PRABHU DAYAL MODI Vs. EURO DEVELOPERS PVT LTD

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard the learned counsel for the parties.

(2.) Petitioner and his wife are the owners of the plot of land situated at Jaipur. On 24.4.06 an agreement was entered into between the respondent no.l/complainant on one hand and the petitioner and his wife on the other. As per that agreement, the petitioner had given development rights over the said land to the respondent/complainant for a consideration of Rs.2.5 crs. Out of the consideration amount, respondent had made a payment of Rs.35,01,000/-. The certain terms of the contract could not be fulfilled and the agreement was cancelled. As to who was responsible for the noncompliance of the terms of the contract is not relevant for the purpose of deciding this matter. As the agreement was cancelled, accused/petitioner issued a cheque of Rs.35,01,000/- in favour of the respondent/ complainant. Cheque was deposited with the complainant's banker at Juhu Branch, Mumbai. The cheque was dishonoured and thereafter notice was issued by the respondent to the petitioner from Mumbai. In spite of service of notice, payment was not made within the stipulated period, therefore, the respondent filed a complaint under Section 138 of the Negotiable Instruments Act against the present petitioner and his wife before the Metropolitan Magistrate 44th Court, Andheri, Mumbai where it was registered as Criminal Case No. 1045/ SS/2007. The learned Magistrate issued process under Section 138 of the Negotiable Instruments Act against the accused no.l, who is the present petitioner. Process was not issued against the wife.

(3.) Petitioner challenged the issuance of process by filing Criminal Revision Application No.286/08. According to him, he is resident of Jaipur. Respondent has also a branch office at Jaipur. Development agreement dated 24.4.06 was entered into and executed at Jaipur. Payment of Rs.35,01,000/-was made by the respondent no.l to the petitioner at Jaipur. The land to be developed is situated at Jaipur. But as the certain terms of the contract could not be fulfilled for one or the other reasons, the agreement was cancelled at Jaipur and the cheque in dispute was drawn and issued by the present petitioner at Jaipur. Cheque was drawn against the Bombay Mercantile Co-op. Bank, Jaipur Branch, where the petitioner has account. Cheque was presented at the Jaipur branch of Bombay Mercantile Co-operative Bank and was dishonoured there. Thus, the whole of the transaction had taken place at Jaipur and no part of the transaction had taken place at Mumbai. It is contended that merely because the respondent no.l, who has head office at Mumbai and Branch office at Jaipur, deposited the cheque with its banker, i.e., HDFC Bank, Juhu branch, Mumbai for presentation to the drawee bank and because notice was issued by the respondent no.l from Mumbai, the Magistrate at Mumbai does not get jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act, therefore, it was prayed that process issued by the Metropolitan Magistrate Mumbai be quashed and the complaint be directed to be returned to the complainant/respondent no.l for the presentation before the Court having jurisdiction. Application was naturally opposed. The learned Additional Sessions Judge rejected the revision application observing that since the cheque was presented at Mumbai and notice demanding payment was also issued at Mumbai, the learned Magistrate at Mumbai has jurisdiction to try the case. That order is challenged in the present petition.