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Judgment
S. Tamilvanan, J
The writ petition has been filed, seeking an order to issue a writ of declaration or any other appropriate order in the nature of writ, declaring that
the criminal proceeding pending before Judicial Magistrate No. 3, Pune, the first respondent herein in S.C.C. No. 18814/2006 as null and void or
in the alternative to transfer the aforesaid criminal case to any competent Judicial Magistrate at Chennai.
Mr. S. Kamadevan, learned Counsel appearing for the petitioner submitted that the second respondent had given financial assistance to the
petitioner to the tune of Rs. 3,40,000/- for purchase of used Toyota Qualis Car, bearing Regn. No. TN21-R-5702. The aforesaid amount shall be
repaid in 35 monthly instalments at the rate of Rs. 12,850/-, inclusive of interest payable on the principle amount and for prompt repayment, the
second respondent collected 18 post dated cheques for a sum of Rs. 12,850/- each from the petitioner herein payable on 20th of every month
commencing from February 2005. According to the petitioner, he had paid instalments initially for five months and for which, post dated cheques
were honoured. Subsequently on 31.08.2005, the petitioner voluntarily surrendered the vehicle to the second respondent with an assurance that he
would take back the vehicle after clearing the dues for the default period. However, due to the dishonour of other cheques, the second respondent
initiated proceeding u/s 138 of the Negotiable Instrument Act and now the criminal proceeding is pending before the Judicial Magistrate, First
Class Court No. 3, Pune, Maharashtra State, which is sought to be declared null and void or alternatively to transfer the case to any competent
Judicial Magistrate Court, Chennai, under the supervisory jurisdiction conferred under Article 226(2) of the Constitution of India.
Mr. R. Uma Shankar, learned Counsel appearing for the second respondent submitted that the writ petition itself is not legally maintainable, on
the ground that the legal action initiated u/s 138 of Negotiable Instruments Act, could not be challenged by way of filing writ petition under Article
226, by the petitioner, who has admitted the issuance of the dishonoured cheques. In support of his contention, the learned Counsel appearing for
the second respondent relied on the decision of the Apex Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, and also the decision
of a Division Bench of this Court in Rajchand Tea Industries and Others Vs. Judicial Magistrate Class First and Global Tea Brokers (Division of
Sunitha Finlease Limited), .
In K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, , the law laid down in clear terms by the Hon''ble Supreme Court is as follows:
The offence u/s 138 of the act can be completed only with the concatenation of a number of acts. The 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.
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 five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence u/s 138 of the act. In
this context a reference to Section 178(d) of the Code is useful. It is extracted below:
(a) - (c) ... ... ... .
(d) where the offence consists of several acts done in different local areas, it may be enquired into or tried by a Court having jurisdiction over any
of such local areas.
Thus it is clear, if the five different acts were done in five different localities anyone of the Courts exercising jurisdiction in one of the five local
areas can become the place of trial for the offence u/s 138 of the Act. In other words, the complainant can choose anyone of those Courts having
jurisdiction over anyone of the local areas within the territorial limits of which anyone of those five acts was done. As the amplitude stands so
widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence u/s 138 of the Act.
In the instant case, the petitioner herein has stated that the second respondent cannot file complaint u/s 138 of Negotiable Instruments Act
before the Judicial Magistrate Court No. 3, Pune in Maharashtra State, on the ground that the transaction had taken place at Chennai. According
to him, the second respondent who collected 19 post dated cheques from the petitioner seems to have presented some of the cheques for
collection through a Bank at Pune in Maharashtra State and the petitioner has also disputed the interest payable thereon. As held by the Division
Bench of this Court, in Rajchand Tea Industries and Others Vs. Judicial Magistrate Class First and Global Tea Brokers (Division of Sunitha
Finlease Limited), , it is open to the drawee to choose any one of the places for the purpose of registering his complaint, u/s 138 of Negotiable
Instruments Act, based on the cause of action. It is not in dispute that the post dated cheques issued by the petitioner, were dishonoured by the
concerned Bank due to ''insufficient funds'' in the Bank account of the petitioner. If the petitioner has any legal grounds to quash the proceeding, he
could have approached only the Bombay High Court, which has superintending power over the Judicial Magistate First Class, Court No. 3, Pune,
State of Maharashtra. The criminal action initiated u/s 138 of the Negotiable Instruments Act, pending before the Judicial Magistrate, Pune,
Maharashtra state, cannot be challenged by way of filing writ petition before this Court, under Article 226 of the Constitution of India, as this Court
has no supervisory jurisdiction over the Judicial Magistrate court, Pune in Maharashtra State.
