₹ 30,00,000/-, Cheque No. 338062 dated 5.8.2014 for a sum of ₹ 12,00,000/-. At the time of issuing the said cheques, it was stated by the revisionist- accused that the amount in the cheques would be cleared on the due dates. The said cheques were presented by the opposite party No. 2-complainant in ICICI bank, Branch Jhandewalan Extension, New Delhi, but the same could not be encashed and were returned to the opposite party N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dishonour of the cheques. Only one legal notice was sent for dishonour of three cheques and no date of service of the said notice has been mentioned in the complaint. No compliance has been made of Section 142(b) of N.I. Act, which mandates that the complaint ought to be filed within one month of the date on which the cause of Action arises. As per the complaint, cheques were dishonoured on 23.8.2014 and the opposite party No. 2- complainant got the knowledge about it very same day but he sent notice on 1.10.2014 i.e. after two months of the dishonour of cheque, in violation of provision provided in Proviso (b) to Section 138 N.I. Act, which makes the complaint not maintainable. Further it is mentioned that the allegation is that the revisionist- accused issued cheques at Delhi and was running business at Hyderabad but the opposite party No. 2- complainant has filed a complaint at Aligarh where the court did not have jurisdiction to entertain the complaint. According to the cheques, the limit of these cheques was only up to 50,000/-, therefore, how could the revisionist- accused issue the said cheques which were of huge amount much beyond ₹ 50,000/-, hence, the revision sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used is now denying to have ever issued any cheques to the opposite party No. 2-complainant, rather is taking plea that the said cheques had been stolen and forged signatures were made on them of the revisionist- accused. It was surprising enough that such contention was never raised by him before the courts below nor after having come to know of the said incident, he initiated any criminal proceeding against the opposite party No. 2-complainant. In fact after initiation of the current proceedings, the revisionist- accused had approached the opposite party No. 2- Complainant Firm and called upon it to make a settlement out of court, but when the Proprietor of the firm/opposite party No. 2- complainant reached Aligarh, the revisionist- accused and his brother along with their associates causes violence and threatened to kill him, snatched away his cash and jewellery regarding which an F.I.R. was lodged which was registered as Case No. 273 of 2015 at Police Station Civil Lines, Aligarh, under Section 323, 504, 336, 392 and 506 IPC. It is further mentioned in the said counter affidavit that dishonour of cheque happened on 23.8.2014 but that does not mean that information regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the present proceedings, when the cheques which are alleged to have been dishonoured, had printed on them that they were valid for an amount up to ₹ 50,000/- only and yet the amounts which have been filled up in those cheques are of much higher value. 15. Firstly, the point of jurisdiction is being taken up by this Court. It would be pertinent to reproduce here the relevant provision of N.I. Act, i.e. Section 142 which is as follows. 142 Cognizance of offences. -Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of Action arises under clause (c) of the proviso to Section 138: Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for delivery of any of his property; or because of the receipt of a cheque has induced the payee to omit to do anything resulting in some damage to the payee. The relief introduced by Section 138 of the NI Act is in addition to the contemplations in the IPC. It is still open to such a payee recipient of a dishonoured cheque to lodge a First Information Report with the Police or file a complaint directly before the concerned Magistrate. If the payee succeeds in establishing that the inducement for accepting a cheque which subsequently bounced had occurred where he resides or ordinarily transacts business, he will not have to suffer the travails of journeying to the place where the cheque has been dishonoured. All remedies under the IPC and CrPC are available to such a payee if he chooses to pursue this course of Action, rather than a Complaint under Section 138 of the NI Act. And of course, he can always file a suit for recovery wherever the cause of Action arises dependent on his choosing. 21. The interpretation of Section 138 of the NI Act which commends itself to us is that the offence contemplated therein stands committed on the dishonour of the cheque, and accordingly th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred. 18. From the above analysis the position of law is absolutely clear that even in pending cases, the jurisdiction of filing a complaint under Section 138 of N.I. Act would lie at a place where drawee bank is situated, where the drawer maintains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 22. It is apparent from the above provision that the period for issuing notice by payee or holder in due course is thirty days from the date of receipt of information by him from the bank regarding return of the cheque as unpaid. The question is, therefore, that in the case at hand, when the information was received by the payee/holder in due course opposite party No. 2-complainant. It is alleged by him in counter affidavit that though the cheques were dishonoured on 23.8.2014 as was mentioned in the memos of information but the same was not communicated to him till 20.9.2014. Therefore, according to him he could receive information about dishonour of cheques only on 20.9.2014 and from there onwards thirty days have to be counted within which the notice could have issued to the revisionist. In the case at hand, the notice has been issued on 1.10.2014, therefore, the said notice would not entail any infirm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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