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TMI Blog2018 (3) TMI 1959X X X X Extracts X X X X X X X X Extracts X X X X ..... Case No. 1140 of 2014 M/s. Preeti Garments through its proprietor Sri Ram Das v. Surendra Banjara was filed u/s. 138 of Negotiable Instruments Act. It was mentioned in the complaint that cheque Nos. 338060, 338061 and 338062 dated 15/06/2014, 10/07/2014 and 05/08/2014 respectively were dishonoured which led the complainant to present the complaint because on these cheques being presented by the complainant, the bank issued three Memorandums dated 23/08/2014 stating therein that payment of these cheques was not being made because of insufficient amount being in the account of the drawer. Thereafter the opposite party-accused was sent a legal notice dated 01/10/2014 along with receipt of registry dated 01/10/2014 and, thereafter, the complaint was presented in the Court on 24/10/2014 against the opposite party-accused. The learned Court of Magistrate has recorded in its order that the following terms and conditions were necessary to be complied with for filing a complaint: (a) the cheque is presented before the bank within 6 months from the date of its issuance; (b) the payee or the holder in due course, as the case may be, makes a demand for the payment of the said amount of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the drawer, information regarding which was dispatched by the bank on 20/09/2014. When the complainant received the information about these cheques having been dishonoured, he contacted opposite party No. 2- accused on phone and asked him to make the payment, but he was not paid the said amount, as a result of which he issued a notice dated 01/10/2014 to the opposite party No. 2-accused demanding the payment of the said amount. But even after service of the said notice upon opposite party No. 2- accused, he did not make the payment within 15 days, which compelled him to present the complaint. In support of his version, besides his affidavit, all the three original cheques, three bank memos, notice dated 01/10/2014, receipt of registry and registered envelope, addressed to the opposite party No. 2- accused, along with acknowledgement receipt, were filed. It is recorded in the said judgment that the Magistrate dismissed the complaint holding it to be not maintainable because the notice was not issued by the revisionist- complainant to the opposite party No. 2- accused within one month of the date when the cheques were dishonoured which was mandate of law, rather the notice was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nour of cheque on 20/09/2014. 5. The learned Revisional Court has also mentioned that for filing a complaint under Section 138 of the NI Act, the court has to take into consideration the satisfaction of three necessary ingredients, i.e., (i) there should be legally enforceable debt against the accused; (ii) for the entire and real satisfaction of the whole amount of debt, a cheque ought to be issued from the account of the banker; and (iii) the cheque ought to be dishonoured on account of insufficiency of amount in the account. In case these three ingredients are satisfied, a complaint may be filed under Section 138 of the NI Act. 6. The learned revisional Court has recorded in its judgment that from the perusal of the documents, it transpires that the opposite party No. 2- accused had issued three post dated cheques in favour of revisionist- complainant of an amount of Rs. 99,00,000/- lakhs, i.e., dated 15/06/2014, 10/07/2014 and 05/08/2014, which is indicative of the fact that the opposite party No. 2- accused had legally enforceable debt to be paid to the revisionist- complainant. The evidence also reveals that all these cheques were issued by the opposite party No. 2- accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as mentioned that bank had given information about dishonour of cheque on 20/09/2014 and not before that. The learned appellate Court held that there was no reason for disbelieving the revisionist- complainant. In case, the contention of the opposite party No. 2- accused is that the revisionist- complainant had been provided information about dishonour of cheque on 23/08/2014, evidence could be led by him in this regard at the time of recording evidence. Simply because in the memorandums of bank, the date of information being sent to the revisionist- complainant is recorded as 23/08/2014, it could not be held that the revisionist-complainant had received the said information on the said date. It is held that at this stage, till the denial comes of this fact, whatever has been mentioned in paragraph six of the affidavit of the revisionist- complainant, has to be taken to be correct prima facie that the information regarding dishonour of cheque was received by him on 20/09/2014. With this analysis the learned appellate Court has held that all the three necessary ingredients which were required to be complied with for filing the complaint under Section 138 of the NI Act were satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be encashed and were returned to the opposite party No. 2-complainant with the remark (fund insufficient) on 23.8.2014 with memos on 20.9.2014. After the receipt of information regarding dishonour of the aforesaid cheques, the opposite party No. 2- complainant requested the revisionist- accused to pay the said amount but he finally refused to pay the same on 30.9.2014. Thereafter, the opposite party No. 2- complainant sent a legal notice to the revisionist-accused on 1.10.2014 through his counsel by a registered post but revisionist- accused did not receive the same and the same was returned with false endorsement. The real fact was that the revisionist was running business of clothes in Hyderabad and on 20.2.2014, he came to his village to solemnize the marriage of his son. At that time he was carrying documents in relation to business and two cheque books were in his bag, which contained only one cheque signed by him. After the marriage of his son, the revisionist- accused came to know that two cheque had got mis-placed from his cheque books. Opposite party No. 2- complainant was a relative of the revisionist- accused, who was to come in the marriage of his son. The opposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount much beyond Rs. 50,000/-, hence, the revision should be allowed and the impugned order dated 16.10.2015 passed by the Sessions Judge, Aligarh in Criminal Revision No. 494 of 2015 should be set aside and order dated 16.4.2015 passed by the Judicial Magistrate, Court No. 2, Aligarh should be restored. 