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TMI Blog2008 (12) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay the amount from New Delhi. Admittedly, the said notice was served upon the respondent at Chandigarh. On failure on the part of the appellant to pay the amount within a period of 15 days from the date of communication of the said letter, a complaint petition was filed at Delhi. In the complaint petition, it was stated: "10. That the complainant presented aforesaid cheque for encashment through its banker Citi Bank NA. The Punjab & Sind Bank, the banker of the accused returned the said cheque unpaid with an endorsement "Payment stopped by drawer" vide their memo dated 30.12.2000. The aforesaid memo dated 30.12.2000 was received by the complainant on 3.1.2001. 11. Upon dishonour of the above mentioned cheque, the complainant sent notice dt. 11.1.2001 in terms of section 138 of Negotiable Instruments Act to the accused persons demanding payment of aforesaid cheque amount at Delhi. The accused persons were served with said notice by registered A/D. 12. By the said notice the accused persons were called upon to pay to the complainant the sum of Rs.5,00,000/- within 15 days of the receipt of said notice. 13. Despite the service of notice dt. 11.1.2001 the accused persons have fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd that accused allegedly failed to make the payment at Delhi, as the demand was made from Delhi and the payment was to be made to the complainant at Delhi." 4. By reason of the impugned judgment, Criminal Miscellaneous Petition filed by the appellant has been dismissed. 5. Mr. Ashok Grover, learned Senior Counsel appearing on behalf of the appellant would submit that as the entire cause of action arose within the jurisdiction of the courts at Chandigarh, the learned Additional Sessions Judge, New Delhi had no jurisdiction to take cognizance of the offence. 6. Mr. Sakesh Kumar, learned counsel appearing on behalf of the respondent, on the other hand, would contend: i. The cheque although was deposited at Chandigarh, the same having been sent by Citi Bank NA for collection at Delhi, the amount became payable at Delhi. ii. Giving of a notice being a condition precedent for filing a complaint petition under Section 138 of the Negotiable Instruments Act, a notice having been issued from Delhi, the Delhi Court had the requisite jurisdiction, particularly when demand was made upon the appellant to pay the complainant at Delhi. 7. Section 138 of the Negotiable Instruments Act reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It was opined that if five different acts were done in five different localities, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act and the complainant would be at liberty to file a complaint petition at any of those places. As regards the requirements of giving a notice as also receipt thereof by the accused, it was stated: "18. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of 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 within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the complaint filed, admittedly, within limitation from the date of the notice of service conceded to have been served upon the respondents." (Underlying is mine) It was furthermore held: "The payee or holder of the cheque may, therefore, without taking peremptory action in exercise of his right under clause (b) of Section 138 of the Act, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once a notice under clause (b) of Section 138 of the Act is 'received' by the drawer of the cheque, the payee or the holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run which cannot be stopped on any account. This Court emphasised that 'needless to say the period of one month from filing the complaint will be reckoned from the date immediately falling the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires'. 12. Indisputably, the parties had been carrying on business at Chandigarh. The Head Office of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice 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. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. 15. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be deemed to have been received in certain situations. The word 'communicate' inter alia means 'to make known, inform, convey, etc.' 18. This Court in Sultan Sadik vs. Sanjay Raj Subba and Ors [(2004) 2 SCC 377], held: "33. The decision of this Court in Khemi Ram [(1969) 3 SCC 28] relied upon by Mr. Bachawat is not apposite as therein an order of suspension was in question. This Court in the said decision itself referred to its decision in State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313], which stated that communication of an order dismissing an employee from service is imperative. If communication of an order for terminating the jural relationship is imperative, a fortiori it would also be imperative at the threshold." 19. Section 177 of the Code of Criminal Procedure determines the jurisdiction of a court trying the matter. The court ordinarily will have the jurisdiction only where the offence has been committed. The provisions of Sections 178 and 179 of the Code of Criminal Procedure are exceptions to Section 177. These provisions presuppose that all offences are local. 20. Therefore, the place where an offence has been committed plays an important role. It is one t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases." 23. Presumption raised in support of service of notice would depend upon the facts and circumstances of each case. Its application is on the question of law or the fact obtaining. Presumption has to be raised not on the hypothesis or surmises but if the foundational facts are laid down therefor. Only because presumption of service of notice is possible to be raised at the trial, the same by itself may not be a ground to hold that the distinction between giving of notice and service of notice ceases to exist. 24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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