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

2. ~t may be noted at the outset at after the cornp!aints were filed, the respondent company filed a suit bearinq No.SS0/2010 in which petitioner No.1 was imp~eaded as th~~ defendant before the High Court of Bombay pray~ng for 3 decree to be passed in the prinCiipa~ sum for which the 4:5 cheques forming the subject-·matter of the aforesaid ·complaints were issued. ~n the plaint, jurisdiction of the Courts at Mumbai was pleaded on e averment that the agreement pursuant vvhereto tile cheques were issued was executed at Mumbai as a!so that the cheques ~n question were drawn and issued at Mumbad Cri.I\II.C.r~o 1056/2011 g_ ccrnecteC: matJ:ers ) '

3. Taking cognizance of the complaints, the learned l'\Cf\!JM sumrnonec[1] e petitioners to face trial for an offen.:e punishable under Section 138 of the 1\J.L Act.

4. Upon service of the summons, the petitioners filed application(s) under Section 177 Cr.P.C. inter-ana statir1g that the courts at Delhi have no ju1~isdiction to take cognizance of the complaints· and prayed that tre complaints be returned to the respondent to be filed in u-e court of competent jurisdictiC''l. Together with the sa1d application(s), petitioners 2 to 7 filed app1ication(s) seeking exemption for personal appear·ance before the Cour·:. Dismissing the application(s)::;eeking exernpbon fror.n personal appearance and keeping pending, fer consideration, appiication(s) filed under Section 177 Cr.P.C:. vide order elated 25.05.2010 e learned ACM~~ issued bailable warrants against petitioners 2 to 7'.

5. Aggrieved by tile order dated 25.05.2010, petitioners 2 to 7 filed petition(s) under Section 482 Cr.P.. C:. before this Court, which petitions were dismissed vide order dated 23.09.2010. i\ggrieved thereto, petitioners filed petitions seeking Special Leave -~o Appeal befcne the Supreme Court which were disposed of vide orcler: dated 14.1.2011 with d direction to the learned,6.C~JJM t!1at applications filed unde' Section 177 Cr.P.C. would be disr~,osed of within 2 weeks.

6. Vide Ol"cler dated 14.02.2011 the learnecl 1\C~vHvi disn1issed the application(s) under· Section 177 Cr.P.C. filec by the petitioners on the ground In view of the dicturr of law ~aid down by the Supreme Cou1"t in the decision Crl M C. No 1056/2011 &cor:nccted matte1·s Page 8 of z~~· \ reported as (2004) 7 SCC 338 / 1,!dalat Prasad 1/ Roop La{ Jindal once the Magist1rate hco1S taken cognizance of 3 complaint he has no power return the same to th[2] complainant with a direction that the.same be filed in a court of competent jurisdiction.

7. Aggrieved by the order dated 14.02.2011 passed by the !earned ~~CIVJf\~, the petitioners have fiied the above;captioned p12tition(s) under Section 482 Cr.P.C. ~-equiring this Court to hold that cc1urts at Delil~ have no jurisdiction to take cognizance of the complaints in question and seek dil-ections to the learned ACMI~ to retunrJ the same for filing befo1-e the Coul-t of Competentjul-isdiction.

8. It is the case of the petitioners that the cheques m question were drawn at Murnbai. The drawee bank is a·,= Mumbai, notice issued by the respondent to the petitione.company was 1-eceived at Mumbai and thus merely because the respondent posted the notice from De~hi and deposited the cheque with its bank at Delhi vvould not confetjurisdiction on Courts i1~. Delhi.

9. Tile issue llas to t1e debated Nitll refel-ence to Section 138 of the NI t\ct an1j the applicable provisions of the CodE: of Criminal Procedure i.e. Sections 177, 178 a 179 of thEl Code of CriiTtinal Procedure.

