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TMI Blog2020 (12) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... The alleged cheque was presented for collection before the Indian Bank, Madras High Court Branch, whereas the complaint has been lodged before the learned Judicial Magistrate I, Chengalpattu, without any jurisdiction. Therefore the complaint is liable to be quashed for lack of jurisdiction. He also relied upon the judgment reported in (2016) 2 SCC 75 in the case of Bridgestone India Private Limited Vs. Inderpal Singh in this regard. He further submitted that the statutory notice issued by the respondent did not fulfil the procedures laid down under Section 138 of Negotiable Instruments Act. The notice is a defective one and the seven days time has been given for the repayment, instead of 15 days as contemplated under the Act. 2.1. He further submitted that the respondent is an Advocate and misused the fiduciary relationship with his client and the continuation of the above complaint is harassment to the petitioner for choosing such a person for defending his case. He further submitted that the alleged cheque was issued as security for the loan borrowed by the petitioner herein. More over, the petitioner and the respondent are having relationship only as Advocate and client. Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of the amount, he issued a cheque for a sum of Rs. 9,45,000/- and the same was presented for collection before the Indian Bank, High Court branch, Chennai, and it was returned for the reason that "Exceeds Arrangements". Hence the complaint. 6. On perusal of the notice issued by the respondent/defacto complainant dated 27.08.2019, the respondent stated that the petitioner borrowed a sum of Rs. 24 lakhs with interest of 24% per annum. Further the respondent demanded the petitioner to pay the cheque amount within the period of seven days from the date of receipt of the notice. It is relevant to extract the provision under Section 138(c) of Negotiable Instruments Act as follows :- "138(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Accordingly, the respondent ought to have asked for payment of the cheque amount within a period of 15 days. Whereas the respondent issued notice asking the petitioner to repay the cheque amount within a period of seven days. Therefore, the statutory notice did not fulfill the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 138 N. I. Act, a cheque must have been drawn by the accused on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part, of any debt or other liability due. That means, the cheque must have been issued in discharge of debt or other liability wholly or in part. The cheque given for any other reasons not for the satisfaction of any debt or other liability, even if it is returned unpaid-, will not meet with penal consequences. 14. Case of the complainant is that on behalf of the accused, he has filed claim petitions in M. C. O. P. Nos. 2339 of 1992 and 246 of 1993. Two civil cases were also filed. There is nothing to show that the complainant/Advocate himself has paid the stamp duty and bore the legal fees. The complainant has not produced any agreement showing as to what was the arrangement between him and the accused, as to how much is the fee payable and whether the accused agreed for payment of stamp duty by her counsel itself. In the absence of any agreement, Ex. P-1 cheque cannot be said to have been issued for the purpose of discharge of any substantial debt or lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advocate has to independently prove the contract. Claim based on percentage of subject matter in litigation cannot be the basis of a complaint under Section 138 of the Act. 17. In view of the above, the claim of the respondent advocate being against public policy and being an act of professional misconduct, proceedings in the complaint filed by him have to be held to be abuse of the process of law and have to be quashed." In the above judgment the Hon'ble Supreme Court of India held that the action of the Advocate is against public policy and an act of professional misconduct. The proceedings under his complaint is felt to be abuse of process of law and have to be quashed. In the case on hand, when there is a specific bar for doing money lending business that too with his own client, the act of the respondent is amount to professional misconduct. Therefore, the entire proceedings initiated as against the petitioner is nothing but clear abuse of process of law and the complaint itself is liable to be quashed. 9. That apart, the alleged cheque was presented before the Indian Bank, High Court branch at Chennai, whereas the complaint lodged by the respondent before the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be inserted, namely- '142-A.Validation for transfer of pending cases.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or directions of any court, all cases transferred to the court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (6 of 2015), shall be deemed to have been transferred under this Ordinance, as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub- section (2) of Section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of Section 142 or the case has been transferred to that court under sub-section (1), and such complaint is pending in that court, all subsequent complaints arising out of Section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia, in the territorial jurisdiction of the court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142-A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod case [Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 : (2014) 3 SCC (Cri) 673] , would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonour of the cheque in the present case arises. 16. Since Cheque No. 1950, in the sum of Rs. 26,958, drawn on Union Bank of India, Chandigarh, dated 2-5-2006, was presented for encashment at IDBI Bank, Indore, which intimated its dishonour to the appellant on 4-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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