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

7. Aggrieved by e order dated 14.02.2011 passed b'/ the !earned ACMM, the petitioilers llave filed tile abovecaptioned petition(s under Sectior[1] 48:2 Cr.P,C requiring this Court to hold th courts at Delhi have no juriscliction to take cognizance of the COITlpiail·rts in question and seek dil-ections to the leai-ned ACMI\~ to 1-etu1~n the same for filin~.J before the Court of::::ompetentjurisdiction.

8. It is the -case of the petitioners that the cheques 1r[1] question were draw:-: at Murnbai. e drawee bank is a·- Mumbai, notice issu·ed by the 1-espor1olent to tile petit:ione;company was received at Mumbai ar1ol thus merely becausr~ the respondent post,ed the notice fro!Tt De~lli and depositecl the cheque with i bank a Delh·i would not confer" jurisdiction on Cou(cs in DeihL

9. Tile issue ilas trJ be debateol Nitll refe1~enoe to Section 138 of the ~~JI J\Ct and tl1e applicable provisions of the Code of Criminal Procedui''2 i.e. Secbons 177, 178 and 179 of the Code of Criminal Procedure.

10. 11~1 the dec1sicm 1-eported as 1999 (7) SCC SIC I(Bl7askaran \Is. Slr;:;inl-;arq7_ 1/.3_/QZivan Balan S Alt~J:~, thE~ Sup:-eme Court has opined, afte·'" considering Sections 17'2 to Section 179 of f::: Code of Ci-imina~ Procedure, that ar, Crl.M.C.I\Io.l056/2011 g, r:orli'JPli·:>d malters ! offence may be corTp!eted in:::liffef-ent 1locaiities and thus can be trieci in 2'lY Court he. ng jurisdiction over sale~ localities. To p it pithily, rrn re!abon to territorial jurisdiction, qua c=w offence., law;-ecognizes more than 1 court havlngr ten-~torial jur-isdiction and the issue of territoha: jurisdiction ·would nave to be decided Vl!ith reference tc vvhether a part of c.'~: offence 1Nas co~llrnitted vvithin thE territorial jurisdictiDrl of a court. e issue is no longP.r res integr-a and [ just net:'CJ to note e decision of the Supreme Court in. KB/;askaran's case (supra) and highlight that the; aforesaid is to,'Je C'v:iied out fron[1] ras 11 and 1:2 of the said decision.

11. The next logical questkm \MOU 1 ld be, what are the contour-s of Section 138 of the 1\il /\c:t pertaining to acts to be performed in r-elation to an offence contemplated by the said Section? it ha !y be l-e-e1Tiphasized at it are acts of. cornmission or O!Tdssion vvhrch c:c[1] sbtute offences, with or v\dtho ut the requisite rnens n2a; depending upon \Nilether, the offence i[5] an absolute offence or not.

12. Let me thus note Section 13El,,NI Jl,ct which reads as under:- 'INhere any cheque drawn a person on an accou:lt maintained by hi~TI vvith a banker for payment of· any amount r'noney to another person from out of that account for the discharqe, in whole or in pa1~t, of any debt or other liabiiity, is r-eturned 1oy the bank unpa~d, either because the arnou of rnoney standing.to the credit of that account: Is insufficient to honour· the cheque.<Jr that It i:'.::>(ceeols the amount arranged to be paid from that account by an, Cri.IVI.C.No.1056/2Dll 8t cnn1~,ected me1tters agreement made with that bank,, such person shall be deelll2d to have CDITnnitted an offence and shall out prejudl<:e to any other provisions m" this Act, be punished wiith imprisonment for a term vvh~ch may extend to two year, or wi fine which may extend to tvvice the amount of e cheque, or with both: Provided that nothing conta ir-J in this section shall appiy unless- (a) The cheque has been prresented to the bank within a per-iod of six months nn the date on which it is dr:.:nrvn or wiU11in e period of its v·a!idity, whichever- is earliel-. (b) The payee 01- tile holde1- induce course the cheque, as the case may loe., makes a denland for the payment of the said amount of money by giving cl[1] notice, in writing, the drawer, of the cheque, within thirty days of the· receipt of information by him from the lba.nk regard~ng the return of the cheques as un id, and

(c) Tile drawer- of such cheque ils to make the payment of the said amount: of money to the payee or, as tile case may be, to the holder in due course of e cheque, 'IN in fifteen days of the receipt of the said notice. · Explanation: For- the purpose Clf this "debt or o e1- iiabinty" nneans a enforceable de or other lialoH section, le!Qaliy _ (b