A combined reading of Clauses (1) and (2) of Article 226 of the Constitution, would establish that writ can be issued against a Government,
person or authority if (1) its seat is within the High Courts jurisdiction or (b) the cause of action has arisen, wholly or in part within the High Court''s
jurisdiction, if it is otherwise maintainable.
In the instant case, the proceeding pending u/s 138 of the Negotiable Instruments Act is the Judicial Magistrate''s Court, Pune, which is not
under the territorial jurisdiction of the High Court of Madras. It is not in dispute that the Bombay High Court is having supervisory jurisdiction over
the Judicial Magistrate''s Court, Pune. Hence, even for seeking the remedy u/s 482 of the Code of Criminal Procedure or under Article 227 of the
Constitution, the petitioner could have approached only the Bombay High Court, having supervisory jurisdiction over the Magistrate Court, Pune.
Similarly, the writ petitioner cannot seek an order from this Court to transfer the proceeding, which is pending on the file of the Judicial Magistrate,
Pune to any Judicial Magistrate Court at Chennai, as the same is not legally maintainable, for want of jurisdiction.
The powers conferred upon the High Courts to issue writs under Article 226 of the Constitution is extra ordinary and discretionary in nature and
hence, existence of an alternative remedy is a relevant factor to be considered while exercising the power. When an alternative and equally
efficacious remedy is available to a litigant, the party should pursue that remedy and may not invoke the special jurisdiction of the High Court to
issue a prerogative right. As contemplated under Clause 1 of Article 226 of the Constitution, every High Court shall have powers to issue
directions, orders or writs through out the territories, in relation to which it exercises jurisdiction to any person or authority.
In Union of India v. C.L. Jain reported in (1996) 84 ELT 17 (SC), it has been held by the Hon''ble Supreme Court that if an aggrieved person
has right to file an Appeal or Revision Petition under a relevant statute, the High Court may refuse to entertain a petition under Article 226, on the
ground of proper, efficacious and statutory remedy available to the petitioner.
In Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, , the Hon''ble Apex Court has held that every High Court has
power to issue writs, directions or orders under Article 226 for two purposes, namely: (1) for the enforcement of fundamental rights; and (2) for
any other purpose, regarding protection of fundamental rights, hence, like the Supreme Court, High Court is also bound to enforce and protect
fundamental rights. However, with regard to the rights other than fundamental rights, the jurisdiction of the High Court is discretionary and normally
a High Court would not exercise its extraordinary jurisdiction under Article 226 when an alternative, suitable, adequate and equally efficacious
remedy is available to the aggrieved person.
In Central Coalfields Ltd. Vs. State of Jharkhand and Others, the Hon''ble Apex Court has held that where a statute creates a right or liability
and also prescribes the remedy or procedure for the enforcement of that right or liability, resort must be had to the said statutory remedy before
invoking extraordinary and prerogative jurisdiction of a High Court, under Article 226 of the Constitution.
Under Article 226 of the Constitution, the High Court may exercise its extraordinary jurisdiction against Government or any authority within its
territorial limits or if cause of action partly or wholly has arisen within the territorial limits of the High Court.
In the instant case, the criminal proceeding initiated u/s 138 of NI Act is pending before the Judicial Magistrate No. 3, Pune, Maharashtra
State, against which the petitioner has filed the writ petition by invoking Article 226 of the Constitution of India, though there is lack of territorial
jurisdiction. As it is a legal proceeding under challenge, when statutory remedies are available u/s 482 Cr.P.C. the petitioner is not entitled to file
any writ petition, invoking Article 226 of the Constitution, on account of the efficacious statutory remedy available to the petitioner to ventilate his
grievance before appropriate forum. Writ Petition being filed under Article 226 cannot be entertained, when there is proper, efficacious and
statutory remedy available to challenge the criminal proceeding u/s 482 of the Code of Criminal Procedure and also under the power of
superintendence over all courts and tribunals through out the territories available to the High Court of Bombay, which exercises jurisdiction under
Article 227 of the Constitution. Hence, the petitioner herein is not entitled to seek the relief in this writ petition filed before this Court, under Article
226 of the Constitution, as it is clear that this writ petition has no legs to stand. Filing a writ petition without territorial jurisdiction, when efficacious
statutory remedy is available.