Shree Raj Travels & Tours Ltd. v. Destination of the World (Subcontinent) Private Ltd

3. Taking cognizance of the complaints, thE· learned ACMM surnrnonecl e petitioners to face trial for an offence punishable under Section 138 of e N.L Act.

4. Upon service of the sutTtrnons, the petitioners filed application(s) under Section 177 Cr.P.C. inter-ana stating that the courts at Delhi have no jurisdiction to take cognizance of the complaints· and prayed that the complaints be retu ed to the respondent to be filed in the court of competent jur-isdiction. gether with the sa1d application(s), p-etitioners 2 to 7 filed appncation(s) seeking exemption for personal appearance before the Court. Dismissing the application(s) ·::;eeking exemption fro~n personal appearance and keeping pending, fer consideration, application(s) filed under Section 177 Cr.P.C. vide order dated 25.05.2010 tile learned ACMM issued bailable warrants against petitioners 2 to 7.

5. t-\ggrieved by e order ola 25.05.2010, petitioners 2 to 7 filed petition(s) under Section 482 Cr.P.C. before thi::; Court, which petitions were dismissed vide order dated 23.09.2010. i\ggrieved thereto, petitioners filed petitions seeking Special leave to Appeal before the Supreme Court which were disposed of vide order dated 14.1.2011 with a direction to the learr~~ed,6,C~~M that applications filed under Section 177 Cr.P.C. vvould be disposed of within 2 weeks.

6. Vide order dated 14.02.2011 the learned ACM~i:; dismissed the application(s) under Section 177 Cr.P.C. fiiecl by the petitioners on the ground at in view of the dictunof law laid down by the Supreme Court in the decision Cri.M.C.No 1056/2011 &; con:··.ected mattc~r:: Page8of[2].[7] y reported as (2004) 7 SCC 338 ~~fJ1dalat Prasad 11 Roop La/ linda! once the l\·12Jgistl~ate has ken cognizance of a complaint he llas no power return the same to th[2] complainant with a direction tllat the same be filed in a court of competent jurisdiction.

7. Aggrieved by tile order dated 14.02.2011 passed b/ tile !earned ACMM, the petitionE~rs have filed the abovecaptioned petition(s) under Section 4B[2] Cr.P.C. requiring this Court to hold that ccJurts at Delh~ have no jurisdiction to take cognizance of the complai in question and seek directions to the learned ACMM to retu1~n the same for filin~J befor-e the Cou1~t of Competent Jurisdiction.

8. It is the case of the petitioners that the cheques 1n question were drawn at Murnbai. The drawee bank is a= Mumbai, notice issu.::ol by the r(2sponolent to the petitione,company was 1-eceived at Mumbai and thus merely because the respondent posted tile notice from De~hi and depositecl · tile cheque with its bank at Delhi would not confe·· jurisdiction on Courts in Delhi.

9. Tile issue lias trJ be debated JV ~-eFerence to Sectior, 138 of the Nl P,ct and the applicable provis~ons of the Code of Criminal l:lrocedure i.e. Sections 177, 178 ancl 179 of the Code of Criminal Procedure.

10. in the decision reported as 1999 {7') sec 510 I(Bl7askaran 115.- Shafll;_arEU}_ 1/C!J.Q_!JJ;an Balan S An[1]::::, the Supreme Court. has opined, afte1- considering:Sections 175: to Section 179 of the Code of Ci-~rn,ina~ Procedure, that ar: Crl.J11J.C.I\Jo.1056/2011 Px C:OI'I'PC.i·ed matters.~. \ ' offence may be completed in d rent,localities and thus can be tried in an Court hcving jurisdiction over said localities. 'o nr!~ ir oithlv lin;-,a!a'-ion to ter·-[t-oria 1 1 t-'..... ~...... t n 1 J l ~ ~- Li., 1 t 1.... ~ l jurisdiction, qc:a an ·Jffence, law recognizes more than 1 court l1avingr terr-itorial jurisdiction and the issue of territoria jurisdiction would have to be decided v1rith reference tc vvhether a part of an offence \-vas committed within thE territorial jul-isdiction of a court. The issue ~s no long(~r;·es integra and I just ne(~ci to note the decision of the 5up:-eme Court in. KBf7askara.nls case (supra) and hiQihlight that the aforesaid is to be cuiied out fror~n paras 11 and 1:2 of the said decision.

11. The next logicc:d question \Nould be, vvhat are t!1e contour-s of Sectlor' 138 of the Nl t pertaining to acts to be perforrned in relation to an offence contemplatec! by the said Section? It hardiy be re-ernr:d~1asized that It are acts of cotTlmission or o1·nission vvhich constitute offences, \Nith or w·ithout the requisite rnens rea, depending upon vvhether the offence is an abs:Ji~1te offence or not.