13. In Bhaskaran's case (supra) r~ Supreme Court had an occasion to cleal wit!: tile issue ITitoria~ jurisdlct\on in rei ation to Section 1.33 of the 1\ll and of necessity.. the discussion requin::d tile Supreme Court to ijden_Ufy the. various acts of commission and G!T,ission which::::onstituted the offence punishab!'~ ur1der Se on 138 6f the Nl J\ct and suffice -would it be ~o llighligllt that in para 14 of the Cri.IVI C.No.1056/2011 g, COill~,ectcd malte:-s Page 11 of21 [ decision, the SuprerT1e Court lliQJ1--diQJhtecl that there are 5 acts which are the component<: e offence punishable under Section 138 the i\ii Act and ~ re-produce the samE. from para 1·4 oF the decision of e ')upreme Court. The] read as under:- (.) I; drawinq of the cheque,

(ii) presenta~ion of rile cheque to tile bank,

(iv) giving notice ~~-~ vvriting to e dravver of the cheque·

(v) failure of the dr-c'.vver to rnake payment within 15 days of the receipt of the ~-·;Jtice.

14. After holding at 5 a wouiol constitute the components of S31l offt::;nce under Se on 138 of the Nl.L\ct, in par-as 15 and 16 ctle Supreme Court observed as Lmder: "15. it is not il ecessary t h aH e above five acts should ha\'e been pe([Detrated at the same locality. It is pos~:1ib!e that eaclll' of ose five acts could be dor1e c:t five diffe:-e localities. But a concatenation of all the above e is a sine qua non for the compietlon of the offence under Section 138 of the Code. In this context a reference to Se·=tion 178( d) e Coole is useful. It is extr·acted bel ow:

16. Thus it is c! ea;-, if the five diffel-ent acts were done in five different localitirc::-; alfly one of the courts exercisin[9] jurisdiction ill one of the five iocal areas can IJecome the !Jilace of trial for the offence unde;~ Section 138 of e.A.ct. in other 'i[1].' 101dC ·ti1D:Y'!-:-: l=:,·;I"-Jaq.LL C~!l:-:-li~,n,c:;e· a!l\/ Olnc. 'Jf \J,t,_._, 1:,'\,._, ·-.-L.• •. -'-~ll •-._•.,.-.r: ··-'' '-···-~ r..)' ~'L. "-.[1] Cri.M C.No.1056/201:1 & r::o~-nPc.ced iT!ntter.o Page 1?. Df n l those courts having jurisdiction over any one of the local areas within territorial limits of vvhich any one of those acts was done. As the am pi itude stands so widened and so expansive it is an idle '2X{~rcise to raise jurisdictional question rega[1] ding the offence under Section 138 of e Act." (En7phasis Supplied)

15. On the issue of service of notice required to be given by the complainant to the acc:u:sed, e Supre1Tr1e Court observed as under:- /!17. The mol-e irnportant poi be dedded in this case is vvhether- the cause of action bas arisen at a!! as the n ce sent by e complaina e accu \Nas returned as "unclaimed/l. T:ie conditions pertaining to e notice to be given to the cJravver, have been for-mulated and incorporated in clauses (b) to {c) of tile proviso to Section 138 of e,~ct. The said cia uses are extl-acted belovv:

18. On the pa of the payee he has to make a demand by <~giving a notice in writing. ~f that was the only,-equirernent complete the offence on tile Failure of the drawer to pay the cheque amou11t within 15 days from the date of such "19 ivi ng ", the trava iIs the prosecution would have bee:l very mr.Jch lessened. B the legislatut-e says that failurrc:~ on the part of the drawer to pay t!le amount should be within 15 days "of the r~eceipt" of tile said notice. ~t is, therefore, clear that "giving notice" in the context is not ·the same as receipt of nobc:e. Giving is a process of vvhicl[1] receipt is the accompiishmer1t 1t is for e p.ayee to perform the former tJrocess bv send~nr_:J the nobce to e l..)._., draV\rel- r=Jt ·t[1] -IP r-~;,--,_.nci- ao1d"'"ioc;s. ~ ~- ) ' -- ~ ·,.. l '--..._ ' \.__. ~- Ci-U'·1.CI\io.1056/2011 6c ccH:rc;_tecJ matters Page:n of 2.[7]

20. If a strict interpl-etation is given that the drawer should have actually received the nobce for the perioc! of 15 days to sta1~t running no matter that e payee se the notice on the correct address.. a trickster cfneque drawer wou1d get the prenlliurn to avoid rece ring the nobce by different str-ate~;ies and he could escape from the leg aI con seq uer"~ces of Section 138 of the,Act. ~t must be borne:n mind tha~= e court shou~d not adopt an inte:-etation which h,elps a dishonest evader and clips an honest payee as that would defeat the very legislative rnE~asr,Jre. 21.....The context envisaged in Section 138 of the Act invites a Iibera! inte retation for the person who has the statutor~y oblig1ation to give notice beeause ile is presumed be the loser in the transactio:1 and it is for his inte1~est the very provision is made by the i·2~1isla re. The words in clause (b) of the proviso to Section 13B of the 1J..ct sllO\N that the payee has the statutory obligation to "rnake a demand" IJy '9Jiving notice. The thrust In the clause is on the need to "make a demand". it is only the nnode for making such demand which the legislature has prescribed.,.[4] payee can sencJ the notice for doing hls part for giving tile notice. Once it is despatched his part is over and e i~:ext deoends on vvhat the sendee

