- (1.) By the instant criminal miscellaneous petition under Section 482 Criminal Procedure Code the order dated 29.09.2008 passed by Sessions Judge, Bikaner (for short "the revisional court") in Criminal Revision Petition No.33/2008 has been challenged by the petitioner whereby the revisional court has maintained the order taking cognizance dated 07.09.2007 passed by Chief Judicial Magistrate, Bikaner (for short "the trial court") in criminal Case No.543/2007. Heard learned counsel for the parties.
(2.) Learned counsel for the petitioner submits that the trial court has no jurisdiction to entertain and try the complaint filed by the respondent No.2 M/s. Shriyam Financial Pvt. Ltd. under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act of 1881 "): According to learned counsel for the petitioner, from the averments made in the complaint filed by the respondent No.2, it is clear that the cause of action has arose to the complaint at Sikar and not at Bikaner. In Para 4 of the complaint, it has specifically been stated that the petitioner, at Sikar Branch, issued two cheques No.20472, 20473 amounting to Rs.63,000/-, 50,000/- in favour of the respondent-complainant. On the presentation of the said cheques to the Bank at Sikar i.e. State Bank of Bikaner & Jaipur, Branch Sikar, it were dishonoured and returned unpaid. Thereafter, the complainant received the intimation from the Punjab National Bank, Branch Sikar about the dishonour of the cheque. The cheques were dishonoured for want of sufficient fund of the account holder. Thus, according to learned counsel for the petitioner, the jurisdiction to try the case is at Sikar and not at Bikaner. Learned counsel has relied on a decision of Hon'ble Supreme Court in Harman Electronics (P) Ltd. (M/s.) Vs. M/s. National Panasonic India Ltd, 2009 1 CivCC 464wherein the Hon'ble Supreme Court considering the controversy on identical facts held that where the parties enter into transaction or the transactions were carried out or the cheque was issued and presented, the court would have territorial jurisdiction.
(3.) In para 12, 13 and 14 of the reports, the Hon'ble Supreme Court observed as under:- 12. Indisputedly, the parties had been carrying on business at Chandigarh. The Head office of the complainant-respondent may be at Delhi but it has a branch office at Chandigarh. It is not in dispute that the transactions were carried on only from Chandigarh. It is furthermore not in dispute that the cheque was issued and presented at Chandigarh. The complaint petition is totally silent as to whether the said cheque was presented at Delhi. As indicated hereinbefore, the learned counsel appearing on behalf of the complainant-respondent contended that in fact the cheque was put in a drop box but as the payment was to be obtained from the Delhi Bank, it was sent to Delhi. In support of the said contention, a purported certificate issued by the Citi Bank NA has been enclosed with the counter affidavit, which reads as under-"This is to confirm that M/s. National Panasonic India Pvt. Ltd. (NPI) having registered office at AB-11, Community Centre, Safdarjung Enclave, New Delhi- 110029 are maintaining a Current Account No.2431009 with our Bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi-110001 only and not at any other place in India including Chandigarh. Further confirmed that CITI bank has provided the facility for collection of Cheques/Demand Drafts from branches of NPI located at various places/cities in India. However, all amounts of cheques/Demand drafts so collected on behalf of National Panasonic India Private Limited are forwarded and debited/credited to the aforesaid Current Account No.2431009 with our Bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi-110001." 13. The complaint petition does not show that the cheque was presented at Delhi. It is absolutely silent in that regard. The facility for collection of the cheque admittedly was available at Chandigarh and the said facility was availed of. The certificate dated 24.06.2003, which was not produced before the learned Court taking cognizance, even if taken into consideration does not show that the cheque was presented at the Delhi Branch of the Citi Bank. We, therefore, have no other option but to presume that the cheque was presented at Chandigarh. Indisputably, the dishonour of the cheque also took place at Chandigarh. The only question, therefore, which arises for consideration is that as to whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instruments Act. 14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clause (b) and (c) of the proviso to Section 138, therefore, must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would.";