10. ~n the decisiton reported as 1999 (7) SCC 51C I(Bhaskaran \Is. Sha·nl;_ara))__ V._?_io'f]_van Balan S Atnt~.. the Supre.me Court. has opined, afte1- considering Sections 178 to Section 179 of the Code of Ci-ir:nina~ Procedure, that ar, Cri.M.C.I\Io.1056/2011 P-< connec.~·":'d mal:ters Page 9 of:z.: \5 offence may be completed in different localities and thus can be tried in any Court lla, ng jurisdiction over saicl localities. To put it pithily, 1in relation to territorial jurisdiction, qua an offence, !avv;-ecognizes more than 1 court having territorial jurisdiction and the issue of territorial jurisdiction would have to be decided with reference to whether a part of an offence '\Nas committed within the territorial jur-isdiction of a court. The issue ~s no longer res integr-a and r just neecl to note the decision of the Supreme·. Court in. KBhaskaran's case (supra} and highli-ght that the aforesaid is to be cuiied out fro:n paras 11 and 12 of the said decision.

11. The nE~xt logical question \Mould be, vvhat are the contours of Section 138 of the Nl.l\ct pertaining to acts to be performed in relation to an offence contemplated by the said Section'? it hardly be re-ernphasized that It are acts of commission or omission which constitute offences, with or' without the requisite rnens rea, depending upon V11i~1ether the offence is an absolute offence or not.

12. Let me thus note Section 13El, r'l,ll fl,ct which reads as under:- Where any clleq ue dr-awn loy a person on 2 n accourlt: maintained by him with a banker for payment of any amount of ~~noney to another person from out of that account for the dischar~Je, in whole or in pal-t, of any debt or other liability, is J"eturned by the bank unpaid, either because of tile arnount of money standing.to the credit of that account is insufficient to l1onour the cheque or that it exceeds the amount arranged to be paid from that account by an, Cri.IVLC.No.1056/2011 8t connected matters agreement made with that bank, such pet-son shall be deemed to have cornmitted an offence and shall without prejud~~c:e to any other provisions of this Act, be punished w~th imprisonment for a term wh~ch may extend to two year, or with fine which may extend to tvvice the amount of e cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) The cheque has been pr-esented to the bank within a period of six months nn the date on which it is drawn or withln the period of its validity, whichever is earlier, (b) The payee or the holder- Induce course of the cheque,, as the case may be,, ·makes a demand for the payment of the said amount of money by giving (!1 notice, in writing, to the drawer, of the cheque, within thirty days of the receipt of information by him from the bank regard~ng the return of the cheques as unpaid, and

(c) The dravver of such cheque fails to make the payment of the said amount·: of money to the payee or, as the case rnay be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice: · ( Explanation: For the purpose of this section, "debt or other liabiiity" means a legally. enforceable debt or other liab~llity,

13. In Bhaskaran's case (supra) the Supreme Court had an occasion to cleal with the issue of territorial jUI-isdiction in relation to Section 138 of the NI /\ct, and of necessity,. the.• discussion required the Supreme Court to ilden,bfy the various acts of commission and orrdssion which constituted the offence punishable under Section 138 of the ~J! Act and suffice would it be ·to highiigllt H1at in para 14 of the c:-J.IVI.C.~~o.l056/2Dll l?t connected mact·e:-s Page 11 of27 \ f decision, th'=' Supreme Court high~ighted that there are 5 acts which are the components of the offence punishablE-· under Section 138 of the Nl Act and ~ re-produce the samE from para 1·4 o'f the decision of the Supreme Court They read as under:-

(i) drawinq of the cheque,

(ii) presentation of the cheque to the ballk,

(iii) returning the cheque unpaid by the drawee bank,

(iv) giving notice in vvriting to the drawer of the cheque, demanding payrnent of the cheque annount,

(v) failur-e of the drawer to make payment within 15 days.

14. After holding that 5 acts wou~ol constitute the components of an offence under Sect~on 138 of the N~ Act, in paras 15 and 16 the Supreme c:ourt observed as under:-

16. Thus it is c!ear, if the five diffel-ent acts \1\lere: done in five different localities any one of the cou,-ts exercising: jurisdiction in one of the five iocal areas can become the place of trial for the offence under Section '138 e Act, ln other. \Nords, the com[1]:J!iainant can choose any one of Crl.M.C.l\lo.l056/2.0E &. connected matter~ Pag[2] 12 Gf ~?..[7] those courts having jurisdiction over any one of the local areas within the teiTitorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle ·exercise to raise jurisdictional question regc:Hding the offence under Section 138 of th[1]::,1\ct." (Ernphasls Supplied) \~