22. It is weil settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide 1-larcharan Singh v. Shivrani[2] and jagdish Singh v. l\fatthu Singh[3]). 2~;. HE·r-e e;~,otic:e is rneol as und.aimed a,-.,rl !lOit-;:;c: rPfiJcpr-1 \1'\t'l"li t[lt='lr,:::, all\( c:;i'Qrl·l··fnra",'li- J \_.):] lc_ l_.,,.._} <._. j '~•,_.) '-- ~-rJ •.; ~-- 1... ) ~- 1 li..._. ~ \., difference betv,~een the so far as the presumption or service is co11Cerned? ~n this Cr!.iV!.C.I\Io.1056/2011 8t conlk'=~:r::d matters Page l[4] of n connection a refer-ence to S(:.2c:tion 27 of the General Clauses i\ct will b:e usefuL The section reads t11us:

24. No doubt Section 138 e Act does not requi1-e that tile notice should be given only by "post". Nonetheless the pr~nc.;ple incorpor~rted in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by iC::!OSt vvith the correct address writte1-; on it. Then lit can be deemed to have been served on e sendee · unless he proves that it vvas not really served and that he was not r·espc::lsible for such non-service. A.ny other inter-pretation can leacl to a very tenuous position as the drawer of tile cheque vvho is liable to pay tt:e amount wou:ld resort to the strategy of subter-fuge by successfully avoiding the notice.

25. Thus, wl1en a notice i~; returned by the sendee as c.mclaimed such elate would be the cornmencin~g d:ate in reckoning the period of 15 days contemplated in claus[2] (c) to the proviso of Section[1] 138 of e Act. Of course such reckoning would be withmJt prejudice to e right of the drawer of the cheque to show at he had no knowledge that tfle notice vvas brought to h~s address. In the:Jresent cas·e the accused did not even attempt to discharge the burden to rebut the aforesa~cl p:-esumption." (En7phasis Supplied)

16. The expr·essiol-:s: 'presenta the cheque to the Bank' and 'If the:/e different acts were done in five different lo~~-alities_ C!f!Y one if:e courts e)(ercising jurisdiction in one c7c t/7e five /oc,a/ areas can becorne the olace of trial (ol- the c/Yence under Section 138 ol tl7e /:jet' to.. r e f:J I In C''l.,l.-1 'J...., r~ c l ':1 'l [ 1 1~=- ~---, c r·· c= r-·t'I'V(::::..! \ 7 ""l p 17 -, ~K'-.-,,--:lr-7' r-,.,) ~ I '-- \.... l c. Cl.l __.).L 0, ~ J -.\_) 1 ·:-:.:.........::-...[1] c ·-· ' -~ J' ~ ~. !-::!:.:..___9:::2-.\~!L..:~.:-.:::. case (supra) ha,;e b,2,-:n understoodl loy n:any to mean that Crl M.C.f\Jo.1056/2011 ~t co:·r:,der! nlat~ers o;:,ge 15 of 27 the Court within Joc.2! limits of vvlli ll epayee Bank i.e. th~::> Bank \/Vhen:: tile c:~Jmpiainant cieposited the cheque i::; situated has the j J -isdiction the complaint under Section 138 of the 1\ii Act, and th;e unclerstanding[1] appears to be fortified by tile observations of the Supreme Court in paras 15 and 16 that if the 5 acts coi-itemp~atecl as the ingt-edient of an offence under Sectiion 138 of the [\H,IJ..c: were done in 5 di __ rc:nt loca! es,. any one of the cou(: exercising jurisdictioi: In an}' one e 5 ~ocai are,as vvoulc have jurisdiction.

17 But, it is app[2]:i-2'";t that the IC)bser'Jations in para 15 and 16 are an obiter as it is not:;, 'Cllac:es vvhere e 5 acts. I constituting an offence under Section 138 of the !\U ~{\ct can possibly be perfon11ed The act:; can be perfoi-mc.d, as would be explained h,=:reinafter, on:ly art 4 p~aces and it Nould immediately state act No.2 and act 1\lo 3 re~ate t,J onl·:~ one place i.e. the piace vvhere tli1e drav'~ree bank is ~ocatecL

18. The second anci the third a the 5 listed by the Supr-eme Court, as CCillStituting r:-_; offence under Section 138 of the f\11 A.ct ar~: (a) presen tion of the cheque to the bank; and (b) retwT:i:-IQ the cheqrJ~e tH"1paid by e drawee bank.