12. Let me tllus nGI.~e Section 13Ei, r·~i A.ct which reads as under:- \Nhere any cheque drawn f;:)jf a person on 2n account: maintained by hirn wi a banker fo~~ payment of any amount of rrnoney to anotlier person frorn out of th account for the dischar~::Je, in whole or in part, of any debt otother liability, is returned loy the bank unpa~ol, either because of the anwu of rnoney standii-\Q.to tile credit of that account Ls insufficient to honour the cheque or that it EYceeds the arnount arranged to be paid from that account by an, CrUv'l.C.No.l056/2011 1St cor!Ps''~Lr:>d n1e1tters Page:w of 27 ~ agreement rnac!e with that bank.. such person shall be deeiTJed to hav·e c:omrn,itted an offence and shall wit,lout prejudirr:e to any other provisions of this Act, be punished vvilth imprisonment for a term vvhkh may extend to two year, or wi fine which ITJay extend to tvvice the amount of e cheque, or with both: Provided that nothing contained in is section shall app~y unless- (a) The cheque has been pr·esented to the bank within a period of six montihs from the date on which it is drawn or within e period of its va !idity,, whichever is earlier. (b) The payee o'- tile ho1de1· induce course of the cheque, as the case may be,, makes a demar'1d for the payment of the said amount of money by giving (!1 notice, in writing, e drawer, of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and

(c) The drawer of such cheque ils to make the payment of the said amount of money to U1e payee or, as the case may be, to the holder in due course of the cheque, vvithin fifteen days of the receipt of the said notice, · Explanation: Fo1- the purpose of this Jldelot or other iiabi~ityll means a enforceable debt or other liatdility. section. lega!ly.

13. In B!Jaskaran's case (supra) thr~ St!pt-eme Court had an occasion to deal with tile issue of territoria~ jurisdiction in relation to Section 138 of the Nl ct and of necessity, the discussion requli-ed the Supreme Court to ~den,bfy the various acts of commission and G!Ti,fssioni' whkh constituted the offence punishabl;:" under Sect on 138 of the N! 1\ct and suffice vvould 1it be to highligllt that in para 14 of the Cri.IVI.C.f~o.l056/2.0ll 8t connected maUer·s.[7] • decision, the Suprerne Court il!9hHg1hted that there are ~.·• acts which are the components. of e offence punishable under Section 138 of the Ni Act and 11 re-produce the same from para 14 oF the decision of the Supreme (Court. They read as under:-

(i) drawinq of the cheque,

(ii) presentation of the cheque tile bank,

(iii) returning the cl-i:=que unpa~d by the drawee bank,

(iv) giving notice ir[1] writing to the drawer of the cheque demanding payn1ent of tile cheque amount,

(v) failure of the dl-3\Ner to ma payment within 15 days of the receipt of tile r1otice.

14. After holding at 5 acts wou~ol constitute the components of an offence under Section 138 of the Ni Act,, in paras 15 and 16 the Supreme Court observed as under-:- /{15. it is not necessary that a~l the above five· acts should have been perpetrated at the same locality. it is possible that eaclh of those five acts could be done at five diffe1~ent ~oca Hties. But a concatenation of all the above five is a sine qua non fof- the con1pietion of e offence under Section 138 of tile Code,.In this context a reference to Section 178( d) of e Code is usefuL It is extracted below:

16. Thus it is clear, lf the five different acts were done in five different localities any one of the courts exercisin,g: jw·isdiction in one of the five iocal areas can become the place of trial for tile offence unde1~ Section 138 of tile Act, In other words, tile complainant can choose any one of Cri.M C.~Jo.1056/20E &. contiecced matter.o Page lZ ofZ[7] those courts having jurisdiction over any one of the local ar~eas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expans;ive it is an idle ·exercise to raise jurisdictional question 1-egrarding the offence under Section 138 of the Act.IT (En7phasis Supplied) l

15. On the issue of service of notice required to be given by the complainant to the accu:sed,. the Supreme Court observed as under:- "17. The more important point to be dedded in this case is whether the cause of action h~as arisen at all as the notice sent by the complainant to tile accu9~c! \Nas returned as uunclaimed". The conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in clauses (b) to (c) of the proviso to Section 138 of the Act. The said clauses are extracted belovv:

18. On tile pai-t of the payee he has to make a demand by ug,iving a notice''! in writing. ~f that was the only requirement to complete the offence on the {ailure of tile drawer to pay the cheque amount within 15 clays from the date of such "1giving 11, the travai~s of the prosecution would have been very much lessened. B tlhe legislature says that failunc:: on the part of the drawer to pay the amount should be within 15 days "of the i-eceipt" of the said notice. it is, therefore, cl ea 1~ that "giving notice" in the context is not the same as receipt of notice. Giving is a pnJcess of vvhich receipt is the accomplisllment. It is for tile payee to perform the former process by send1ir-H::;1 the notice to the drawer at the co:Tect address. Crl.fVI.CI\Io.1056/2011 6t connected matters Page B of 2.[1]

20. If a strict interpretaUon~ is given that the drawer should have actually received the notice for the period of 15 days to start running n.o matter~ that e payee sent: the notice on the correct address.. a trickster c=if·leque drawer wou,!d get the premiunl to avoid rr2cei ng 1Che notice b)r different strategies and he could escape from the legal consequerlces of Section 138 of the.Act. !t must be borne;n nnind that the court shou!d not adopt.an inte retation which helps a dishonest evader and clips an honest payee as that woU!d defeat the very legislative rneasure. 21.....The context envisag)ed in Section 138 of the Act imlites a liberal i erpl-etation r the person who has tile statutorv ololig1ation to give notice because he is presum to be the loser in the transaction and it is for his interest the ve1~y provision is made by the !e~Jislature. The words in clause (b) o"' the proviso to Section 138 of the l\ct sho\N tllat ti:e payee has the statutory obligation to {[make a demand"' by g1iving notice. The thrust n the clause is on the need to Hmake a demand". it is only the nrliode for making such demand which _ e -legislature has prescribed.,~ payee can send tl~1e notice fo1r doing his part for giving the notice. Once it is despatched his part is over and the 1le;<t c!epencis on 'What t~le sendee d ~pc.; U~---·

22. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide Narcharan Singh v. Shhrrani[2] and jagdish Sing/7 v. Natthu Singh]~).23. Hr·:·n:·~ rhe:·:c,hce is rn:·eol as undain11ed and not as refused. V\lill then=· any signincant: d'1ffe ~~P,~-~ (':=--' hP.,_,,.rc. o r[1] ti·lP ··,-~r·rrr-; c: o fa~ r.21 '· e -. ' - ~ - \.... - L. "-- C- -...... ~ ! \. 1_ _,._) ~,I J,..). presumption of ser~vice is ~=o!·lcerlled? !n this l Cr!.iV!.Chto.1056/2011 81 con:-,e•:::t:·c! matters Page J.L~ of 2.[7] connection a reference Section 27 of the General Clauses i\ct will be usefuL The section reads thus:

24. No doubt s,ection 138 of e Act does not require that the notice shoul:j be given only by "post". ~ionethe!ess the pri'K.;ple incorporated in Section 27 (quoted above) can profitably be imported in a case where e sender has despatched the notice by po.st vvith the correct address vvritten on it. Then [It can be deemed to have been se:ved on e sendee unless he p1~oves that it vvas not really served and that he was not (espc:lsible for such non-service. J\ny other interpretc,tion can leacl to a very ternuous position as the drawer of the cheque vvho is liable to pay the amount would 1~esort to the strategy of subtet-fuge by successfuHy avoiding tile notice.

25. Thus, vvhe!'l a notice is rned by e sendee as unc aimed sue dat~= v\fould be the commencill'Q elate in reckoning the period of 15 days conternplatec! in claus.e (c) to the proviso of Section 138 of the Act. Of course such reckoning would ibe without prejudice to the right of the drawer of the cheque to show that he had no knowledge ttlat the notice vvas brought to his address. In the oresent case the accused d~d not even attempt to discllarge t!Te burden to rebut tl)e aforesaid p:-l=sumption.'· (Etnphasis Supplied)

16. The expressions: fpresentatfor? o/ the cheque to the Bankf a.nd 'if the five differelJ,t acts were done in li've different loc-alities any one LJ?e courts e''·'e,~r;'c;in a /~.,,.__..._.;.~·.../ jurisdiction in one of t/7e five local areas can becotne the o/ace of"tria! i'ol- the ofi~ence under Section 138 ol the i4ct' to h, f I'd' ' r,~~r-·r l ·i ·:o· I ]i= ":"'<:;1').-·'-··. i., '. D':::.~·>~.~-- ··'c,)E:: ' 0,.J (l I! l:JG. C/:.::, ·-:·+ 0. i.l 0 --,_) I;::-;- ',-- et.ll veI y In !:c::~(h.:.:.?J'.':<;;~.:_o:;oJJ..) cas:e (supra) have been understood many to rnean that Cri.~JI.C.!\Io.1056/2011 E.t CDI"I'!:OCtec! n:;:.tters Page 1S of Zl the Court within loc3l limits of vvfl:c:h e payee Bank i.e. the Bank when~ i=he ''Jrnplainant cleposited the cheque is situated has the jurisdiction to lTy tine comp!a~nt unde(" Section 138 of the Ni Act, nnd the tmolerstanding appears to be fortified by the observations of the Supreme Court in paras 15 and 16 that if the 5 acts contemp~ated as the ingredient of an offence under Sect~on 138 of the f\H Act vve1-e clone in 5 cliff~r-ent !oca! es, any one the court exercising jurisdictiOil in any one the 5 ~ocal areas V/ould have j urisdictio ll.