15. On the issue of sen1ice of notice required to be given by the complainant to the accu:.;ed,. the Supreme Court observed as under:- "17. The more important poi to be dedded in this case is whether the cause of action ~'~~as arisen at all as the notice sent by the complainant to the accusec! \Nas returned as '(unclaimed 11 • The conditions 1oertaining to the notice to be given to the drawer, have been formui<:J~ted and incorporated in clauses (_b) to {c) of tile proviso to Section 138 of the /\ct. The said clauses ar-e extracted below::

18. On the part of the pay.ee he has to make a demand by "giving a nobcel'!' in wribng. ~f that was the only r-equirement to complete the offence on the failure of tile drawer to pay the cheque amount within 15 days from the date of such ",givin~:J'', the travai~s the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be vvith~n 15 days "of the receipt" of the said notice. ~t is( therefote( clear that. "gi ng notice'( in the context is not the same as receipt of notice. Giving is a process of vvhicll receipt is t!le accomplishment. ~t is for tile payee to perform the former process by senclJ:n[9] e notice to the drawer at the correct address. Cri.fiii.C.No.1056/2011 6t connected:;1atters Page B ·Jf'1.[1]

20. If a strict interpretabon ~s given that the drawer- should have actuaHy received the notke for the period of 15 days to start ru'nning no matter that the payee senf the notice on the correct address,. a trickster cheque drawer wou,~d get the premium to avoid rec:ei\dng the not~ce by different strategies and he could escape from the legal consequences of Section 138 of the Act. ~t must be borne in mind that the court shou~d not adopt an interpretation which helps a dishonest evader and clips an honest payee as that wou~d defeat the very legislative measr,Jre. 21.....The context envisaged in Section 138 of the Act invites a liberal intE:rpl-etation for the person who has the statutory obligation to give notice because he is presum to be the loser in the transaction and it is for h.is interest the very provision is made by the leG1islature. The words in clause (b) of the proviso to Section 13B of tt1e 1;ct sllow tl•at the payee has the statutory obligation to "make a demancl" by QJiving noticE:. The thrust ~~~ the ciause is on the need to "make a demand". It is only the nnode for making such demand which the legis!atuJe has prescribed. A payee can send the notice for doinQI his part for giving the notice Once it is despatched his part is over and the next depends on vvhatthe sendee does.

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 f'-larcharan Singh v. Sh/vrani[2] and jagdish Singh v. Natthu Singh[3]).

23. Hc·r-e t:he notice is returned as und.aimed and not as r·efusecL VVil! thE:re any significant difference betvveen the so far as the presumption of service is concerned? !n this cl Crl.lV!.C.I\Io.1056/2011 8t connec:t:Ecl matters Page 1L~ of 27 connection a reference to Sf:ction 27 of the General Clauses i\ct will be useful. The section reads thus:

24. No doubt Section 138 of tlhe Act does not require tllat the notice should be given only by "post". ~Jonethe!ess the phnc;ple incorporated in Section 27 (quoted above) can profitably be imported in a case where e sender has despatched the notice by rwst vvith the correct address written on it. Then it can be deemed to have been served on the sendee unless he p1~oves that it was not really served and that r1e was not respo:lsible for such non-service. A[1].ny otfler interp1~etation can leacl to a very tenuous position as the drawer of tile cheque vvho ~s liable to pay the amount would 1-esort to the str-ategy of subter-fuge by successfuHy avoiding the notice.

25. Thus, vvhen a notice is returned by the sendee as unclairned such date wou~d be the commencing date in reckoning the period of 15 days contemplatecl in clause (c) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice vvas brought to· his address. In the present case Ule accused d~d not even attempt to discharge t!1e lourden to rebut the afo1~esaid presumption." (En7phasis Supplied) 1~

