Sec.138 of N.I. Act - Cheque drawn on Sydicate Bank , City Market Branch , Bangalore - Cheque presented for collection at Gurgoan ING Vysya Bank - Cheque dishonoured - complaint at Gurgaon - Transfer O.P. - Apex court held that Although the complaint does not claim jurisdiction for the Court at Gurgaon on the ground that the cheque was presented for collection there yet in the Counter affidavit, the respondent has tried to justify the
filing of the complaint on that ground. Dashrath Rupsingh’s case (supra), however, does not, as mentioned above, accept presentation of a cheque to be a valid presentation for purposes of limitation within the meaning of Section 138 unless the same is to the drawee bank.
That is the view taken even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609.
On either ground, therefore, the Courts in Gurgaon could not assume jurisdiction.
Following the decisions in Dashrath Rupsingh’s and Ishar Alloy Steels cases (supra), we have no hesitation in allowing the petition and directing transfer of the complaint to the competent Court to entertain the same.=
The petitioner appears to have borrowed a loan of Rs.15,00,000/-
(Rupees Fifteen Lakh) for business purposes from the respondent-company.
A
cheque allegedly issued in partial repayment of the loan amount and drawn
on the Syndicate Bank, City Market Branch, Bangalore, when presented for
encashment to ING Vysya Bank, Gurgaon appears to have been dishonoured
resulting in the issue of statutory notices to the petitioners and eventual
filing of a complaint before the Judicial Magistrate, First Class at
Gurgaon under Section 138 of The Negotiable Instruments Act, 1881.
The
Magistrate has taken cognizance and summoned the petitioners for appearance
to face the trial.
Petitioners have, in that backdrop, filed the present
transfer petition seeking transfer of the complaint afore-mentioned from
Gurgaon to the competent Court at Bangalore.=
Apex court held that
We say so because in Harman Electronics (P) Ltd. v. National
Panasonic India (P) Ltd. (2009) 1 SCC 720 this Court examined a similar
question and clearly ruled that a unilateral act on the part of the
complainant of issuing a notice from any part of the country would not vest
the Court from within whose territorial limits the notice has been issued
with the power to entertain a complaint.
That judgment has been affirmed by
a three-judge bench of this Court in Dashrath Rupsingh Rathod v. State of
Maharashtra & Anr. Criminal Appeal No.2287 of 2009 delivered on 1st August,
2014.
This Court has in that case held that presentation of the cheque at a
place of the choice of the complainant or issue of a notice from any such
place do not constitute ingredients of the offence under Section 138 and
cannot, therefore, confer jurisdiction upon the Court from where such acts
are performed.
Although the complaint does not claim jurisdiction for the
Court at Gurgaon on the ground that the cheque was presented for collection
there yet in the Counter affidavit, the respondent has tried to justify the
filing of the complaint on that ground.
Dashrath Rupsingh’s case (supra),
however, does not, as mentioned above, accept presentation of a cheque to
be a valid presentation for purposes of limitation within the meaning of
Section 138 unless the same is to the drawee bank.
That is the view taken
even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609.
On either ground, therefore, the Courts in Gurgaon could not assume
jurisdiction.
Following the decisions in Dashrath Rupsingh’s and Ishar
Alloy Steels cases (supra), we have no hesitation in allowing the petition
and directing transfer of the complaint to the competent Court to entertain
the same.
2014- Aug. Part - http://judis.nic.in/supremecourt/filename=41808
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRL.) NO.403 OF 2013
Sree Mahesh Stationaries & Anr. …Petitioners
Vs.
Indiabulls Financial Services Ltd. …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. In this petition under Section 406 of the Cr.P.C., the petitioners
seek transfer of Criminal Complaint No.14089 of 2009 from the Court of
Judicial Magistrate, First Class, Gurgaon, Haryana to the Court of
competent jurisdiction at Bangalore.
