(i) An offence under Section 138 of the Negotiable Instruments Act, 1881
is committed no sooner a cheque drawn by the accused on an account being
maintained by him in a bank for discharge of debt/liability is returned
unpaid for insufficiency of funds or for the reason that the amount exceeds
the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden under Section 142
of the Act except upon a complaint in writing made by the payee or holder
of the cheque in due course within a period of one month from the date the
cause of action accrues to such payee or holder under clause (c) of proviso
to Section 138.
(iii) The cause of action to file a complaint accrues to a
complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank within a
period of six months from the date of its issue.
(b) If the complainant has demanded payment of cheque amount within thirty
days of receipt of information by him from the bank regarding the dishonour
of the cheque and
(c) If the drawer has failed to pay the cheque amount within fifteen days
of receipt of such notice.
(iv) The facts constituting cause of action do not constitute the
ingredients of the offence under Section 138 of the Act.
(v) The proviso to Section 138 simply postpones/defers institution of
criminal proceedings and taking of cognizance by the Court till such time
cause of action in terms of clause (c) of proviso accrues to the
complainant.
(vi) Once the cause of action accrues to the complainant, the jurisdiction
of the Court to try the case will be determined by reference to the place
where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C applies to
cases under Section 138 of the Negotiable Instruments Act. Prosecution in
such cases can, therefore, be launched against the drawer of the cheque
only before the Court within whose jurisdiction the dishonour takes place
except in situations where the offence of dishonour of the cheque
punishable under Section 138 is committed along with other offences in a
single transaction within the meaning of Section 220(1) read with Section
184 of the Code of Criminal Procedure or is covered by the provisions of
Section 182(1) read with Sections 184 and 220 thereof.
———————————————————————————————————————————————————————-
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2287 OF 2009
Dashrath Rupsingh Rathod …..Appellant
Versus
State of Maharashtra & Anr. …..Respondents
W I T H
CRIMINAL APPEAL NO. 1593 OF 2014
[Arising out of S.L.P.(Crl.)No.2077 of 2009];
CRIMINAL APPEAL NO. 1594 OF 2014
[Arising out of S.L.P.(Crl.)No.2112 of 2009];
CRIMINAL APPEAL NO. 1595 OF 2014
[Arising out of S.L.P.(Crl.)No.2117 of 2009];
CRIMINAL APPEAL NOS. 1596-1600 OF 2014
[Arising out of S.L.P.(Crl.)Nos.1308-1312 of 2009];
CRIMINAL APPEAL NO.1601 OF 2014
[Arising out of S.L.P.(Crl.)No.3762 of 2012];
CRIMINAL APPEAL NO. 1602 OF 2014
[Arising out of S.L.P.(Crl.)No.3943 of 2012];
CRIMINAL APPEAL NO.1603 OF 2014
[Arising out of S.L.P.(Crl.)No.3944 of 2012]; AND
CRIMINAL APPEAL NO. 1604 OF 2014
[Arising out of S.L.P.(Crl.)No.59 of 2013].
J U D G M E N T
VIKRAMAJIT SEN, J.
Leave granted in Special Leave Petitions. These Appeals raise a legal
nodus of substantial public importance pertaining to Court’s territorial
jurisdiction concerning criminal complaints filed under Chapter XVII of the
Negotiable Instruments Act, 1881 (for short, ‘the NI Act’). This is amply
adumbrated by the Orders dated 3.11.2009 in I.A.No.1 in CC 15974/2009 of
the three-Judge Bench presided over by the then Hon’ble the Chief Justice
of India, Hon’ble Mr. Justice V.S. Sirpurkar and Hon’ble Mr. Justice P.
Sathasivam which SLP is also concerned with the interpretation of Section
138 of the NI Act, and wherein the Bench after issuing notice on the
petition directed that it be posted before the three-Judge Bench.
