TMI Blog2006 (9) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... n at Bhandara. The accused is resident of Bhandara. Since the complaint was serving at Bhandara and was on friendly relations with the accused, on a request by the accused for a hand loan, the complainant gave a sum of ₹ 35,000/- as hand loan to the accused. The accused is sued three cheques of ₹ 15,000/-, ₹ 10,000/- and ₹ 10,000/ - payable on 7th of August, September and October of the year 2004 towards repayment of this hand loan. These cheques were drawn on Bank of India, Bhandara Branch. The complainant presented these cheques for encashment on 27th January, 2005 at Digras Branch of Yavatmal Urban Co-operative Bank. Inquires by the complainant revealed that the cheques had been returned by Bank of India, Bhandara with the endorsement that the account was closed. The complainant, therefore, caused notice to be issued on 2nd March, 2005 through Adv. Ramesh N. Datir, resident of Digras, District: Yavatmal, Calling upon the accused to pay the amount of cheques. Notice was received by the accused on 10th March, 2005. The accused however, failed to pay amounts of cheques and did not even care to reply. The complainant therefore, filed complaint for the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel, proviso (c) to Section 138 specifically refers to failure of the drawer to make payment of the said amount to the holder in due course within 15 days of the receipt of the notice. 7. The learned counsel submitted that in view of the provision of Sections 177 and 178 of the Code of Criminal Procedure it cannot be said that the jurisdiction of the Court of Judicial Magistrate at Digras is excluded. He relied particularly upon clause (d) of Section 178 of the Code which lays down that when it is uncertain within which local areas the offence is committed, or when the offence consists of several acts done in different local areas, it may be inquired into and tried by a Court having jurisdiction over any of such local areas. According to the learned counsel, his client had presented the, cheque to Yavatmal Urban Co-operative Bank, Digras Branch on 27-1-2005 and had received intimation of dishonour at the said bank. Thus, a part of cause of action had arisen at Digras. For this purpose, he places reliance on judgment of Andhra Pradesh High Court in Vuppala Venkata Nageshwara Rao v. Tulluri Chit Funds Pvt. Ltd., reported at 2005 Cri.LJ. 575. In that case, as can be gathe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for Non-applicant No.2 had also relied on judgment of the Apex Court in K. Bhaskaran s case which was relied on by the High Courts of Andhra Pradesh, Delhi and Kerala, referred to above, it may be useful to understand as to what Apex Court had indeed ruled in K. Bhaskaran s case, and in the context of what facts. In that case, the cheques in question were issued on Kayamkulam Branch of Syndicate Bank which was not situated in the District in which the complaint was filed. As can be seen from paragraph 8 of the judgment of the Apex Court, it was held as proved as a fact, that the cheque was issued at the shop of witness No.3, which was situated within the territorial jurisdiction of the Court where complaint was filed. In the context of these facts the Apex Court considered the objection to the jurisdiction which had been upheld by the Magistrate and overturned by the High Court. Since the judgment of the Apex Court in K. Bhasrakan s case is of great significance, it would be useful to extract relevant portions of the judgment to find out as too what Apex Court has exactly held. After analysing the provision of Section 138 of the Negotiable Instruments Act and Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the ratio and not every observation found therein nor what logically follows, defines the scope of a judicial precedent, Judgments cannot be read as creating new statutory rules and, therefore, the observations therein are not amenable to the same elasticity, which may apply to the provisions of the statute. Further, while making an observation in the context of facts before it, a superior Court may not be aware of implications of applying the observations to situations which may not be foreseen. With this caution in mind, it may have to be found out whether the principles elicited by High Courts of Andhra Pradesh, Delhi or Kerala in the three decisions referred to above, could be supported by or derived from the decision of the Apex Court in Bhaskaran s case. 13. In Bhaskaran s case, as a matter of fact, it was held as proved that cheques in question have been issued at the shop of P.W.3 within territorial limits of trial Court s jurisdiction. The five ingredients enumerated by the Court in paragraph 14 of the judgment would undisputedly attract the provisions of Clause (d) of Section 178 of the Code of Criminal Procedure, since it can be said that the offence punishable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, with