2. The petitioner appears to have borrowed a loan of Rs.15,00,000/-
(Rupees Fifteen Lakh) for business purposes from the respondent-company. A
cheque allegedly issued in partial repayment of the loan amount and drawn
on the Syndicate Bank, City Market Branch, Bangalore, when presented for
encashment to ING Vysya Bank, Gurgaon appears to have been dishonoured
resulting in the issue of statutory notices to the petitioners and eventual
filing of a complaint before the Judicial Magistrate, First Class at
Gurgaon under Section 138 of The Negotiable Instruments Act, 1881. The
Magistrate has taken cognizance and summoned the petitioners for appearance
to face the trial. Petitioners have, in that backdrop, filed the present
transfer petition seeking transfer of the complaint afore-mentioned from
Gurgaon to the competent Court at Bangalore.
3. Petitioners’ case, as is evident from the averments made in the
transfer petition, is that the Courts at Gurgaon have no jurisdiction to
entertain the complaint specially when the cheque in question was issued
and dishonoured at Bangalore and the offence, if any, was committed only at
Bangalore. Issue of statutory notices to the petitioners from Gurgaon also
does not confer jurisdiction upon the Courts concerned or justify
continuance of the proceedings at Gurgaon.
4. Having heard learned counsel for the parties, we are inclined to
allow this petition. We say so because in para 7 of the complaint filed by
the respondent-complainant the reason for filing the complaint at Gurgaon
has been set out, thus:
“That the cause of action for filing the present complaint arose when the
aforesaid cheque was issued to the complainant company when the intimation
regarding dishonour of the said cheque was received when the aforesaid
legal notice under Section 138 of the N.I. Act was sent to the accused and
on the failure of the accused to make payment despite being served with the
said notice within the stipulated period of 15 days. The cause of action
is still subsisting and continuing. This Hon’ble Court has jurisdiction to
take cognizance of the offence as the cause of action arose within the
jurisdiction of this Hon’ble Court. The complaint is within the period of
limitation as per law.”
5. It is evident from the above that the only reason the complainant
claims jurisdiction for the Courts at Gurgaon is the fact that the
complainant-respondent had issued the statutory notices relating to the
dishonour of the cheque from Gurgaon. We do not think that issue of a
statutory notice can by itself confer jurisdiction upon the Court to take
cognizance of an offence under Section 138 of The Negotiable Instruments
Act. We say so because in Harman Electronics (P) Ltd. v. National
Panasonic India (P) Ltd. (2009) 1 SCC 720 this Court examined a similar
question and clearly ruled that a unilateral act on the part of the
complainant of issuing a notice from any part of the country would not vest
the Court from within whose territorial limits the notice has been issued
with the power to entertain a complaint. That judgment has been affirmed by
a three-judge bench of this Court in Dashrath Rupsingh Rathod v. State of
Maharashtra & Anr. Criminal Appeal No.2287 of 2009 delivered on 1st August,
2014. This Court has in that case held that presentation of the cheque at a
place of the choice of the complainant or issue of a notice from any such
place do not constitute ingredients of the offence under Section 138 and
cannot, therefore, confer jurisdiction upon the Court from where such acts
are performed. Although the complaint does not claim jurisdiction for the
Court at Gurgaon on the ground that the cheque was presented for collection
there yet in the Counter affidavit, the respondent has tried to justify the
filing of the complaint on that ground. Dashrath Rupsingh’s case (supra),
however, does not, as mentioned above, accept presentation of a cheque to
be a valid presentation for purposes of limitation within the meaning of
Section 138 unless the same is to the drawee bank. That is the view taken
even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609. On
either ground, therefore, the Courts in Gurgaon could not assume
jurisdiction. Following the decisions in Dashrath Rupsingh’s and Ishar
Alloy Steels cases (supra), we have no hesitation in allowing the petition
and directing transfer of the complaint to the competent Court to entertain
the same.
6. We accordingly allow this petition and transfer Criminal Complaint
No.14089 of 2009 titled Indiabulls Financial Services Ltd. v. Sree Mahesh
Stationaries from the Court of Judicial Magistrate, First Class, Gurgaon,
Haryana to the Court of competent jurisdiction of Chief Metropolitan
Magistrate at Bangalore who shall try the case himself or transfer the same
to any other Court competent to try the same. No costs.