16. Tile expressions: 'presentaticm of the cheque to the Bank' a.nd 'if the five dffi+Cerern.'" acts were done in tlve different localities any one of t!?e courts exercising jurisdiction in one of the five local areas can becorne the place of trial (o;- the o/~fence under Section 138 ol tlH:: Act' to he f"Lind ·,r-1 'J""r-'5 1., ·:~nr' 1~;:' 1-,-.c:ne(-·'-·l''e'\' ·I"' Fflh-,~t--.~,·"::1r·'r l) ___;j I l._J t Ct' ' CJI ~- _q~ 0. 1 J _l \J \,:-·._.·:1 -..- ·- -· l v " I } ~ ~ ~':::""~' C't,:2!_~\9..J..::2.L!.::; cas~~ (supra) have been understood by many to rnean that Crl.l\~ Cl\lo.1056/2011 B.t conrecteci:m,~:.ers Page 15 of;a the Court within local limits of vvhich e payee Bank i.e. the Bank when?. the complainant deposited the cheque is situated has the jurisdiction to the complaint unde'-. Section 138 of the Nl Act, and the understanding! appears to be fortified by the observations of the Supreme Court in paras 15 and 16 that if the 5 acts contemp~ated as thP ingredient of an offence under Secbon 138 of the ~H Act were done in 5 different loca! es, any one of the court exercising jurisdiction In any one the 5 local areas \Nould have jurisdiction.

17. But, it is appa[1],ent that the observations in para 15, and.16 are an obiter as it Is not 5 places where the 5 acts constituting an offence under Section 138 of the N~ Act can possibly be performed The actc; can be performed, as would be explained hereinafter, OllJIIy 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 vvilere the c!ravvee bank 1s located.

18. The second and the tl1ird a of the 5 listed by the Supreme Court, as constituting ~~ offence under Section 138 of tile Nl Act are: (a) presentation of the cheqw~ to the bank; and (b) returning the cheque::: unpaid by tile clr--awee bank.

19. The third act is the return of e cheque unpaid by the drawee bank anoi thus there )s no scope for any argument as to which bank is contemplated vvith reference to the said act. The second act pertains to the c:Kt of presentation of cheque to the band<. i l1igllllght tnat tilr::: twin words used are 'the bank. Cri.M.C.No.1056/20118t connected m2tters Page 16 of n

20. ~n the decision n2pct~-ted as 2001 (3) SCC 609 Shr/ !shar;IJ,//ov Stee/sLtd. l/.5, /avaswals Neco Ltd, a 3 Judge Bench of the Supreme Cou having as a member of the Bench the author of the judgwne in Bhaskaran's case (supra), dealt with and decided as to \1\fhat would be meant by 'the bank as mentiorned in Section 138 of the ~H Act 'Nas it the drawee bank or e payee bank? The Supreme Court answered the question in the following words:- ':2. (a) \Nhat is rnr,:=:a nt by, e bank" as mentioned in clause (a) of the proviso to Section

1.38 of the Negotiable !Instruments Act, 1881? (b) Does such bank mean the bank of the drawer of the cheque or the payee of the cheque?

(c) To which bank the cheque is to be presented for the [Q11rposes of attractinq the penal provisions of Section 138 of the.Act?, are the questions to be determined by this Court in is appeaL 7 ~t has Pi~ I_,n I"'Ot"lr'n~l a·c- to l~n- ke an ~ -·:...:.,__ • 1'.. ··=- '~· \._~=t;. i_,:_. d.', ! offence.under- Section 138 of the Act, it is mandatory that the cheque is presented to "the bank" within a period of six months from the date on whkr11 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 spedfied therein. When a postdated cheque is written or drawn, it is only a bill of exchang]e. The post-dated cheque become a cheque under the A.ct on the date which is written on the said cheque ancl the six months~. CrLM.C.f\lo.1056/2011 8t C:Jilnecteci;11.'1':ter~ ' / period has to be reckoned, for the purposes of Section 138 of the Act/ frorn the said date.

8. Section 138 provides at vvhere any cheque drawn by a person on an account maintained bv,him with a "banke!JI for payment of any amount of money to another person from out of that account for the discharge, in whoie or in part of any debt or other liability, is returned by ''the bank" unpaid, either becau::;e of the amount of money standing to the crE:d!~ of that account is insufficient.to l1onour the cheque or that it exceeds the amount arrar1~1ed to be paid frorn that account by an agreement made w~th that bank, such person shall be deen1ed to !lave commiitted an offence punishable vvith imprisonrnent as prescribed tl~1!erein subject to the conditions rnentioned in clauses (a), (b) and

(c) of the proviso. Section 3 e Act defines the "banker/ to include any person acting as a banker and any post office savings bank. Sectton 72 of the Act provides that a cheque must, in order to charge the drawer~., be presented at the bank upon which it is d!~awn before the relations between the d1~awer and his banker has been altered to the pi~ejudice of thE? drawer.