19. The thiml act is e reh1n[1] til~~ cheque unpaid by the drawee bank anoi thus tl1e[1]..e Is no scope fot- any 3Jrgun:ent as to which bank is contemplated reference to the said act. The second o.ct pertains to the act of presentation of ci·-~eque to the banlc i ilighl!g!Tt tna ~':: tw:n WOI"ds used are I the bank. Cri.M.C.No.1056/2011/S, con1~e:::'ed mc;tters

20. lin the decision rr~:c)IJrted as 2001 (3) SCC 609 Shri lshar A/lov Steels Ltd Vs. la_vaswals Neco Ltd, a 3 Judge Bench of the Supreme Cou r·- 2 Jing as a member of the Bench the author the judgJme in Bhaskaran's case (supra), dealt with and decided as '/\rhat wouicl be rneant by ··the bank' as me oned in ~;e,Jn 138 of e N! Act. VI/as it the drawee bank or e;Jayee bank? The Supreme Court ansvve e questio1-1 !:,[1] the followin[9] words:- ':! ( \f\f'1::o-t:c P'l~-"'·"'nt- b\· '·' e 'oaili</J;::)C: t~, I CJ '._1 1 _. Cl I - __I l VJ.._, mentioned in c!au:se (a) of the pmviso to Section 138 of theN ououie !Instruments Act, 1881? (IJ) Does such bank mean the bank of the drawer of tl1e cheque or e payee of the c eque?

(c) To which barlG. the cheque is to be presented for the IQ1~rposes oiF attractiilCi tile penal rprovisions of Section 138 of the.A.ct?, are the questions be deteiTilined by this Court in is appeaL · 7 ~t has r::( 1:~,:y::: noticec[1] at to make an offence.under- Sr2ction 138 of the l\ct, it is mandatory at 2 cheque is presented to "the bank" within a riod of six months from the date on wl1icr11 it is drawn or vvithin tile period of its validity, whicli"!e·Jer is earlier. ~t \s the cheque d1~avvn which f1as to be prese to "the bank" w in the peri specified therein. When a postdated cheque is vv·l·itten 01~ dravvn, it is only a bill of exchangJe. e oost-dated clleque become a cheque unde!r c: J\ct on t:le elate which is written on the saicl cheque ancl the six months! C:L~/LC.i\Jo.10S5/2011 8r CCJ!'FV:-cr~e n1atters Page 17 of;n 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 llthJnker'' for payment of any amount of money to another person frorn out of that account for the discharge, in \llfliloie 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 cred ·~ at account is insufficient to llonour e cheque or that It exceeds tile Y'1lount arTang to be paid from that account by an agreeme made with that bank, such pel-son shall be deemed to have commiitted an offence punishable vvith imprisornllent 3S prescribed therein subject to the conditions mentioned i:n clauses (a), (b) and

(c) of the proviso. Section 3 of the 1-\ct defines the "banker': to include any person acting as a banker- and any post office savinQs bank.:Section 72 of the ~~ct provides at a cheque must, in ol-der to charge the drawer, be presented at the bank upon vvhich it is drawn before tile relations between tile cli-awer and his lo~anker has been altered to the pr-ejudice of the drawer.

9. The use of e \Nords "a batnk~~ and "the bank" in the section is an indica I' of the intention of the leQis!atun:::. Tile former is an indirect (sic indefinite) artic!e and tile latter is prefixed by a direct (sic definite) artide. ~f the !egJis~ature intended to ila\;e the same meanings for "a bank" and "tile bank", then:· vvas no cause or occasion for iTlentioning! it distinctly and differently by using two d re articles. It is worth noticing tilat the word "banker" in Section 3 of the Act is prefixed by tile indefinite article "a" and tile word "bank" wher-e tr1e clleque is intended to be presented under Section 138 is prefixe11J by thr[2] definite a de ''the". The sarne section permits a person to is::.ue. a cheque on an account ITlaiiltained by hiiTJ vv "a bank" and Cri.M.CNo.1056/2011 1St:::onnec~ed matters. makes hin'1 liable for crinr:dn1d[1] iDrosecution if it is ' returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" m1eaning el-eby where e person issuingJ the cheque has an account. "The" is the word used before nouns, with a spec ng or partkularising effect as ooposed to the indefinite or generaiising force of "a" (),- "'an". ~t determines what particular thing is meant; that is, what particular thing we are to assume to be meant. ''The" is always mentioned to denote a particular thing 01- a person. ''The'' vvouid, the1~efore, refer implicitiy to a specified ba nil< and not any bank. "The bank" ·referred to in clause (a) to the proviso to Section 138 of e Act wouid mean the drawee bank en which the cheque Is drawn and not all banks 'v~:here the d1eque is presented for collection including tile bank of the payee, in whose favour e cheque is ~~:;sued.

