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Judgment
Hasnain Massodi, J.—The fate of petition on hand hinges on answer to the following two questions:--
(1) whether in a complaint u/s 138 of The Negotiable Instruments Act, 1881 (hereinafter referred to as ""Act"") the court within whose territorial
jurisdiction, the collecting bank is located, would have the jurisdiction to entertain and deal with the complaint.
(2) whether the place of issue/despatch of demand notice in terms of Section 138 of the Act determines the jurisdiction of the Court to entertain
and deal with the complaint u/s 138 of The Negotiable Instruments Act.
(3) whether the complainant in the present case was competent to file the complaint.
Before we make an effort to find out answer to the above questions, it would be appropriate to have an overview of back ground facts.
The petitioner in the present petition, admittedly has business relationship with the respondent Company registered under Company's Act, 1956
having its head office at Sheikh Bagh, Srinagar and Branch Office at Sopore, Jammu & Kashmir.
The petitioner on 23.12.2010 drew a cheque No. 3855999 for an amount of Rs. 29,58,746 drawn on Jammu & Kashmir Bank Ltd. Branch,
Imamsahib Shopian, in favour of the respondent. The respondent handed over the cheque to United Commercial Bank, Branch Sopore, for its
collection from the drawee bank i.e Jammu & Kashmir Bank, branch Imam Sahib, Shopian. The United Commercial Bank, the collecting bank in
the present case, on 10.01.2011, informed the respondents that the cheque had bounced and on 04.01.2011 the drawee bank refused the
payment on the ground of ""in sufficiency of funds"" and ""payment stopped by the Drawer"".
The respondent after the cheque was received unpaid, on 31.01.2011 issued a demand notice to the petitioner from Sopore, demanding
payment of cheque amount within 15 days from the receipt of the notice. However, the petitioner failed to make payment within the aforesaid
period, prompting the respondent to file a complaint through its Attorney holder u/s 138 of The Negotiable Instruments Act, 1881 in the Court of
CJM, Sub-Judge, Sopore. The complaint was entertained, statement of witnesses recorded and process issued against the petitioner. The
petitioner, on 30.05.2011, filed the application seeking dismissal of the complaint.
Petitioner's case before the court was that the court lacked the jurisdiction to take cognizance on the complaint, as none of the ingredients of the
offence u/s 138 of The Negotiable Instruments Act, 1881, occurred within the territorial limits of the Court of CJM, Sopore.
The petitioner referring to law laid down in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009) SC 1166 : (AIR 2009 SC
1168) and Rohit Motors & Anr v. M/s. Punjab Tractors Ltd., 2011 SLJ 193: (2011 ACD 127 (J&K) insisted that neither the place of issuance of
notice nor place where collecting bank was situated, were determinative of the"" jurisdiction of the court to entertain and deal with the complaint u/s
138 of The Negotiable Instruments Act, 1881. It was next urged the person filing complaint in the name of respondent Company lacked authority
to file the complaint as the letter of authority appended to the complaint, merely nominates Mr. Mohd Akbar Marazi as an agent for conducting
and following up the legal cases u/s 138 of The Negotiable Instruments Act, 1881 and not to file a complaint.
The application filed by the petitioner did not find favour with learned CJM, Sopore and was dismissed on 21.11.2011. Learned Trial Court
was of the opinion that only process had been issued and cognizance was yet to be taken in the matter and that the court at Sopore had jurisdiction
to entertain and deal with the complaint. While holding so, learned Magistrate placed reliance on the law laid down by the Apex Court in case
titled Smt. Shamshada Begum v. B. Mohammad reported in AIR 2009 SC 1355.
The Trial Court order dated 21.11.2011 whereby petitioner's application has been dismissed and court at Sopore held to have jurisdiction to
entertain and deal with the complaint is questioned in the present petition on the grounds set out therein. The petitioner seeks quashment of
aforesaid order claiming that the order amounts to abuse of process of law and warrants interference u/s 561A, Cr.P.C.
I have gone through the petition as also the record received from the Trial Court and have heard counsel for the parties at length. I have also
gone through the case law reported as;
(i) K. Bhasakaran v. Sankaram Vaidhyan Balan & another, AIR 1999 SC 3762, (ii) M/s. Harman Electronic (P) Limited and others v. M/s.