9. The use of the \Nords "a ban~(' and "the bank" in the section is an indicator of the intent~on of the leqis!ature. The former is an indirect (s/c indefinite) article and the ~atter is prefixed by a direct (sic definite) artide. ~f the leg1is~ature 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 artides. It is worth noticing that the word "banker" in Section 3 of the Act is prefixed by the indefinite article "a" ancl the word "bank" where the cheque is intended to be presented under Section 138 is p1~efixecl by the definite a de '·'the". The same section permits a person to is~:;ue a cheque on an account illcdntained by hirn w "a bank" and Cri.M.C.No.1056/2011 8t connected matters P2gel[8] of n makes him liable for crin~~ nal prosecution if it is returned by "the bank" unpa~d. The payment of the cheque is· contemplated by "the bank" meaning thereby where e person issu~ng[1] the cheque has an account. "The" is the word used before nouns/ vvith a specifying or particularising effect as opposed to the indefinite or genera~ising for-ce of "alf or '·'an[1] '. ~t determines what particular thing is meant; that is, what particular thing we are to assume to be meant. ''TheT! i.s always mentioned to denote a particular thing or a person. "The'' would, therefore, refer implicitly to a specified bank and not any bank. liThe bank" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee bank on which the ell ue is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.

10. it, however, does not mean that the cheque is always to be presented to the drawer's bank on whiich the cheque is issued. e payee of the cheque has the option to pn~sent the cheque in any bC111lk including the coHecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged t~Ji_JQt-esent the cheque in the drawee or pavee L)ank on which the cheque is drawn.within the period of six months from the date on whicll it is shown to have bE~en issued.:......The non-presentation of the cheque to the drawee bank within U1e period specified in the section would absolve the person issuing the cheque of his criminal !iabHity under Section 138 of the Act, who shall otherwise may be ~iab~e to pay the cheque amount to the payee in a civil action initiated under the ~avv. A COITlbined readin<L:_of Sections 3 72 and 138 of the Act would leave no doubt in m:Jr mind that the Ia\/\~ mandates tile c.b_eque __to _}o[1];:_presented at the bank on which it is drawn if the d1~awer is to be held <~riminally liable. Such presentation is Cri.M.C.No.1056/2011 8t connected matters Page 19 C)f 21 necessar-ily to be made within six month1s at the bani< on which tile cheque rs drawn whether presented personally or thl-ouqh another bank.l namelv, the collecting bc!nk _Qf_fu_~_Q_g_yee.''' (Empl7asis Supplied)

21. Thou~Jh the decision in ish;_~·r /J\1/oJ/s case (supra) has been rendered in the context of limitation for presentation of a cheque, the said decision brings out in no uncertai.n terms that Section 138 of the 1\U t"ct contemplates that a cheque is required to be presented for encasllment to the drawee Bank and that the payee Bank, merely acts as an agent of the payee/complainant for the purposes of p1resenting the cheque in question fol- encashment to th'e drawee Bank.;--, <-.L. Tllus, tl1e 2nd act to whlcll the Supreme Court referred to in Bl7askaran's case as one of e:5 ·which constitutes th~~ offence under Section 138 of the ~H Act vvas the presentation of the cheque e drawee bank and needless to state the 3:d act whicJ[1] consbtutes an ~ngred~ent of tile offence Is the return of the cheque unpaid by the dl-awee bank and t!lus it becorntes crystal clear that the 2nj and 3rd act constituting the offence 11\IOlJiol relate to only one place l.e. the p!ace V\!!lere the drawee bank is located.