10. it however, does not mean that the cheque is always to be presented to U1e drawer's bank on whiich the::::heque is issued The payee of ti~1e cheque has tile option to pn:se11t e cheque in any bc:mk including the collecting: bank where he has his account but to c:1ttract the criminal liability of the drawer of the cheque such collecting bank is obliged to _JQI-esent the che1gue in, the drawee or pavee bz:u1k on which the cheque is drawn within the_period of six months from the date on whicl[1] it i.::; sllovvn to have been issued~......The ilOn-prese tion of the cheque to tile drawee b::1 k within the period specified In the section \Nou!d absolve the person issuing the cheque of his criminal liabHit)t under Section 138 of the Act, who shall otherwise may be ~iabie to pay the cheque amount to the payee in a ciVil action initiated under the lavv..A combined readin<Lof Sections 3 72 and 138 of the;.~ct would leave no. doubt in CU( mind that tr11e la\0.c mandates the clle_lliJe __to _}OI~_jQresented..irt th~ bank on whicl~1 it is drawn if the drawer is to be held criminaliL. liable. Such presentat~on is Ci"I.M.C.f\lo.l056/2011 8t COilllPCted iY,CJtters Page 1S: of ZJ ne~e~;sa_ri iv tJ be made vviH[1] in six months at the • bank on whi,ch the cheque 1:~;. drawn whether presented pei-sonally or throuqil another- bank_~ namelv, the _collecting bc~nk of the ~vee.''' (Ernpl7asis Supplied)

21. T~lOU~!h ti·Je c1E"cision in lslJ.~p- A.\1/o)/s case (supra) has been rendered in e context lirnitation for presentaticn of a cheque, the said decision br~ngs out in no uncerta;n terms that Sectior--:, 138 of the Ni contemplates that a cheque is requirec co be prese for encasl·1rT1ent to the~ dr::Jwee Bank anc:l ~!,at tile payeE: Bank, merely ac:ts as an agent of the ['l;:j'y/Peicnmp!a Irv· '-" '~_..., _ ·- j <._. C I 'J••)J for the pu oses of presenting the Cil.C>.:: ue in qUest~ on r encashment to th 2' d 1-awee Bank. }")

LL. Tllu~ ·'-lle jlld:j:-t ·J-o wr··t'Cil CC! c:,UI')J~e·l'''e unl"i''i-:--,_:J-;:prrl-er-l ~ 1.:J, L,t_ _.[1] ~ L l, \'-' ·---.._., J ~ '\.... !u........, L i l- 1 -~ I •__..l ro -~.... BJ-::js(/-:Jr"CJ;--·'~ ~--,c-;::-.:. r=l'.~.,-J!.::l,:- p r::; '":h' ir·ir; cc~·--1-i+·r··'-.pc...1---,."'._ [L __c.l_~~:::,... c._,_.AJ u. '-- L.._,_... Vc ·-· 1,];::,~,LI...ol-.___, 1.. •-offence unde!- Section 138 of e N! /~1.ct was th:: Pre-e·nt-,·l-"Jor~,,£ - ~ I OL I 1,, I P -"'eql'P J·'r·o dr-J\f\ree h-,li- -n·.- ·- Lil _;,_.I-- ·- '''- L 'c. - [viOl!:.\. dl t;J needless to statr;:: e Td act vvr1i1Ch CO'lsbtutes:an Ingredient of the offence is ti_:\C:: retum of the cheque unpa~c\ by th: dravvee bank and t::us it beco1Tv2s crystal c!ear that e Z'j and 3rd act constit _:lg the offence i!VOU~Ol relate to on!y one olace i.e. the p!ace,,here the drawee bank is located. I '

23. These are rr.y humble re;asons to hold that the observations in paras 15 and 16 have to be read as ao orbiter and tl1us the 5 acts conten..r:c)lated as constituting the offence are cap;:;:ib:~:::Jf being pe rm not in 5 but only in 4 places and siilce -:jeposit of (:1 eque with the payee bank Is not an a. cunternplated as: an i:•:gredient o·f the +r· ~· • ~:. h · ' · 1 ~ 1 'I • l o1rence, cne p~e:ce VH'2~-e t[1] epa e bani< IS:oca~Ceo \N.OUJd Df~ Crl.i\f!.C!\Io.1056/2011 (,_ cc•;.:·~,~cled 1.11at~ers Page ~W of 27 '2 irrelevant for pc: usc"::; of dete::rnir;1ing jurisdiction of the criminal court.

24. It is settled !c:rN that a decision is 31l auth1ority for the point it decides and not what can be logically deduced therefr~om and the i-.:rtio of a decision has to be gathered with 1~eference to th,[2] facts of a case and ~just highlight onlr one decision oF 2 Supren1e Court be~ng the decisio~.l reported as f}hodh.Q_'_(-Iouse il 5:!( /lj~(2006) 9 sec 41.

25. The matte1~ ~~e9arding jL:risoliction can also be dec:ded with reference to Sec::tion 6,:3e on 7, Sectlion 64 and Section 72 of the f~l /\ct.

