Ashok Harit vs Mukesh Gupta

U.S. Tripathi, J.—This revision has been directed against the order dated 16.1.1996, passed by Vth Additional Chief Judicial Magistrate, Meerut in Criminal Case No. 1442 of 1996, summoning the applicant u/s 138, Negotiable Instruments Act.

The opposite party filed a complaint against the applicant u/s 138, Negotiable Instruments Act with the allegation that the applicant had issued a cheque of Rs. 7,000 on 25.6.1995 and another cheque of Rs. 10,000 on 25.7.1995, in favour of opposite party in respect of arrears of security amount. The said cheques were presented for encashment in State Bank of India, Begum Pul Branch, Meerut. But the above bank dishonoured the said cheques on 12.8.1995. The opposite party sent notice to applicant on 17.8.1995, through registered A.D. post informing about the dishonour of cheques, but the applicant returned the said notice on 29.8.1995. On 5.9.1995, the opposite party personally went to applicant and informed him about return of notice but he told that he had read over the contents of notice and he would pay the amount at an early date. Thereafter, the applicant did not pay the amount of cheques hence the complaint.

The learned Magistrate on considering the evidence of the opposite party under Sections 200 and 202, Cr. P.C. summoned the applicant u/s 138, Negotiable Instruments Act.

Aggrieved with the above order the applicant has come up in this revision.

I have heard Sri L. P. Singh, learned Counsel for the applicant and Sri K. K. Arora, learned Counsel for the opposite party and perused the record.

The first point raised by the learned Counsel for the applicant was that the house in respect of which security amount was paid was situated at Jaipur (Rajasthan). The cheques issued by the applicant related to Jaipur-Bikaner Bank and were issued at Jaipur. The cheques were also dishonoured by the said Bank, though the opposite party had presented the same at his bank at Meerut for encashment. Therefore, the entire cause of action arose at Jaipur and the Courts at Meerut had no territorial jurisdiction to take cognizance of the case. The impugned cheques or its copy have not been annexed with the petition nor there is such averment in the affidavit of the applicant. Moreover, this question cannot be gone into in this revision as it requires evidence. This factual point can only be decided by the trial court on the basis of the evidence of the parties.

The next point raised by the learned Counsel for the applicant was that no legal notice was served regarding cheque of Rs. 7,000 as it is clear from the averments in the complaint (Annexure-1) and in the notice regarding cheque of Rs. 10,000 no specific demand within 15 days of the service of the notice has been made and that there was no refusal of the notice. Therefore, notice is invalid and on the basis of it no cognizance could be taken. None of the parties have filed copy of the notice. Therefore, this Court is not in a position to ascertain whether there was no mention regarding cheque of Rs. 7,000 or whether there was demand of the amounts of cheques and whether there was endorsement of the Postman regarding refusal of the notice by the applicant or not. There is also no averment regarding above facts in the affidavit of the applicant. Therefore, no legal finding can be recorded on these points also. Moreover, these points are also to be considered by the trial court on the basis of the contents of the notice. The parties learned Counsel agreed that the trial court be directed to decide these points before proceeding further with the case.

Since the points raised by the learned Counsel for the applicant cannot be decided by this Court, the applicant may be given opportunity to raise these points before the trial court and the trial court shall decide the same before proceeding further with the case and shall pass appropriate order u/s 245(2), Cr. P.C., if so required.

The revision is, therefore, finally disposed of with the direction that the applicant may raise the points regarding territorial jurisdiction and validity of notice before the trial court and the trial court shall decide the same as provided u/s 245(2), Cr. P.C. before proceeding further with the case at an early date.