Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2018 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (3) TMI 1959 - ALLAHABAD HIGH COURTDishonor of Cheque - time limitation - jurisdiction of the court where the proceedings under Section 138 N.I. Act could be initiated - legal notice was not given to the revisionist- accused within thirty days of receiving information about dishonour of cheques. Jurisdiction - section 142 of NI Act - HELD THAT:- Clause (2) of the Section 142 of NI Act clearly states that if the cheque is delivered for collection through an account, the branch of the bank, where the payee or holder in due course, as the case may be, maintains account, is situated or if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank, where the drawer maintains the amount is situated. The above provision has been brought about in the enactment through an Amendment on 15.6.2015. In the case at hand, three cheques, which are alleged to have been dishonoured, are of the year 2014 which according to the complainant/opposite party No. 2, were dishonoured on 23.8.2014 but it's information was received by the opposite party No. 2 on 20.9.2014, therefore, it is apparent that the occurrence in this case is of the period prior to the said Amendment in the N.I. Act, but it would be pertinent to mention here that in DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (8) TMI 417 - SUPREME COURT], the matter of jurisdiction was considered at length in the matters related to Section 138 N.I. Act. Thus, the position of law is absolutely clear that even in pending cases, the jurisdiction of filing a complaint under Section 138 of N.I. Act would lie at a place where drawee bank is situated, where the drawer maintains his account and from where it was reported that there was no sufficient amount in the account of drawer and accordingly, the cheques got dishonoured - From the perusal of cheques, it is apparent that they were presented by the opposite party No. 2-complainant in Aligarh, but in view of above position of law, it is immaterial where these cheques were presented for being encashed. Since these cheques were drawn on the ICICI bank situated in New Delhi, where the drawer or the account holder i.e. the revisionist- accused was having his account and these cheques got dishonoured because of there being insufficient amount in the said account at Delhi, the drawee bank would be treated to be located in Delhi and not at Aligarh, therefore, in view of above position of law, the jurisdiction of this case would lie at Delhi and not at Aligarh. This point seems to have escaped the attention of both the courts below. In this case the proper course would be for the courts below to return the complaint to the presenter of the same to be presented before the court having jurisdiction, but this course has not been adopted by the courts below which is found erroneous. Whether the case was hit by proviso to Section 138 (b) N.I. Act? - HELD THAT:- It is apparent from the above provision that the period for issuing notice by payee or holder in due course is thirty days from the date of receipt of information by him from the bank regarding return of the cheque as unpaid. The question is, therefore, that in the case at hand, when the information was received by the payee/holder in due course opposite party No. 2-complainant - In the case at hand, the notice has been issued on 1.10.2014, therefore, the said notice would not entail any infirmity and would be held to have been issued within thirty days. In the case at hand, the opposite party No. 2- complainant had clearly stated on oath that information could be received by him about the cheque having been dishonoured/bounced on 20.9.2014. In case there was any controversy with regard to the said fact, the parties could have led evidence on this point before the court below during the trial. Therefore, the finding in this regard by the learned revisional court below cannot be held to be wrong that since the opposite party No. 2- complainant had stated on oath about the knowledge of cheques having been bounced to have occurred to him on 20.9.2014, the same could not have been dis-believed by the Magistrate's court outright to reject the complaint. This court's view is in consonance with the view expressed by learned revisional court below and finds that this was a matter which could have been decided only after taking evidence from both the sides during trial. The judgment and order dated 16.10.2015 of the revisional court is upheld as regards maintainability of the complaint and for remand of the matter to the court below for proceeding with the complaint in accordance with law. To that extent this revision is rejected.
|