26. Tile rE::. '1' e\1 -,,.-,'[-· ~.- "rrt'l 0 f~ ~ -. C: l l L 1.--1 I...) h 1 of. S~ection 6, Section 7 and r.L' I 64,,;:: r~~ ·-..,~l ('r:::r"'-·,,-. --;·~.. f ·ti~. Nl~ (> t,,.. ""'d''c,...:::.ecuoll Cl.\l!. n: i<,__;.::J.•_:·_I.Ii~ i J L 0 'Je i! I fJJC: II ea _., a.:J ·under:-· Section 6. Clleoue: - A "cheque" is a biH of exchange d!-a\Nil on a spec ed banker· and not expressed to be payab~e otherwise than on demand and it !:-·:ciudes the e'iect1~onic image of a truncated cheque and a ch i.Je in the electronic form. )( )( )( Section 7. The nlaker of at bill of exchange or Cheque is ca iIed the "c[1] rawer"; the per-son +-Jlnr~=>b't,-iir-r::-'r~L"r·: !-0 1 p·:::1·;·,·c r'"a·,IJ,.:::~(·i t-!·1e "n!-a\f\.le·e" L \...... 5..._.Y u ' 1_. \._.. ·-,_ ~ - \......; • l._.i, )._; '--·'.._. UJ I_ t... ' " )( )( )( Section 64. i0 resentrrle r,~ payment. (l)]Prorr1isso ncte::., bilils exclnange and cheques must be pr·e:sen for payment to the maker, accepto·- or dr0vvee thereof respectively; by or on b[2].~·;::?lf of the holder as hereinafter - id ~0~ I-, ~loL-l ~-1- ()r.,,,!......,r-rco '--·r -·t t·'-jn p!OV, E.. v. 1!' \..:>:::.idJ L.r SlLill p.i'c._),,_nulle[!t. J:c Cr!.i\il.C.i\:o 1056/2011;;;, co,-"v'·cteci rnzlite•·s::>age:.2'1 of n. other p.a!~ties ther-eto are n Uable thereon to such holder....... X X X Section 7.2. Subject.e provisions of section B[4] a cr~:eque rnust ir:: order to charge the drawer, be presented at u·:e bank upon which it is drawn befo,-e the relation lbetvlfeen the drawer and his bankel' l1as been a to the prejudice of the drawer..27. t\ co-joint reacii::g of Sections 6, 7, 64 anol 72 as a~so of Section 138 of the f\1;.::\ct b1~ing::.: out that in order- to attract penal provisions of Section 13B the ~H Act a cheque is required to [t)e prese1-1ted for encaslrlme to the draweE~ Bank and that the payee Bank acts mel-ely as an agent of the payee/comp~ainant for the purposes of presenting the cheque in question to the dravvee Bank. The necessary cor-ollary thereof is ~hat no pa cause of action for the offence punishable '~::-ider Sectioi'l 133 of the N~ l\ct arises i~1 the Court within the ocal l!mlts which the conectiing Ban~: of the compla~nant i.e. payee Bank is situated.and thus saiC' Court has no jurisdiction to try a con1plaint under Sectior 138 of the Nl.L~ct filed by the COtTiiplainant.

28. This takes me to the consideration of second question involved in the pr-e::;ent case i.e. whether the court within the local liimits of which the pl.c;:ce from where the complainant had sent a notice contemplated under proviso (b) appended to Secti·on 138 of e Nl l\ct is situated has the jurisdiction to try a ccnnp!aint filed under Section 138 ofthe NlAct o-1.1Vl.C.I\Io.1056/20U 0. corm~·ct~d rn3tt2rc~ ?age 2.[2] of 27·

29. I have a!ready noted the observations made by the Supreme Court in Bhaskaran's ca::;e (supra) in the foregoing paras and would llighlight that in paras 17 to 23 the Supreme Court has reflected upon the limitation within which the notice !1as to be g n to the accused. Th[1];= Supreme Court was considerin~1 tile expression 'giving () notice' in proviso (t~) to Section 138 of the N! t\ct, with reference to the 15 clays' time contemplated then by vvhich the requisite notice had to be se:-vr2d, which time is now 3( days.

30. Another decision of the Supr,eme Court, reported as (2009) 1 SC:C 720 l-!arman Electronics Private Lilnfted v National Panasonic /nola Private Lilnited is worth noting on the subject.