PRECEDENTS
The earliest and the most often quoted decision of this Court relevant to
the present conundrum is K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7
SCC 510 wherein a two-Judge Bench has, inter alia, interpreted Section 138
of the NI Act to indicate that, “the offence under Section 138 can be
completed only with the concatenation of a number of acts. Following are
the acts which are components of the said offence: (1) Drawing of the
cheque, (2) Presentation of the cheque to the bank, (3) Returning the
cheque unpaid by the drawee bank, (4) Giving notice in writing to the
drawer of the cheque demanding payment of the cheque amount, (5) Failure of
the drawer to make payment within 15 days of the receipt of the notice.”
The provisions of Sections 177 to 179 of the Code of Criminal Procedure,
1973 (for short, ‘CrPC’) have also been dealt with in detail. Furthermore,
Bhaskaran in terms draws a distinction between ‘giving of notice’ and
‘receiving of notice’. This is for the reason that clause (b) of proviso
to Section 138 of the NI Act postulates a demand being made by the payee or
the holder in due course of the dishonoured cheque by giving a notice in
writing to the drawer thereof. While doing so, the question of the receipt
of the notice has also been cogitated upon.
The issuance and the receipt of the notice is significant because in a
subsequent judgment of a Coordinate Bench, namely, Harman Electronics Pvt.
Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1 SCC 720 emphasis has
been laid on the receipt of the notice, inter alia, holding that the cause
of action cannot arise by any act of omission or commission on the part of
the ‘accused’, which on a holistic reading has to be read as ‘complainant’.
It appears that Harman transacted business out of Chandigarh only, where
the Complainant also maintained an office, although its Head Office was in
Delhi. Harman issued the cheque to the Complainant at Chandigarh; Harman
had its bank account in Chandigarh alone. It is unclear where the
Complainant presented the cheque for encashment but it issued the Section
138 notice from Delhi. In those circumstances, this Court had observed
that the only question for consideration was “whether sending of notice
from Delhi itself would give rise to a cause of action for taking
cognizance under the NI Act.” It then went on to opine that the proviso to
this Section “imposes certain further conditions which are required to be
fulfilled before cognizance of the offence can be taken.” We respectfully
agree with this statement of law and underscore that in criminal
jurisprudence there is a discernibly demarcated difference between the
commission of an offence and its cognizance leading to prosecution. The
Harman approach is significant and sounds a discordant note to the
Bhaskaran ratio. Harman also highlights the reality that Section 138 of
the NI Act is being rampantly misused so far as territorial jurisdiction
for trial of the Complaint is concerned. With the passage of time equities
have therefore transferred from one end of the pendulum to the other. It
is now not uncommon for the Courts to encounter the issuance of a notice in
compliance with clause (b) of the proviso to Section 138 of the NI Act from
a situs which bears no connection with the Accused or with any facet of the
transaction between the parties, leave aside the place where the dishonour
of the cheque has taken place. This is also the position as regards the
presentation of the cheque, dishonour of which is then pleaded as the
territorial platform of the Complaint under Section 138 of the NI Act.
Harman, in fact, duly heeds the absurd and stressful situation, fast
becoming common-place where several cheques signed by the same drawer are
presented for encashment and requisite notices of demand are also
despatched from different places. It appears to us that justifiably so at
that time, the conclusion in Bhaskaran was influenced in large measure by
curial compassion towards the unpaid payee/holder, whereas with the passage
of two decades the manipulative abuse of territorial jurisdiction has
become a recurring and piquant factor. The liberal approach preferred in
Bhaskaran now calls for a stricter interpretation of the statute, precisely
because of its misemployment so far as choice of place of suing is
concerned. These are the circumstances which have propelled us to minutely
consider the decisions rendered by two-Judge Benches of this Court.