17 But it is apparent that the observations in para 15 and 16 are an obiter as it Is not 5 places where the 5 acts constituting an offer-;ce under Section 138 of the Ni 1\ct can possibly be pe1~fo1Tned The act:; can be performed, as would be explained lv:='reinafter, onlly at 4 p~aces and ~ would immediately state that act No.2 and act No.3 relate to only one place i.e. the place where the dravvee bank is located.

18. The second and the tl1ird act, the 5 listed by the Supi-eme Court as COilStituting ~~ offence under Section 138 of the Nl Act are: (a) presentation of the cheque to the bank; and (b) returning the cheque lJnpaid by the drawee bank.

19. The third act is tile return tile cheque unpa~d by the dra·wee bank and thus ther·e is no scope for any artQument as to which bank is contemplated vv reference to the said. act. The second act pertains to the act of presentatiorl of. cheque to the IJank. i highlight tn tllr[2] twin vvordls used are 'the bank. Cri.M.C.No.1056/2011 iSt con~:ec::ed matte1·s.[7] 1/

20. ~n e decision n::pmted as 2001 (3) SCC 609 Shri !shar Allov Steels Ltd. Vs. /avaswals Neco / td, a 3 Judge Bench of the Supreme Cou having as a member of the Bench the author of the judgme in Bhaskarads case (supra), dealt with and decided as ·vvhat would be meant by I the bank' as mentioned in Section 138 of the N! Act. V\/as it the drawee bank or e [Jayee bank? e Supreme Court answered the question !n the foliow'ing words:- " 2. (a) \!\I hat is rneant by, I,, t he bank" as mentioned in clause (a) of the proviso to Section 138 of the Neg able !Instruments Act, 1881? (b) Does such bank mean the bank of the draiNer of t~1e cheque or the payee of the cheque?

(c) To whidl bank the cheque is to be presented for the [Ql!Jrooses oif attractinq the penal provisions of Section 138 of the Act?, are the questions be deterrnined by this Court in is appeaL 7 _ ~t has f.: I- ":y:; noticec! a:= to make an offence.under S:2c:tion 138 of the Act, it is mandatory that e cheque is presented to "the bank" within a riod of six months from the date on vvhicr11 it is drawn or within the period of its validity, whichever is earlier" ~t is the cheque drawn which has to be presented to "the bank" within the period specified therein. When a postdated cheque is vv:-itten or dra11vn, it is only a bill of exchanQJe. The post-dated cheque become a cheque under rh::::· Act on the date which is written on the saiol cheque ancl the six months' CrLM.CI\Io.1056/2011 81 connected nv1tter·s Page17 ofn '}/ periocl has to be reckonE,], for the purposes of Section 138 of the Act, from the said date.

8. Section 138: pr-ovides at 'ltlhere any cheque drawn by a person on an account maintained by him with a "banke1_~, for payment of any amount of money to another pe1~son rn out of that account for t!~Je discharge, in whole or in part, of any debt or er liability,,is (eturned IIJy "the bank" unpaid, either becausr= of tile amount of money standins;;~ to the credl:= that account is insufficient to honour the cheque or that it exceeds the a ount arTan~Jed to be paid from that account by an agreement made with that bank, sucil per~son shall be cleerr1ed to have com miittecl an offence pun ishabie vvith imprisonment 3S prescribed erein subject to the conditions mentioned in clauses (a),· (b) and

(c) of tile pro.riso. Section 3 of the Act defmes the "banker' to include any person acting as a banke1· and any post office sav~ngs bank.:Sectfon 72 of the ~~ct provides that a cheque must, in order to char·qe the cJrawer-, be p!-esented at the bank upon vvhicil it is d!-avvn before the relations between e d ~-.:wver and nis banker has been altered to the }Xejudice of e d1·awer.