31. In Hannan's case (supra) tile question which had arisen before t!1e Su;Jreme Court IlVas precisely the sarne.,question whic!1 arises for consicller-atlon in the present petition i.e. whether e court witilint e local limits of whicll the place fronn wile:-e the corrqo~ai111ant had sent a notice contemplated! under f~/ovlso (b) Section 138 of the N~ Act is situated has tile jur-isdiction to a complaint filed under Section 138 of tile Ni:;:J,ct. Answerln~JI the aforesaid question ln the negative, the Supreme Cou observed as under:- 12......T~1e Oilly question, therefore, vvhich arises for consicieration is at as to w11ether sending of notice from Delt-li H=selrf would give rise to a cause of action for takin121 cognizance under the Negcrtiab e nstruments Ci"l.fVI.C.No.1056/20E,'5i_:::onnr:::te:d matters

13. It is one thing to s at sending of a notice is one of the ing[1] ients for maintaining the cornpla!l~t but it is a11other thing to say that dishonour · a cheque by its.elf constitutes an offence. For e pu(pose piTNing its case that the accuseci had comrnitted an offence under Section 138:Jf the Negotiable ~nstruments Act, the ingredie:lts the!-eof are required to be proved. \/\!hat would con:.:;btute an offence is stated i11.e main provis~on. The proviso appended ereto, however~..imposes certain further cond ons which are required tc· be fulfilled befcYe cognizanoc:: of e offence can be taken. If the:ngred!ents for constitution of the offence laid clown in prc)visos (a), (b) and (c) appended to Section 13E: of the Neg1otiab!e Instruments a!-e intend to be applied in favour of the c.:ccused, there: cannot be any doubt that receiot of a notic.e vvould u mateiy -give rise to the cause action for ning a complaint.;0.,s it is only on ~-ecr::ipt of the notin:' that the accused at his own p21-il may refuse to pay the arnount. Clauses (b) an,j (c) of the rprovJso to Section 138 therefore mu.st be read tCIQJether. ~ssuance of notice would not by itself gjive rise to a cause of action but CO!Iimunication of the notice would..'"....For constitution of an offence under Section 138 of the, the notiu:~ rn,ust be recehreol by the accused, It may be deemed to have been ~-eceived in certain si ons. ThE~ vvord "comrnunicate' inter ala means "to make known, lnfotTn, convey, etc". 20......:~\ ccurt derives a juri ict:i.on only wlhen the cause ()f c:.~ction arose within its jurisdiction. The same cc,r-not be co rred by any act of. omission Dr- commission on the part of the accused. A distinction n1u also be borne in mind IC>c:tJVeel"r e ingredi·r~nir: an offence and commissior'~ o:' a oar-t e offence. V\fhlle ~ -~----issuance of a ~l()Jice by tlv[2] holder of a negot1a_Q_!e Cri.M.CI\Io.1056/2011 & cc•,wcc:cted matters J(J instrun'lent is necessary:L__;;~_ndce tilereof is _.9l_::o imperative. nly on a service of stJcll notice and failure Oil 1:.1- e part of e Dccused to pay th•2 demanded a!T:ount within a oeriool of 15 da\1s,, y thereafter!.. e cornrnission of an offence completes. 0_bdnq of notice therefore, cannot have_an\~ pi-ece(:ief]t overJ~he servic~. ~t is only from that view of the rmatter that in Daln7ia Ce;nent (Bharat) Ltd v. Galaxv Tr:::rders & Agencies.L emphasis 1-1as been laid on service of notice.. " (Etnphasis Suppl/ea~) -:; ·-; '. ·~-::). ·f''.f~C'-1- rr\ ~.-: -, ':.-C --,....{. l_, -., n-F' tI 'I.-~ n.~~. r' -.. r ·F ·tf ~ c,; ~ r-:l....... 0..JL.;--,t. u LJL!u;U.:>;,, _:oUI>i\:!J '.J! _,l<E u•cU.~iOii.::J Q,.lE. ~-"up.(:.rll\.....--... -t ·. f7f.. -,.f.. -~-··., d ·•_J r---, --,..,;. -· ~,..,,,~.,...,\ ~'-· ~, \...:.u U i Iil i:.~!]o5~''.cU_s.JJ. ~-~ n t,a,; Ji<!...!. S Cc;SeS (5u )-!I o; !· t IT! a/ strike to the reader· that there s a confnct between t!1e hvo decisions,inas:TiUCh 2·5 rn Bhas/-:araris case (supra) it was held that the ex.iJ~-esslon 'giving of notice' occurTing m proviso (b) to:)ecxion 1.38 of e Nil Act means ·sending ol notice/ whereas in Hanna17's ca::;e (supra) it vvas !1eld that tile said expressic;' means 'reu::f:c}lt of notice'..33. A can::fu! i-ead, lQ of tile tv11o decisions shovvs at the~e i~' no conflict tJ een the saio, ck:ci ons inasmuch as tile:/ 1 ave !Jeen rer:cierecJ in different contexts. Thf::: decision m Bhaska_ran's case (supra) was rendered in the context Jf stal"'cing point of:! Titation pel-\ocl of 15 days preschbed in proviso (b) to ':Jec!~~'~Ti 13.[8] of r:: hll~;~ct and It was in tll.jt context i.e. the cc:Y·=ext of lim on tf1at it was held by the Supi~eme Cou t;~,a,t the exnn::ssrron giving of notice' occurnng in proviso (b) to Sect~on[1] 138 of the i[\U Act means 'sending· or notice' The decisi~tr: in 1-lannan's case {s:uprd) was rendered ir: c~ context of cause of action for filing a cornplaint under Cc.' __i \,.__ c_ "'"' rtI. Cl! J- r r·0 ~J ~--'- --,......: [JCl d -· l,_:::lil(· cr[1] 138 r\~:1 w ~n jurisdiction of a ·~~-~ that cc.n-lte;~t it vvas '~ 'r' \,.\ / t• h rl ~ eL 1:~) }· •:,e Cr!.!Vi C.No.1056/21l11 il.t COIVie.Ued m=:ttcrs ?age l.[5] of:~7 \ c; up ~-eo~l D ~~~-·;I _, J - l.! '·=- '··-'u 1 v; rit. '["lP P"i~ ~arr'IOfl r: 1•/''79' 0/'. 1"'0['fca' c..1.....:/1, )II~.:.·.':>. y,' /., 1.: C occurring in prJ\/iSC (b) to Se _ on 138 of the Nl,L\ct means J receipt olnot/ce '.