23. These are rny humble (easons to hold thc-;Jt the observations in paras 15 and 16· have to be read as an orbiter and thus the 5 acts conten"!l_plated as constituting the offence are cap~1ble of being perfomned not in.[5] but only in 4 places and since d.eposit of thf:: cheque with the payee bank is not an act conternplated as an in.g1redient of the offence, the p)lace vvhe.re the oaveE: b2dlk is lo-cated \IV.OU!d be I J ' Crl.M.C.No.1056/2011 s_,_ ccnnected mat-::ers P'age;w of 27' !r,-eiP' I~ r- t• ·f,r·--,,- ('·,I rr 0·'-~(C>C •, '-- v a I -'I rJ !._., 1J -· -· _, criminal court. of detennir1r~ng jurisdiction of the. 24. It rs settled law that a decisron is an authority for the point it decides and not what can be logically deduced therefr-om and the 1-atio of a decision has to be <gathere.::J with reference to the facts of a ca:'::e and ~just highHght only one decision of the Supreme Court being the decision reported as Dhodha lfouse II 5)\._l~fainqi (2006) 9 SCC 41.

25. with The matter regarding jurisdiction can also be decided reference to Section- 6,:3ection 7, Sect~on 64 and Section 72 of the Nl Act.

26. The relevant portion of Section 6, Section 7 and Section 64 of Nr;r:\ct r:;,,·,,j Section 72 of the N~ Act reads as ·under:- Section 6. Cheque: - A "cl-leque" is a biH of exchange dl-awn on a specified ltJianker and not expressed to be payable otherwise than on demand and it w~ciudes the electronic image of a truncated c1-1eque and a cheque in the electronic fol'm. )( )( )( Section 7. The maker of a bill of exchange or Cheque is called the "drawer"; the person thereby di1-ect·2d to pay is called the "Drawee". )( )( )( Section 64. Presentment fo1- payment. (l)]Pron··~issory notes, bills of exchange and cheques rnust be presented for payment to U1e maker, accepto:- or drawee tllereof respectively, by 01- on behalf ot the holder as hereinafter provided. In default of su:::h[1] presentrnent, the Crl.!Vl.Cf'\o 1056/2.011 6, corlnecteci m,<'itels Page 2J~ of 2J' other parties thel-eto a1-e nut ~iable thereon to such holder........ X )( X Section 72. Subject to e provisions of section B[4] a cheque must ir:1 order to charge the drawer, be presented at the bank upon which it is drawn before the relatio:l lbetvveen the drawer and his banke1~ has been a~tereol to the prejudice of the drawer.

27. A co-joint reading of Sections 6, 7, 64 and 72 as a~so of Section 138 of the 1\i.l 1-\ct brings out tflat in order to attract penal pmvisions of Section 138 of the N~ Act a cheque i.[3] required to 1oe prese1-1ted for cashment to the drawee Bank and that the payee Bank acts mere~y as an agent o:F the payee/complainant for the purposes of presenting the cheque in question to the d!-avvee Bank. The necessary col-ollary the!-eof is "that no pa of cause of action for the offence punishable under Section[1] 13a of the N~ Act arises in the Court within the local limits of wh~ch the coHectiing Bank of the complainant i.e. payee Bank is situated and thus saic CoUI-t has no jurisclictio'n to try a COITlpiaint under Sectior 138 of the 1\11 t-\ct filed by the complainant.

28. This takes me to the consic:e!-atlon of second questior: involved 1n the present case i.e. whether the court w!thir. the local liirnits of which the place from where thE complainant had sent a notice c:ontennplated under proviso (b) appended to Section 138 of the ~JI 1-\ct is situated has the jurisdiction to try acomplaint fiied under Section 138 of thE NIAct. Crl.iVl.c.f\lo.1056/2.011 &comY~ct::od <'l3tterc; Pr=J.ge 2,[2] of 27

29. I have already noted the observations IYiade by tr.,e Supreme Court in Bhaskaran's case (supra) in the foregoin·g paras and would highlight that in paras 17 to 23 th'e Supreme Court has reflected upon the limitation withi -l which the notice has to be ghren to the accused. Th[1]:: Supreme Cour-t was considerin[9] the expression 'giving ('j notice' in proviso (t;) to Section 13B of the N~ p,ct, with reference to the 15 days' time contemplated then by which the requisite notice had to be served, which time is now 30 days.

30. Another decision of tile Supreme Court, reported as. (2009) 1 SC:C 720 Hannan Electronics Private Limited v National Panasonic India Private l lin/ted is worth noting on the subject.

