TMI Blog2011 (3) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... ia approached the complainant for trade financial facilities. The complainant agreed to provide and sanction trade financial facilities to the accused upto maximum limit of ₹ 4 crore vide sanction letter dated 26.9.2005. On the basis of that, agreements were entered into between the complainant and the accused on 26.9.2005 and 19.12.2007. Pursuant to the same, from October 2005, the complainant started disbursing funds to the accused. In discharge of his liability for repayment of the amounts, the accused issued in all 11 cheques dated 15.10.2009 for different amounts. Two cheques were drawn against the account of the accused maintained with Indian Bank, South Extension Branch, New Delhi, while remaining 9 cheques were issued against his account maintained with YES Bank Ltd., New Delhi Branch. The said cheques were presented for encashment through Axis Ltd., BKC Branch, Mumbai. Out of them, two cheques were returned unpaid with endorsement funds insufficient by the drawee Bank, i.e. Indian Bank and remaining 9 cheques were returned by the drawee bank i.e. Yes Bank Ltd., New Delhi Branch with an endorsement account closed . Inspite of service of the statutory notice, the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Dowry Prohibition Act. As in such cases, there was always possibility of roping in as many as relatives of the husband as possible, it was held necessary that the enquiry under Section 202 is mandatory, particularly when the accused are residing outside the jurisdiction. The judgment in Capt. S.C. Mathgur (supra) was considered by another learned Single Judge (Kanade, J.) in Bansilal S. Kabra v. Global Trade Finance Ltd. 2010 (2) Bom.C.R. Cri.754. After referring to several judgments of the different Courts, the learned Single Judge in Bansilal Kabra held that even though Sub-section (1) of Section 202 provides that when the accused is residing at a place beyond the territorial jurisdiction, the Magistrate shall postpone the issue of process against the accused and either enquire the case himself or direct investigation, the provision is directory and not mandatory. The learned Judge observed thus in para 12: 12. In my view, though the word shall has been used in the amended provision of Section 202(1) and it is followed after the word may which is used, that would not be the only criteria for the purpose of determining that the said provision as manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter. This material was sufficient for the Magistrate to come to conclusion that the case was fit for issuance of process. It cannot be expected that when all such material is produced to make out a prima facie case for issuance of process, the Magistrate may still be required to examine all the witnesses who may be examined by the complainant during trial even before issuance of process. In view of the facts and circumstances, I am not inclined to accept the contention of the accused-applicant that the issuance of process was bad in law for want of enquiry under Section 202 Cr.P.C. 8. Next question is about territorial jurisdiction of the Metropolitan Magistrate, Mumbai. The complaint clearly shows that the accused-applicant had approached the complainant for trade finance facility and the complainant had sanctioned that facility upto the limit of ₹ 4 crore and this was communicated by the sanction letter dated 26.9.2005. On the same day, an agreement was entered into and executed by the parties. Second agreement was executed between the parties on 19.12.2007. Along with the present application, the accused has produced the copy of the agreement dated 19.12.2007 to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done in different local areas, it may be enquired into or tried by a Court having jurisdiction over any of such local areas. 16. Thus it is clear, if the 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. In other words, the complainant can choose any one of those Courts having jurisdiction over any one o the local areas within the territorial 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 regarding the offence under Section 138 of the Act. In view of the above judgment, there are five acts or components of the offence under Section 138. They are (1) drawing of cheque, (2) presentation of the cheque to the bank, (3) return of the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque and demanding payment of the cheque amount and (5) failure of the drawer to make payment within 15 days of the receipt of the notice. If any of these five different acts were done in five d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the facts of the present case are different. It appears that the original agreement to provide the trade finance facility was entered into and executed by the parties at Mumbai. The funds were provided by the complainant from Mumbai. There is no document to show that any transaction had taken place between the parties at Delhi branch of the complainant, which has head office at Mumbai. It is true that the cheques were drawn by the accused against its drawee bank situated at Delhi. The cheques were issued from Delhi and they were deposited with Axis Bank by the complainant at Mumbai and finally they were presented to the drawee banks at Delhi where they were dishonored. However, the contract between the parties had taken place at Mumbai. Therefore, the complainant could issue notice for payment from Mumbai and as per the notice, the accused was required to make payment to the complainant at Mumbai. Due to failure of the accused to make payment within the period of 15 days, the complaint was filed at Mumbai. Thus, out of the 5 components as described by the Supreme Court in K. Bhaskaran, two last components had taken place at Mumbai. Not only that, the basic transaction and contr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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