National Panasonic Limited, AIR 2009 SC 1168, (iii) M/s. Rohit Motors & Anr. v. M/s. Punjab Tractors Ltd., 2010 (2) JKJ 894 (iv) Jambu
Kumar Jain and another v. Tata Capital Ltd. and Ors., AIR 2012 (NOC) 10 (BOM) relied upon by the parties to buttress their respective stands.
It needs no emphasis that offence u/s 138 of The Negotiable Instruments Act, 1881, is not a ""Single act"" offence. The offence u/s 138 of the
Act is complete only when following series of events linked with each other, take place:--
Cheque is drawn by the drawee.
It is presented to the bank.
It is returned by the drawee bank without payment.
Demand notice is given/issued to the draweee.
The drawee fails to make payment within 15 days of the receipt of the notice.
The above catalogued events may not necessarily happen at one place. The cheque may be drawn at place A. It may be presented for payment to
the drawee bank at place B and returned at place C. Notice may be given at place D and the drawee may fail to make payment at place D. The
payee of the cheque or the holder in due course may file complaint at any court within whose jurisdiction any of the events from A to D takes
place. The reason being that one or more of the material events that together constitute the offence u/s 138 of The Negotiable Instruments Act,
1881, has/have happened at any of such place/places.
The Payee or holder in due course, in the circumstances, has option to file complaint u/s 138 of The Negotiable Instruments Act, 1881 in any
of the courts having Jurisdiction over any of the places within territorial limits of which any of the acts was done/occurred. However, we have to
make distinction between the material events and the steps that the payee of the cheque or its holder in due course may have to take in connection
with any of the material events. The place where any step is taken as would only aid or facilitate the one or more material events, is not
determinative of jurisdiction of the court competent to entertain and deal with the complaint. To illustrate the payee or holder in due course, may
have to meet his lawyer residing at a place different from one where above mentioned material events have taken place so as to get the notice
drafted, the place where the lawyer has his office or where the notice is drafted would not be the deciding factor as regards the jurisdiction of the
court to receive and try the complaint u/s 138 of the Act. Similarly, payee or holder in due course may have no time to present the cheque for
encashment/payment before the drawee bank and he may require his friend or agent to go to the Town where the drawee bank is situated to
present the cheque for payment. The place of residence of such friend or agent where cheque is handed over to him is not to decide and determine
the jurisdiction of the court to entertain and deal with the complaint. Having said so, let us examine whether delivery of the cheque by the payee or
holder in due course to the collecting bank is to be treated as a material event so as to conclude that the place of collecting bank would determine
the jurisdiction of the court to take cognizance of the complaint u/s 138 of the Act.
The payee or holder in due course has complete freedom to deliver the cheque for encashment to his collecting bank at any place in the
country. In case, place where collecting bank is situated, is allowed to determine jurisdiction of the Court competent to take cognizance on
complaint u/s 138 of the Act, the payee or holder in due course would have choice to file the complaint in the court having jurisdiction over the
place where collecting bank is situated. In other words, the payee or holder in due course, would have complete choice to file a complaint u/s 138
of the Act in any court in the Country, and drag the drawee of the cheque to the court of his choice, unmindful of inconvenience or hardship it may
cause to such person.
To illustrate the payee or holder in due course may deliver the cheque, drawn at the Bank at Srinagar, to its collecting bank say at
Kanyakumari or Kohima and in case the cheque bounces, may drag the drawer belonging to Srinagar to the said court at Kanyakumari or
Kohima. Such an interpretation of the expression ""presenting of the Cheque"" to the bank as mentioned in Bhaskaran's case (supra), would have
disastrous consequences for the drawer of the Cheque, expose him to immense hardship and would be in conflict with the mandate of Article 21. It
may be reiterated that procedure contemplated by Article 21 of the Constitution is to be reasonable, fair and just as laid down in Manika Gandhi v.
Union of India, AIR 1978 SC page 597.
The payee or holder in due course in the said case more so when it is a company having net work of offices in the country give them a long
rope to convert the complaint u/s 138 of the Act, as a tool to harass the drawee of the cheque.
It is argued by Mr. Z. A. Shah, Sr. Advocate, counsel for the respondents, that in case, the delivery of the cheque to the collecting bank is not
held to be the material event, so as to give jurisdiction to the court within whose territorial limits the collecting bank is situated, the payee would be
forced to go to the drawee bank to file the complaint u/s 138 of the Act, and thus be exposed to same kind of inconvenience as is to be faced by
the drawer of the cheque in the event, location of the collecting bank is held to be determinative of the jurisdiction of the court to take cognizance
on such complaint.