9. The use of the words "a bank" and "the bank" in the section is an indicator of the intention of the le(jislature. The forme!- is an indirect (sic indefinite) artie e and tile latter is prefixcE::d by a direct (sic definite) artide. If the leg1islature intended to have the same meanings For "a bank" and "the bank", then~' was no cause or occasion for mentioning) it distinctly and differently loy using two different articies. It:s worth noticlng at the word "iJanker" in:Section 3 of the Act is prefixed by the indefinite article "a" and the wol-d "bank" where the cheque is intended to be presented under Section 138 is p1·efixecl by the definite a de "the". The same section perrn[ts a person to is~::.ue a cheque on an account n1aintained by hirn with "a banf(' and Cri.M.C.i\Jo.1056/2011 8t c:onnec~ed matters Page 18 of.n makes hinl !:able for chnn!nal prosecution if it is returned by "the bank" unpaid, The payment of the cheque is contemplated by "the bank'' meaning thel-e!Jy where e person issu~ng the cheque has c:il account. "Then is the word used before nouns, lrvith a spec fil[9] or particularising effect as Joposed to the indefin~te or generaiising fo1Te of "a" 01- '''an". it determines what particulat- tiling is meant; that is, what particular thing we are to asstJme to be meant. '''The" is always mentioned to denote a particularthing O!~ a per::-:on. "Tile'' vvouid, therefore, refer irnpiicitiy to a specified ba:nk and not any bank. "The bank" -eferred to:n clause (a) to the proviso to Sect~ on 138 of the Act would mean the drawee bank Oil vvhich the cheque is dravvn and not all banks v\lilere the d1eque is presented for collection including the bank of the payee, in whose favour e cheque is issued.

10. ~t howevei-. does not mean[1] that the cheque is always to be presented to the drawer's bank on whkh the ci1eque is issued. The payee of tile cheque has the option to pn::sent the cheque in any bc:lillk including the collecting bank where he has his account but to attract the criminal liabllitv of tl~;e drawer of the cheque such co llecti nq bank is obliged to __rQ.D::sent the cheque in the drawee or pavee lJ.ank on which ithe cheque is drawn witllin the period of six months from the date on which it is sl1ovvn to have b~en issued........The:1or:-presentaUon of the cheque to tl1e dl-awee bank within the period specified )n the section would absolve e person issuing the cheque of his c:-iminal liability under Section 138 of the Act who shall otherwise nnay be ~iab~e to pay the cheque amount to the payee in a civil action initiated under t)~,;: lavv. A combined i"eadinq of Sectio_~ls 3 72 ancl 138 of the Act would leave no doubt in our mdnd tllat the lavv ·--·-- mandates the c_b_eque_ to _bi;;__Qt-esented at the bank on which it is drawn jf the drawer is to be held criminal!:i_jiable. Sudl presentation is Cr!.M.C.No,l056/2.011 & COil!lPcteci matters Page I[9] c,f.z[7] <1/) necessarily to be made -within six months at_ the bank on whjch tf1e clleQJ::Ls~ ~s drawn whether presentee! per··~onally or through another bank_t: _namelv, the collecting_bank of the QQ_'tee.''' (Emphasis Supplied)

21. Thou9h the decision in ish.ar lJ\1/oJ/s case (supra) has been rendered in e context limitation for presentaticn of a cl1eque, tile saicJ decision br~n~;~s -out in no uncertain terms that Section 138 of the Ni t\ct contemplates that 21 cheque is required to be pt-eSf'n for encasllment to the drawee Bank and ~hat the payee Bank, merely acts as an agent of the payec:/compla~na fol- the purposes ·~Jf presenting the cileque in questir:Hii fol- enc:ashrner1t to t!1e drawee Bank. !" LL, T!~JUS, tl1e 2nd act to which the Suprerr1e Court referred to in Bhaskararr's case as one of the 5 vvhich constitutes th~ offence under Section 138 of e W\n A.ct vvas the presentation of thl::' cheque e drawee bank an j needless to state the 3~d act wh cJ[1] co:1shtutes an ~ngred\ent of the offence is the return of the cheque unpaid by th~:: drawee bank and thus it becornes crystal clear that the:zn;:~ and 31 -d act constituting the offence vvould relate to only one place i,e. tile p!ace ''1!!lere tile drawee bank is located.