9. In counter affidavit the opposite party No. 2- complainant, in rebuttal, has mentioned that the revisionist- accused was in business relationship since the year 2012, who issued the referred three post dated cheques of different amounts against the purchase of material made by him and the said cheques, were dishonoured and information to this effect was given by the concerned bank on 20.9.2014. Thereafter, the opposite party No. 2- complainant sent legal notice on 1.10.2014 through his counsel, which was not accepted by the revisionist- accused and, thereafter, the present proceeding was initiated before the competent court. 10. The sole ground set up by the opposite party No. 2-complainant is that the case was not maintainable as the legal notice was not given to the revisionist- accused within thirty days of receiving information about dishonour of cheques. Against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that does not mean that information regarding the same was given to opposite party No. 2-complainant the same day. In fact the information of the said dishonour of cheque given by concerned bank was received by opposite party No. 2/Firm- complainant only on 20.9.2014., hence, the order of learned revisional court is absolutely perfect. The ground of jurisdiction was not earlier raised by the revisionist- accused before the court below. The cheques in question being issued in Aligarh and dishonoured by the bank situated in Aligarh, the cause of Action has arisen at Aligarh. 11. In rejoinder Affidavit, the revisionist- accused has stated that soon after the knowledge of cheques having been stolen, he gave information at police station Jawan, District Aligarh on 5.3.2014 and also, thereafter, gave an application to S.S.P. Aligarh on 22.9.2014. Thereafter, he filed an Application No. 1132 of 2014 under Section 156(3) Cr.P.C. in the court of A.C.J.M. Court No. 2, Aligarh against opposite party No. 2-complainant and seven others on 10.10.2014. The application was treated by the court as a complaint vide order dated 25.11.2014, in which the statement of the revisionist- accused has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,- (a) 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 the account, is situated; or (b) 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 account, is situated. Explanation.- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account." 16. Clause (2) of the above Section 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 cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que, and accordingly the JMFC at the place where this occurs is ordinarily where the Complaint must be filed, entertained and tried. The cognizance of the crime by the JMFC at that place however, can be taken only when the concomitants or constituents contemplated by the Section concatenate with each other. We clarify that the place of the issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial jurisdiction of the complaints even though non-compliance therewith will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general of the NI Act. The vindication of this view is duly manifested by the decisions and conclusion arrived at by the High Courts even in the few cases that we shall decide by this Judgment. We clarify that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situs where the Section 138 Complaint is to be filed is not of his choosing. The territorial jurisdiction is rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. In the case at hand, it has been mentioned by the opposite party No. 2 in paragraph 21 of the counter affidavit that the cheques in question having been issued in Aligarh and having been dishonoured by the bank situated in Aligarh, cause of action was bound to arise in Aligarh. It has come on record that all the three memorandums of dishonour of cheques were issued by ICICI bank Branch Jhandewalan Bag Extension, New Delhi, in which the M/s. Preeti Garments, New Delhi was informed that the said cheques were being returned due to insufficient funds. 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 amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any infirmity and would be held to have been issued within thirty days. 23. In this regard, the reliance is placed by the learned counsel for the opposite party No. 2- complainant on Kamlesh Kumar V. State of Bihar and another, 2014 (2) SCC 424. Paragraph 13 of the said judgment is relevant, which is reproduced hereinbelow:- "13. The crucial question is as to on which date the complainant received the information about the dishonour of the cheque? As per the appellant, the respondent complainant received the information about the dishonour of the cheque on 10.11.2008. However, the respondent complainant has disputed the same. However, we would like to add that at the time of arguments the aforesaid submission of the appellant was not refuted. After the judgment was reserved, the complainant has filed the affidavit alleging therein that he received the bank memo of the bouncing of cheque on 17.11.2008 and therefore, legal notice sent on 17.12.2008 is within the period 30 days from the date of information." 24. It is apparent from the above that the court had held that normally it would have called upon the parties to prove their respective versions before the trial court for le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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