………………………………….…..…J.
(T.S. THAKUR)
…………………………..……………..J.
New Delhi, (C. NAGAPPAN)
August 5, 2014
filing of the complaint on that ground. Dashrath Rupsingh’s case (supra), however, does not, as mentioned above, accept presentation of a cheque to be a valid presentation for purposes of limitation within the meaning of Section 138 unless the same is to the drawee bank.
That is the view taken even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609.
On either ground, therefore, the Courts in Gurgaon could not assume jurisdiction.
Following the decisions in Dashrath Rupsingh’s and Ishar Alloy Steels cases (supra), we have no hesitation in allowing the petition and directing transfer of the complaint to the competent Court to entertain the same.=
The petitioner appears to have borrowed a loan of Rs.15,00,000/-
(Rupees Fifteen Lakh) for business purposes from the respondent-company.
A
cheque allegedly issued in partial repayment of the loan amount and drawn
on the Syndicate Bank, City Market Branch, Bangalore, when presented for
encashment to ING Vysya Bank, Gurgaon appears to have been dishonoured
resulting in the issue of statutory notices to the petitioners and eventual
filing of a complaint before the Judicial Magistrate, First Class at
Gurgaon under Section 138 of The Negotiable Instruments Act, 1881.
The
Magistrate has taken cognizance and summoned the petitioners for appearance
to face the trial.
Petitioners have, in that backdrop, filed the present
transfer petition seeking transfer of the complaint afore-mentioned from
Gurgaon to the competent Court at Bangalore.=
Apex court held that
We say so because in Harman Electronics (P) Ltd. v. National
Panasonic India (P) Ltd. (2009) 1 SCC 720 this Court examined a similar
question and clearly ruled that a unilateral act on the part of the
complainant of issuing a notice from any part of the country would not vest
the Court from within whose territorial limits the notice has been issued
with the power to entertain a complaint.
That judgment has been affirmed by
a three-judge bench of this Court in Dashrath Rupsingh Rathod v. State of
Maharashtra & Anr. Criminal Appeal No.2287 of 2009 delivered on 1st August,
2014.
This Court has in that case held that presentation of the cheque at a
place of the choice of the complainant or issue of a notice from any such
place do not constitute ingredients of the offence under Section 138 and
cannot, therefore, confer jurisdiction upon the Court from where such acts
are performed.
Although the complaint does not claim jurisdiction for the
Court at Gurgaon on the ground that the cheque was presented for collection
there yet in the Counter affidavit, the respondent has tried to justify the
filing of the complaint on that ground.
Dashrath Rupsingh’s case (supra),
however, does not, as mentioned above, accept presentation of a cheque to
be a valid presentation for purposes of limitation within the meaning of
Section 138 unless the same is to the drawee bank.
That is the view taken
even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609.
On either ground, therefore, the Courts in Gurgaon could not assume
jurisdiction.
Following the decisions in Dashrath Rupsingh’s and Ishar
Alloy Steels cases (supra), we have no hesitation in allowing the petition
and directing transfer of the complaint to the competent Court to entertain
the same.
2014- Aug. Part - http://judis.nic.in/supremecourt/filename=41808
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRL.) NO.403 OF 2013
Sree Mahesh Stationaries & Anr. …Petitioners
Vs.
Indiabulls Financial Services Ltd. …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. In this petition under Section 406 of the Cr.P.C., the petitioners
seek transfer of Criminal Complaint No.14089 of 2009 from the Court of
Judicial Magistrate, First Class, Gurgaon, Haryana to the Court of
competent jurisdiction at Bangalore.
2. The petitioner appears to have borrowed a loan of Rs.15,00,000/-
(Rupees Fifteen Lakh) for business purposes from the respondent-company. A
cheque allegedly issued in partial repayment of the loan amount and drawn
on the Syndicate Bank, City Market Branch, Bangalore, when presented for
encashment to ING Vysya Bank, Gurgaon appears to have been dishonoured
resulting in the issue of statutory notices to the petitioners and eventual
filing of a complaint before the Judicial Magistrate, First Class at
Gurgaon under Section 138 of The Negotiable Instruments Act, 1881. The
Magistrate has taken cognizance and summoned the petitioners for appearance
to face the trial. Petitioners have, in that backdrop, filed the present
transfer petition seeking transfer of the complaint afore-mentioned from
Gurgaon to the competent Court at Bangalore.