23. These are my humble ~reasons to lloid at the observations in jJa':-as 15 and 16 have to be read as an orbiter and thus tile 5 acts conten~ll,c)lated as constitutin~~ the offence are cap;;;1ble of being pe rmed not in.[5] but only in 4 places and since deposit of the eque with the payee h-'-'l[/'jr "lOt-:=!•n ·-r--!- r.o·nt-or"lpi 0 •J-ocl ~.c -,,-- ingr·""G~ipq·'-,-,+ <-j~a }...JOl 1'\.. ~ r L)J r,J~.. ~.. '~,[1] L'-'• l: ic ~-·--- 1 Ow~ olai I! I! c II~-~ ~l Vii L I"offence, the place vvilei~e the payee nk is located \NOt!ld be Crl.rVJ.CNo.1056/2011 8.•_ cor,nected rnaeers Page:m cf ll' ?/b irrelevant for pel usc:">::; of deternnlrdnQI jurisdiction of U1·e criminal court.

24. It is settled lavv that a decision is an authority for the point it decides and not what can be logically deduced therefr-om and the ~-atio of a decision has to be;gathered with reference to tlv:: facts of a ca:'::e and ~just highlight only one decision of the Suprerne Court being the decision reported as Dhod/7a lfo_u5!_? v 5.:Klj~(2006) 9 SCC 41.

25. The matte1- regarding jl.n-isdiction can also be decided vvith reference to Section 6,:3e on 7, Sect~on 64 and Section 72 of the Nl i\ct.

26. The relevant ootTion of Section 6, Section 7 and C:actJ'Oil h[4] (Yc r,'r /-:..\~·)- ···.n,--l c.:er-·'-J' 1!-· 7'" ·O· f ·ti~e N·. ~ jJ rt 11-eadc ar· -"---·- v _,J •.1.. Lc. O• 1,..[1] -'-·-Ll~..,,,,!._,I, I \_,..::>..:> ·under:-- Section 6. Clleque: - A "cheque" is a biH of exchange drawn on a spec ed banker· and not expressed to be payable· otflen/\fise than on demand and it ~~-·~cludes the electronic image of a truncated cheque and a cheque in the electronic form. )( )( )( Section 7. The maker of.a bill of exchange or Cheque is cal1ed the "clravver"; the per-son thereby d!i-ected to pay is called tl1e "Dravvee". )( )( )( Section 64. Presentment for payment. (l)]Pro1T1issory nc,tes-., biUs of exchange and cheques must i~Je present~ed for payment to the maker, acceoto,- or drawee· ther-eof respe(:tively, by or on beh~lf of the holder as hereinafter provided. In c!~efault of such[1] pr~esentment the Cri.!Vl.C.i'Jo.1056/2011 81 con,lecteci matters F'ag;:~:21 of 11 other par~ties thereto are rliJt Hable thereon to such holder...,.... )( )( )( Section 72. Subject e provisions of section 84 a. cheque rnust, 11~1 o er to charge the drawer, be pi-esented at e bank upon which it is drawn before the relation between the drawer and his banker~ has been a~teredl to the prejudice of the drawer.

27. t, co-joint !-eaciing of Sections 6, 7, 64 and 72 as also of Section 138 of tile r011 i\ct bdngs out that in order to attract penal provisions of Section -13B of e N~ Act a cheque !:3 required to toe presented fo1- encashnnent to the drawee Bank and that the payee Bank acts merely as an agent of the payee/complainant for- the purposes of presenting the cheque in question to the dravvee Bank. T~1e necessary corollary thereof is tt1at no pa cause of action for tile offence punishable under Sectlorlr 138 of the Nil f-\ct arises in the Court within the ocal l!mits wh~ch the co~iectiing Bank of the complaijnant.e. payee Bank is situated and thus saic Court has no jurisclict!on to try a con'lplaint under Sectior 138 of the 1\11 Act filecJ by the COiTqJlainant.

28. This takes me to the consid.er-a'don of second questio,-, involved !n the pres:::=:nt case i.. e. \ivhether the court vvith!r; the local liimits oF which the place from where the complainant llad sent a notice contemplated under pmvisc I (b) appende(j to Section 138 of the ~H i\ct ls situated has the jurisdiction to try a complaint filed under Section 138 of the NlAct. Ci·i.IV[1].C.I'Jo.1056/20ll g, con "~·.-t:::d '"~3tt2rs Pc.1ge.2.[2] o·F 27

29. ! have alreaciy noted the observations maole by the Supreme Court in ec[9]./7askaran's case (supra) in the foregoing paras and would highlight th,;:rt in p~aras 17 to 23 th::: Supreme Court has reflected u ll tile nmitation VJithLi which the rnotice has to be Ql n to the accused. The Supreme Court was considerin[9] tile expression 'giving a notice' in proviso ( ) to Section 1313 of the Ni 1\ct, ·with reference to the 15 clays' time contemplated th1en by 'Nhich the requisite notice:-ad to be served, which time is novJ 3C days.