The argument may sound attractive but is specious and without merit. It is to be appreciated that the payee of the cheque while accepting the
cheque drawn at, say bank situated at place ""A"" in lieu of the payment due to him, is taken to have consented to receive the payment at place ""A"".
Once the cheque bounces he is presumed to have consented to the jurisdiction of the court at place A. In other words, there is an element of
consent on the part of the payee to the jurisdiction of the Court, within whose territorial limits the bank on which the cheque is drawn. The drawer
of the cheque at the time the cheque is drawn and accepted by the payee, is not aware of the place at which the cheque may be handed over by
the payee or holder in due course to the collecting bank and cannot be taken to have consented to such delivery and consequential jurisdiction of
the court where the collecting bank is situated.
I am of the view that collecting bank has no status other than that of an agent and it is not the collecting bank that refuses the payment or where
the cheque is dishonoured and the jurisdiction, therefore, cannot be decided on the basis of location of the collecting bank. Once payee or its
holder in due course hands over the cheque to its collecting bank, the collecting bank acts as a conduit like a friend or agent of the payee of the
cheque or its holder in due course, who merely forwards the cheque to the drawee bank. It is the drawee bank that refuses the payment or where
cheque is dishonoured and therefore, the court within whose jurisdiction the drawee bank is situated, is to have jurisdiction to entertain and try the
complaint u/s 138 of the Act.
So viewed, the court at Sopore, had no jurisdiction, to receive and entertain the complaint.
Observation made by the Trial Court that cognizance was yet to be taken and only the process has been issued, is self contradictory,
erroneous and not expected of a Judicial Officer presiding over the court of Chief Judicial Magistrate. Learned Magistrate has issued process
(bailable warrants in the amount of Rs. 500 addressed to Superintendent of Police, District Pulwama,) against the petitioner and cannot be heard
insisting that he has not taken cognizance of the matter. Be that as it may, observation does not in any manner change the complexion of the matter.
The answer to question No. 1 is thus to be in negative.
This takes us to question No. 2. The offence u/s 138 of The Negotiable Instruments Act, 1881 is complete only and only when the drawer of
the cheque fails to pay the cheque amount within 15 days, after the service of the notice. The drawer cannot be prosecuted only because cheque
bounced or payment was refused because of ""insufficiency of funds"" or he stopped payment or he was aware at the time cheque was drawn that
there were not sufficient funds in his account. The reason being that even after all these events, the drawer may act upon the demand notice and
pay cheque amount to the payee or holder in due course within 15 days after receipt of the notice. Against the said backdrop, receipt of the notice
by the drawer of the cheque assumes significance and can very well be treated as key element in commission of the offence u/s 138 of The
Negotiable Instruments Act, 1881.
In the said background, the expression ""giving notice in writing"" and ""receipt of the said notice"" in proviso (b), (c) to Section 138 of the Act is
to be interpreted as having reference to the place where the notice is received by the drawer of the cheque and he fails to make the payment within
15 days from the date of such receipt. Such interpretation would assume importance where the place of despatch of notice and the place of receipt
of notice are two different jurisdictional areas, two different towns or cities. In such a case, the material event takes place at the place where the
demand notice is received by the drawer. In the present case, the notice was despatched from Sopore to the address of the petitioner at Imam
Sahib, Shopian. Notice therefore was received/is presumed to have been received by the petitioner at Imam Sahib, Shopian. It is the place of
receipt of notice that is determinative of the jurisdiction of the court and not the place at which the notice was posted or dispatched. The answer to
the 2nd question is also to be in negative.
In view of the answer to questions 1 & 2, it is not necessary to go to question 3 which is factual in character and to be dealt with only after the
trial commences and the parties produce evidence in support of their respective stands. In any case, the answer to question No. 3 is not going to
have any effect on the maintainability of the complaint and jurisdiction of the CJM, Court Sopore to entertain and deal with the complaint in face of
answer to questions 1 & 2.
For the reasons discussed, the petition is allowed and the complaint titled FIL Industries Limited v. Imtiyaz Ahmad Bhat and the proceedings
emanating therefrom pending before the Chief Judicial Magistrate, Sopore, are quashed.
Record be sent down. Disposed of.