31. In Hannan's case (supra) the question which had arisen before the Supreme Court was precisely t~1e same,question which arises for consideration in the present petition i.e. vvhether the court within[1] the ioca! limits of which· the place from \1\rhere the compla1i11ant had sent a notice· contemplated under proviso (b) to Section 138 of the Ni f[1].ct. is situated has tile jurisdiction to try a complaint filed under Section 138 of tile N~ ~~ct. Answer~n~~J tfne aforesaid question in tile negative, the Supreme Court observed as under:- "12......The only question.. tilerefm·e, vvllich arises for consideration is at as to whether sending of notice from Delhi it~;elf would give rise to a cause of action for takin1~J cognizance under tile Negotiable !nstr·uments,IJ\ct Cr-l.rVJ.C.No.1056/20E 8c connect,=:d matters Page 23 vf 21

13. It is one thing to say that sending of a notice is one of the ing1redients for maintaiining the complaint but it is another thing to say that dishonour of a cheque by itse!f constitutes an offence. For the pui-pose of proving its case that tfle accused had comm~tted an offence under Section 138 of the Negotiable ~nstruments Act, the ingredients thereof are requ~red to be proved. V\lhat would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions wlli.ch are required to be fulfilled before cognizance of e offence can be taken. If the ingredients for constitution of the offence Iaid down in provisos (a) f (b) andl (c) appended to Section 1313 of the NegJotiable Instruments Act are intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice woulld ultimately rg~ve rise to the cause of action for filing a complaint. As 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 must be read together. ~ssuance of notice would not by itself qiive rise to a cause of action but communication of tile- notice would.........For constitution of an offence under Section 138 of the Act the notice must be re~eived by the accused. It may be deemed to have been received in certain situations. The \Nord "communicate'' inter alia means "to make known, infonTl, convey, etc". 20...... f-.\ court derives a jurisdiction only when the cause of action arose within its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind b~2tween Hie ingredient: of an offence and cornmission of a part;~:he offence. V\fihi!e.issuance of a notice by the hold~r of a negotiable Cri.M.CI\Io.1056/2011 & corlllected matters Page 2/l of 2.[7] '1 instrun(]ent is necessaryj__:;;~_rvke thereof is also imperative. Only on a service of such notice and failure on the part of tile,accused to pay the demanded arnount vvith~n a period of 15 days thereafter, the commission of an offence completes. Givinq of n_otice therefore, cannot have any_QI_ececjent over the serv~ce. ~t is on~y from that view of the n1atter that in Daln?ia Ce;nent (Bharat) Ltd v_ Galaxy Tr::::tders & Agencies Ltd emphasis has been laid on service of notice.. " (Ernphasis Supplied)

32. At a first blusf-: r<?adinQJ of tlle decisions of the Suprerne 1~U"'IJD-·t 1' fl DJ{I-1 c:,f---~1 r.:::•r;:::;rid J[1]..f:=Jt~n~;•/:~r.,,rc; r--:;c:ac \,. c,•:n·~·-·::. ';' (-f· n-·, ~ Y '-~~ I _f:___:_ G.._;, "~. C_!___!::::_-:...:.._....~l _ l C..I I / ··-<_:._!_.._; \.- Cl.._., C..,).._I ·U J'-' (.A.·......I I I 0 strike to the reader- that there is a conflict between the tvvo decisions inasmuch cs in Bhask{3ran's case (supra) it was. held that the exp1/ession 'g/1/ing of notlce' occurTing in proviso (b) to Section 138 of the hill Act means 'sending of notice' whereas in Hannan's ~a[2];e (supra) it vvas !1eld that. the said expression means' recei;ot ofnotice'.