30. Another decision of the Supr,eme Court, reported as, (2009) 1 sec 720 /-/arman Electronics Private Limited !I National Panasonic india Private;_jn7ited is worth noting on the subject.

31. In Hannan's case ·(supra) the question which had arisen before the Supreme Court wa[5] precisely tj1e.same,question which arises for conslclleration in e present. petition i.e. whether e court witlhit""g e local limits of which the· place from wl1en:: the compl,aiil1cHlt i1ad sent a notlce contemplateol under pmviso (b) to Section 138 of the Ni i\ct is situated has the jur"iscJiction to try a complaint filed under Section 138 of the f\! <-\ct Answer~n~jj e aforesaid question tn tl'le negative, the St__:'preme Cou observed as under:- /[12....,The o,l!y question, erefore, vvilicl[1] arises for COi~is!:::ie!-ation is at as to vvhether sending of notice from Delhi itself would give rise to a cause of action for takinr2J corgnizance under the Negotiable l s~Tuments A1ct. Crl.f\ll.C.No.1056/20E 2(:::ollnec't:d matters Page:n of27

13. It is one thing to say tflat sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For t!1e pur-pose of pnJving its case that the accused had committed an offence under Section 138 of the Negotiable ~nstruments Act the ingredients thereof are required to be proved. VVhat would constitute an offence is stated i11 e main prov,ISIJOn. The proviso appended ereto, however, imposes certain further conditions vvhich are required to be fulfilled before cognizancre:' of e offence can be taken. lf the ingredients for constitution of the. offence Iaid down in provisos {a), (b) and! (c) appended to Section l~W uF the G!egJotiable instruments,L,ct are intended to be applied in favour of the accused, therE~ cannot be any dourJt that receipt of a notice wouild u mateiy 9~ve rise to the cause of action for filing a complaint. ~~s it is only on receipt of the notice that the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore rnust be read tog1ether. issuance of notice wot.Jid not by itself gjive rise to a cause of action but corT1munication of the notice would. "."....For constitution of an offence under Section 138 of tile t\ct the notice rrnust be received by the accused. lt may be oleemeol to llave been received in certain situations. The V\torcl "communicate'' inter ali::?J rneans "to make l/nOWf[1] il~·fo r-·-n "OllV0 y at(~·rr ' J,,,l J ••,L \._..: F ' - - " 20...... f-\ court derives a jurisdiction only when the cause of action arose with~n its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused.,0, distinction must a!so be borne in mind ioetw.een the ingredient an offence and commission a par~t;<he offence" }i~Jhi!~ issuance of a ilOtice by the holcl~r of_i:l__D~e Crl.M.C.I\Io.1056/2011 & connected matters Page 24 of 2l instrun'lent is necessarY.,__~_C;:'rv~ce thereof is also impet-ative. Only on a servrice of such notice and failure on tile part of e accused to pay the demanded amount vvithin a period of 15 days thereafter; tile comrnission of an offence completes. Givinq of qoUce therefore, cannot have anv~__pl-eceqent oyer 1~he servict[2]. It is only from that vievv of tlle matter that in Daln7ia Ce;nent (B!;arat) Ltd v. Galaxy Tr:::tders & Agencies Ltd emphasis l1as been laid on service of notice_,,. (Einphasis Supplied)

32. At a first blus:-1 readinQi of tlle decisions of the Suprerne,---....... r·-·t.''"""~ L:Y r~li......., c-! -·~~..-.~-·~,-.-,. --.. d L/ r··-,..-,:-;. r-·-/.--- r--.-~ c r c· (,.c.· •I.',,-.,.,~.~ \ ~-r,.· rr"Y"" - \..._, u uI I I I !:?_!_i G ·--' ·<C~i__i-"}_!_1__:J n / !'aI t',I I G / f,':::; -~ Ci ~ e ~· -...J up 1. (~ J IL ' ' I a y strike to the readei- that there is a co ict between the two decisions,inasmuch c's in Bhask?Jrads case (supra) it was held that the expression 'giving of notice' occurring rn i proviso (b) to Section 138 of e N~ J\ct rnea11s 'sending ot notice/ whereas in l-!arn?an's C35e (supra) it \vas llel~::l that the said expressioil means 'rece~~ot ofnotice~