utmost humility and with great respect to the observations made by Andhra Pradesh High Court, it is difficult to deduce the ratio elicited by the Andhra Pradesh High Court, from the observations of the Supreme Court from K. Bhaskaran s case. It must be held that the observations in Bhaskaran s case do not support such a view of law. 15. As can be seen from paragraph 2 of the judgment of Delhi High Court, the objection to jurisdiction was to the effect that jurisdiction would be restricted to the place where notice of demand was served. The Delhi High Court concluded that since cheque was presented at Delhi, Courts at Delhi would have jurisdiction. If the cheque was presented to the bank (i.e. the drawee bank) there would be no difficulty, but if cheque has been presented at any or a bank, it would be reading something which is not in the judgment in Bhaskaran s case and refusing to give effect to implication of use of definite article the in item (i) in paragraph 14 of the judgment of Apex Court in Bhaskaran s case. Therefore, if the Delhi High Court has held, that a place other than that at which the drawee bank is situated is referred to in paragraph 14 of Bhas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose jurisdiction the cheque was merely presented for realisation, were to be allowed to entertain complaints, the result would be opening flood gates for harassment to persons who issued cheque. A person who issues a cheque on his bank indicates by his act that he intends to make payment at the drawee bank and not elsewhere. Therefore, for the reasons stated above, I am in respectful disagreement with the views taken by the Andhra Pradesh, Delhi and Kerala High Courts, because in all these judgments, significance of the word the in clauses (2) and (3) in paragraph 14 of the judgment in Bhaskaran s case has been lost sight of. 20. It has to be reiterated that expression used in a judgment cannot be read out of the context, and cannot be stretched beyond what is warranted by the factual context. If such was not the requirement, items (4) and (5) in paragraph 14 in Bhaskaran s judgment could likewise be stretched illogically, with oblique motives by unscrupulous litigants. For example, a holder, aware that the drawer who had, say drawn a cheque on a Nagpur branch is away on a holiday a Shimla and his Shimla address is known to the holder, and the holder causes a notice to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 14 of the judgment in Bhaskaran s case it would have to be examined whether the facts in the present case attract items (4) and (5) in paragraph 14 of Bhaskaran s case. The learned counsel for Non-applicant No.2 submitted that complainant s Advocate Shri Ramesh Datir, resident of Barabhai Mohalla, Digras, District: Yavatmal had issued notice on 2-3-2005. Since the notice was issued from Digras, the Court at Digras has jurisdiction under item (4). The very first part of this notice is important. It reads as under: Under the instructions and power given to me by my client Shri Dashrath Rupsing Rathod R/o. Soyjana Tq. Manora. Dist. Washim. I hereby like to serve you as under . (Emphasis supplied) 25. The learned counsel has graciously produced a copy of notice for my perusal. Perusal of the notice does not indicate that payment of dishonoured cheque was claimed at Digras (and, as the foregoing discussion would show, such a claim would be untenable vide Sessions 61 and 72 of N.I. Act). He however, contends that accused has the liberty to create his account in the Bank at Digras and pay the complainant at Digras. Question is not of the liberty of the accused but is of his lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible to uphold the said order. 29. All the same, it would not be appropriate to grant prayer seeking dismissal of the complaint for want of jurisdiction, since the complainant may, for reasons which may have struck to him as good on the basis of the judgment of three High Courts, have filed complaint at Digras. Therefore, while the order passed by the learned Magistrate at Exh.51 in Criminal Complaint No.856 of 2005 is quashed and set aside, the complainant would have a liberty to cheek under Section 201 of the Code of Criminal Procedure that the complaint be returned for presentation to the Court of competent jurisdiction, if necessary, by explaining to the Court the delay that may have occasioned in preferring complaint in view of this intervening litigation. Since the Court of Judicial Magistrate First Class, Digras has no jurisdiction to entertain the complaint, the Judicial Magistrate First Class, Digras shall not take up further proceedings in the matter. Shri. Muley, learned counsel for the applicant states that if the complainant applied to the Court of Magistrate should decide the application after hearing the accused. This would be unnecessary. It is clarified that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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