33. A careful r-eading of the tvvo decisions shovvs that the~~e is no conflict i)etvveen the said decisions inasmuch as they have been t/endered in different contexts. TI~He decision m Bhaska_ran's case (supra) vvas rendered in the context of starting point of llrr:itation per~oc! of 15 days prescribed in · ptovlso (b) to Section 13.[8] of th1e l\li Act and it was in tl[1]::1t context i.e. the context of limitation that it was held by the Supreme Court that the expressiion alvina of notice I J.~ occurr-ing in proviso (b) to Section[1] 138 of the IN! Act means 'sending ol notice' The decision in Hannan's case {supra) was rendered in the context of cause of action for filing a cornplaint uncJer Section 138 f\H 1 "'\Ct w~thin jurisclk:tlon of a "ri!-tic••l-r· ('0';1-·:-:::;,v-,,(-; i,-, ·~·i,-,,::.,t o•j.·l··b=o-·'-;.t "v·-:,c he1'~·~ i)-'1 l~f·~e f-l c. u d •".L '- ~I '..' I'. l.l "~'..,_..,,I,,_ ·-"'·1_ I u c,, _, ',, - ·-·· ' )' '- I ' Ct!.M C.No.11J56/2!l:UI'i.t;~onn2cted rn=::ttcc<; ?age;z.s of.-~~7 / J Supreme Court U·!a.t the ex1Jression gh'J'.ng ol notice r occurring in:.:;rov1so (bJ to Se_ (Jiil 138 of the Ni Act means 'receipt olnotlce ~

34. Now, same expression can have different mea.ning[5]:r, different context as ifleld by e.Supr~eme Court in the decision reported as.Majik L/'}1 !11alwndar v Gourarg_Cj_ C'Jandra D.f}_y_ (2004) 12.sec 448 wherein it was observed that a word occurTF:g in a.:: tutory provision can have different meanings in different context with~n the sar:1e statute.

35. Thus,. the inevitable conclu:sion would be that the 1th act contemplated as an ingTeolient of the offence as ilighligl:tecl in Bl7aska.ran's cas:;:~ ii.e. 'giving notice in wdt/;7g to the drawer of c;~eque.- den?ano'il?g pay;nent of the cheq;e an7ount fo!- purr-poses of !imitation would ha:~;e a meaning Js explained Hl B!~::J r-f<;::; r-, 1 •1' c:; iG.J.,_,.,a I - case and for purposes of jurisdiction would have a rneaninQJ as explained in !s!F:1r AlfQJ!s case (supra). ':)6..J.. Befor-e concluding I wou~d De failing not to !odge a caveat. With elect1~onic bankinrg and facility pa,yable at par of clearance provided by nkers and especially n metropolitan cities, \Nhere ci1eques are cleareci by not belrg presented to the dravvee bank lout at nodal branches of tr.e· concerned banks, the subject nnatter of jurisdiction m2y _have to be decidec keeping in vi:evv that the drawee bank has created an agency where t!ru:> cheque in question;s. t'"?'-·lr'!~JI·+·+-eo: "'r-··,,,-;" 1Par;:-1 r>l··e'::oqa! t=-' r· lf\fhP!",o 1-~r•e,~~p:~~-~~--1 1lr--e-.1.....,1J J[1]. Ll _ J'--'1 ·...... r_c,._Jil! Vli. ___ ~J· 1.,.........._, L II.~ ~.... ~._.. o.Clt........... tal<es place would 'rhe1~1 arguably become t!le place wher[2] Crl M.LNo.105Ei/2011 Sz connected matters Page 26 of: 7 ~~ I.. t', nJI' ( ~-j w;, ~! ~ll /_.'' r \l!_j';i I I • '1_--- • I ~ '( r __·JI ~,J ~ ~ l 'l I ~ ~~ f ••~ I;~ ~J the cheque woulcl be required to be tr-eated as presented to 'the bank' i.e, the drawee bank, B in such circumstances proper~y constituted p~eadings have to be found in a complaint and lodging tile caveat i leave it at that for the debate to be properly argued in an appropriate case v1ith the necessary relevant pleadinQJS, 37, i hold that on the pleadings in the complaint(s),i no part of cause of a:ctiori can be said to have accrued to 'the complainant at Dei hi: that tile notice demanding payment 'Nas posted fron[1] Delhi and that e cheque vvas deposi~ec' with the payee bank at Delhi ·would not constitute the acts contemplated as ingredients of an offence punishable under Section 138 Ni Act and thus i dispose of tile petitions quashing the impugned order(s) dated 14,2.2011 and direct the learned ~~CMM to return tile complaint(s),to ·=he respondents for filing in a Court having territoi(ial jurisdiction, 38, No costs, SEPTEMBER 21, 2011 mm Cri.M.C.r~o.1056/2011 & connected rr.i'ltters -. -- r=----·-....-:._'?<::.--=:::· {PHADEEP NANDHAJOG) JUDGE Page 27 cf 27