33. A careful r-eading of the tvvo decisions shovvs that the-e is no conflict betvveen the said clr::-cisions inasmuch as they have been rendereci in differe~lt contexts. The decision 1n Bhask_pJads case (supra) was rendered in the context Jf stal-ting point of 1in:itation pe!-iod of 15 days prescr~bed in proviso (b) to Section 133 of the Ni Act and ~t was in that context i.e. the context of limitation that it was held by the Supreme Court t:l3t the expn:-ssiion giving of notice·' occurring in proviso (h) to Sect~on[1] 1.38 of the Ni Act means 'sending or notice 7, The decision in /-Iannan's case (suprCi) was render·ed in trv::' context of caus,e of action for filh1g a complaint under Section 138 f'-jH ~~~ct vv~thin jurisdic:tjon of a "ri•-t-'I cI-~ I'::1,.. c0 IJ,_,_.:::> ~---, c·: i,-~ -~·I-,;:1 t (" () nto\-'--;-t lf'J.,,- !roeld io·\/ th···e fJ '-'' l - L L,._. ' ~~ ~.\.~ ll. ll ~...,..,,.. -·._ '. -'C.. /\ L il !J CJ,2'1 iJ ' I j' t l C:!.IVl C.No.1'J56/2JH[1] 8t COJF,<:C~ed mc;tters ?age Z[5] of Zl Supreme c:::ourt at the e.>qJression g'ivlng of notice' occu n-i ng J '11 11. '1~(\'\11 t '::. ("': l I j'../, '-' -· '·-' (b) to Se.. on 138 of the Ni iJ,ct means 'receipt olnot/ce '.

34. Now, same expression can have different meanings in different context as held by·· trle Supreme Court in the decision reported as fl1alik Lal !}J_gju;ndar v Gourar.Qf!_ Chandra Dey (20C)4) 12 SCC 3 vvherein it was observed that a word occ:'.HTi:-:g in a ry provision can have different rneaningrs in d1ffere coi-ltext with~n tlh:r:::~ sar'le statute.:JS _). Thus,. the inevitable conclusion would t1e that the 4th act conternplateo: as · an ingrreolient of the offence 315 iligrilightecl in Bhaslcqran's cas(~=::,i.e. 'giving notice in writi7g to tf7e dra Wr::!F of cheque' den7ancfi/7g payrnent of tlJe cheqiJe an7ount for purposes of limitation would have a meaning;315 explained in Bhaskara12's casr=: and for purposes of jurisdiction would have a meaning! as explained in ls/7ar AlfQJ(S case (supra),

36. Before conciuc!ing I vvou!d D·e failing not to lodge a caveat. Witll electronic bankinrg and facility pa,yab~e at par of clearance provided by bankers and especially.n rnetropolitan cities, ·vvhere cheques are cleared by not beirg presented to the dravvee bank 1 Dut at nodal branches of tre concerned banks, u~:e subject matter of juhsdiction me::y have to be decidec keeping in vl:evv that the drawee bar.k ha.s created an agency w!lere the clleque in question,s tt-ansrnitted for ciecv,;:nJCe and e s L \Nher·:=: tine c1earance tal<es place vvouid en arDuab 1 y IJecorne the place vvher'e Cri.M.C.No.1056/2J11 8,:~on;12cted:-il<Jtters iJage 2.15 of 2.[7] I I: l': ~: ~: ii[' '~' I·~ ~.~ ~I ~.' '·,[1] t<i I p~ if;:rt: Jl ~ ·. ';::. i f ~I t~l:\ ··1·'. ~~I: ill IJ I li ~, I!;I '. r'l·: f): (!i ~:-: ~ J the cheque woui be requi1-ec[1] to be treate-d as presented to 'the bank' Le..e cli-awee bardc B, in such circumstances, properly constituted p1ieadings have to be found in a complaint and loclging the caveat i leave it at tllat for the debate to be pr;_::,perly argued in an appropriate case v1ith the necessary r-eie"Jant plead~rgJs.

37. ~ hold that c;n the pleadings in the complaint(s), no part of cause of c<tiori can be.said to have accrued to the conrlp!ainant [J:.:_:lhi: that tile notice demanding payment vlfas, 'posted r;~~ Deihl and U1at e cheque vvas deposi~ec \N the payee bc:~~-,,k at Delhi would not constitute "ti[1] lt:: 2~ contemplated as ing:redients an offence punishable u:--t:ier Section 138 ~·~! and thus I dispose of the petitions quasl1ing the irnpugned order(s) elated 14.. 2.. 2011 and di(2Ct U1e learned /'j\C M to return the compiaint(s) to, 2 respondents for: filing[1] · in a Court having territo,~ia: judsdiction. 38.. No costs.. SEPTEMBER 21, 20Jl[1] !Tlm Cri.M.C.No.1056/2011 [!i c:o~'nected matte1·s ·-r--:··,.~:__.': (PHADEEP NJ-\~\IDRAjOG) JUDGE Page Z[7] c.f 27