34. Now, same expression can i1ave differe m1ean!ngs in diffel-ent context as held by e Supreme Court in J·he decision r-epartee: as ll!falik L.,~il l11ajwndar v __ Gourar:qC!_ C7andra D~:. (2004) 12 SCC 8 wherein it was observed that a word occ>..:rTi:-:g in a ~.tc:Jtutory prov,ision can have different mean iilQS in d1ffere co11text within the sar:~.e statute.

35. Thus, the iil,:?:vitable conclu:sion would be that the "1th act contemplateo: as an ingredient of the offence as llighlightecl in 8l7aska_ran's case i[1].e. 'g/1/ing notice in vvrit!og to tl7e dra we;· of c/;eque / clen7al7oil7g pay;nent of the cheque an7ow7t, for purposes of limitation vvou!d have a meaning:-:~s explained m Bl7askaran's casr~ and for purposes of jurisdiction would have a rneanrng[1] as explained in !sliar AliQJ!s case (supra).

36. Befor-e conci~1ding I vvould De failing not to lodge· a caveat. \1\fitll electn:~!nic bankirr:(;J and facility pa.yabie at par of clearance or-ovided u by bankers and especially n metro pol item cities \/lfh ere cheques are clea reel by not beir.g presented to the dravvee bank !Dut at nodal !Jranches of the concerned banks, e subject matter of juhsdiction.mc;.y have to be decidec keepinq il"~i vi:evv that the dr:avvee bank has created an a~;;ency when:: e cheque in question is t-·;:_,rl~il--II·.,_.Led: 'r'·r·,•.- I''IPr':'i~;c.[1] nl--e:::l'ld F• r. c-; 1"( 1 11·;::.[1] 1-;:::' ·t~ll""' 1''1p·:c~~-··r 1l~'" 0 _1._..~ 1 _ • LL,...... 1 ~..... _.......,..); •.:..A, _.J._ 1r ~. 1:.........._. 1 '~-..._. 1._. c~ ct 1 1...~ c.: takes place wou!ci en ar~1uatly become the place where (!·[ M.C.No.105E;/2J11 1St:~G. ilc~cted:-rlalters *'' ~~ ~.,. !i ful; r~ ! [;,),,.1' JI lit, ~~~ !\;1 ~·j' r~ '-\l: ~~,~·· "·:1 'f".l ~:1. f~l f: 1:)1 ~ll: II· ', ~· t~l 'I' I( ' l' 1!,:., r,{:.~l · "'I ~;.. 1,1,:1 f.i: l:ci:ij:..,... '.[1] ' e cheque woulcl be required to be treated as presented to 'the bank' i.e. e d1~awee bank. B in such circumstances, propedy constituted pleadings llave to be found in a COIT1plaint and lodging the caveat, i leave it at that for the debate to be prcperly argued in an appropriate case with the necessary rel~vant pleadings.

37. i hold at ·Jn tr11e pieaolings in the complalnt(s), no pa of cause 2:::::tiori can be said to have accrued to the com pia ina at CJ.c::ihi: that tile notice derna nding paym2nt 1.rvas posted rn Deihl and tl-ic:.rt e cheque vvas deposir=ed vvit1n the payee bc:nil< at Delhi vvould not constitute the acts contemplateol as ingredients of an offence punishable unjer Section 138 N~ and thus I dispose of the petitions quasl1ing theirnp:Jgned order(s) elated 14.2.2011 and direct the learned F\C~v1M to return tile complaint(s) to ~.=he respondents for filing in a Court having territo'-ial juhsdiction.

38. No costs.

SEPTEMBER 21, 2.011 mnn Cri.M.C.No.1056/20118t connected matte1·s ~~--·,.--:,"___:· -. (PHADEEP NAJ\~DRAjOG) jUDGE Page 2.[7] c.f 27