3. Petitioners’ case, as is evident from the averments made in the
transfer petition, is that the Courts at Gurgaon have no jurisdiction to
entertain the complaint specially when the cheque in question was issued
and dishonoured at Bangalore and the offence, if any, was committed only at
Bangalore. Issue of statutory notices to the petitioners from Gurgaon also
does not confer jurisdiction upon the Courts concerned or justify
continuance of the proceedings at Gurgaon.
4. Having heard learned counsel for the parties, we are inclined to
allow this petition. We say so because in para 7 of the complaint filed by
the respondent-complainant the reason for filing the complaint at Gurgaon
has been set out, thus:
“That the cause of action for filing the present complaint arose when the
aforesaid cheque was issued to the complainant company when the intimation
regarding dishonour of the said cheque was received when the aforesaid
legal notice under Section 138 of the N.I. Act was sent to the accused and
on the failure of the accused to make payment despite being served with the
said notice within the stipulated period of 15 days. The cause of action
is still subsisting and continuing. This Hon’ble Court has jurisdiction to
take cognizance of the offence as the cause of action arose within the
jurisdiction of this Hon’ble Court. The complaint is within the period of
limitation as per law.”
5. It is evident from the above that the only reason the complainant
claims jurisdiction for the Courts at Gurgaon is the fact that the
complainant-respondent had issued the statutory notices relating to the
dishonour of the cheque from Gurgaon. We do not think that issue of a
statutory notice can by itself confer jurisdiction upon the Court to take
cognizance of an offence under Section 138 of The Negotiable Instruments
Act. We say so because in Harman Electronics (P) Ltd. v. National
Panasonic India (P) Ltd. (2009) 1 SCC 720 this Court examined a similar
question and clearly ruled that a unilateral act on the part of the
complainant of issuing a notice from any part of the country would not vest
the Court from within whose territorial limits the notice has been issued
with the power to entertain a complaint. That judgment has been affirmed by
a three-judge bench of this Court in Dashrath Rupsingh Rathod v. State of
Maharashtra & Anr. Criminal Appeal No.2287 of 2009 delivered on 1st August,
2014. This Court has in that case held that presentation of the cheque at a
place of the choice of the complainant or issue of a notice from any such
place do not constitute ingredients of the offence under Section 138 and
cannot, therefore, confer jurisdiction upon the Court from where such acts
are performed. Although the complaint does not claim jurisdiction for the
Court at Gurgaon on the ground that the cheque was presented for collection
there yet in the Counter affidavit, the respondent has tried to justify the
filing of the complaint on that ground. Dashrath Rupsingh’s case (supra),
however, does not, as mentioned above, accept presentation of a cheque to
be a valid presentation for purposes of limitation within the meaning of
Section 138 unless the same is to the drawee bank. That is the view taken
even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609. On
either ground, therefore, the Courts in Gurgaon could not assume
jurisdiction. Following the decisions in Dashrath Rupsingh’s and Ishar
Alloy Steels cases (supra), we have no hesitation in allowing the petition
and directing transfer of the complaint to the competent Court to entertain
the same.
6. We accordingly allow this petition and transfer Criminal Complaint
No.14089 of 2009 titled Indiabulls Financial Services Ltd. v. Sree Mahesh
Stationaries from the Court of Judicial Magistrate, First Class, Gurgaon,
Haryana to the Court of competent jurisdiction of Chief Metropolitan
Magistrate at Bangalore who shall try the case himself or transfer the same
to any other Court competent to try the same. No costs.
………………………………….…..…J.
(T.S. THAKUR)
…………………………..……………..J.
New Delhi, (C. NAGAPPAN)
August 5, 2014