It is noteworthy that the interpretation to be imparted to Section 138 of
the NI Act also arose before a three-Judge Bench in Shri Ishar Alloy Steels
Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609 close on the heels of
Bhaskaran. So far as the factual matrix is concerned, the dishonoured
cheque had been presented for encashment by the Complainant/holder in his
bank within the statutory period of six months but by the time it reached
the drawer’s bank the aforementioned period of limitation had expired. The
question before the Court was whether the bank within the postulation of
Section 138 read with Sections 3 and 72 of the NI Act was the drawee bank
or the collecting bank and this Court held that it was the former. It was
observed that “non-presentation of the cheque to the drawee bank within the
period specified in the Section would absolve the person issuing the cheque
of his criminal liability under Section 138 of the NI Act, who otherwise
may be liable to pay the cheque amount to the payee in a civil action
initiated under the law. A combined reading of Sections 3, 72 and 138 of
the NI Act would leave no doubt in our mind that the law mandates the
cheque to be presented at the bank on which it is drawn if the drawer is to
be held criminally liable.” Clearly, and in our considered opinion
rightly, the Section had been rendered ‘accused-centric’. This decision
clarifies that the place where a complainant may present the cheque for
encashment would not confer or create territorial jurisdiction, and in this
respect runs counter to the essence of Bhaskaran which paradoxically, in
our opinion, makes actions of the Complainant an integral nay nuclear
constituent of the crime itself.
The principle of precedence should promptly and precisely be paraphrased.
A co-ordinate Bench is bound to follow the previously published view; it is
certainly competent to add to the precedent to make it logically and
dialectically compelling. However, once a decision of a larger Bench has
been delivered it is that decision which mandatorily has to be applied;
whereas a Co-ordinate Bench, in the event that it finds itself unable to
agree with an existing ratio, is competent to recommend the precedent for
reconsideration by referring the case to the Chief Justice for constitution
of a larger Bench. Indubitably, there are a number of decisions by two-
Judge Benches on Section 138 of the NI Act, the majority of which apply
Bhaskaran without noting or distinguishing on facts Ishar Alloy. In our
opinion, it is imperative for the Court to diligently distill and then
apply the ratio of a decision; and the view of a larger Bench ought not to
be disregarded. Inasmuch as the three-Judge Bench in Ishar Alloy has
categorically stated that for criminal liability to be attracted, the
subject cheque has to be presented to the bank on which it is drawn within
the prescribed period, Bhaskaran has been significantly whittled down if
not overruled. Bhaskaran has also been drastically diluted by Harman
inasmuch as it has given primacy to the service of a notice on the Accused
instead of its mere issuance by the Complainant.
In Prem Chand Vijay Kumar v. Yashpal Singh (2005) 4 SCC 417, another two-
Judge Bench held that upon a notice under Section 138 of the NI Act being
issued, a subsequent presentation of a cheque and its dishonour would not
create another ‘cause of action’ which could set the Section 138 machinery
in motion. In that view, if the period of limitation had run out, a fresh
notice of demand was bereft of any legal efficacy. SIL Import, USA v. Exim
Aides Silk Exporters (1999) 4 SCC 567 was applied in which the
determination was that since the requisite notice had been despatched by
FAX on 26.6.1996 the limitation for filing the Section 138 Complaint
expired on 26.7.1996. What is interesting is the observation that “four
constituents of Section 138 are required to be proved to successfully
prosecute the drawer of an offence under Section 138 of the NI Act”
(emphasis supplied). It is also noteworthy that instead of the five
Bhaskaran concomitants, only four have been spelt out in the subsequent
judgment in Prem Chand. The commission of a crime was distinguished from
its prosecution which, in our considered opinion, is the correct
interpretation of the law. In other words, the four or five concomitants
of the Section have to be in existence for the initiation as well as the
successful prosecution of the offence, which offence however comes into
existence as soon as subject cheque is dishonoured by the drawee bank.
Another two-Judge Bench in Shamshad Begum v. B. Mohammed (2008) 13 SCC 77
speaking through Pasayat J this time around applied Bhaskaran and concluded
that since the Section 138 notice was issued from and replied to Mangalore,
Courts in that city possessed territorial jurisdiction. As already noted
above, this view is not reconcilable with the later decision of Harman.
The two-Judge Bench decision in Mosaraf Hossain Khan v. Bhagheeratha Engg.
Ltd. (2006) 3 SCC 658 requires to be discussed in some detail. A Complaint
under Section 138 of the NI Act was filed and cognizance was taken by the
Chief Judicial Magistrate, Birbhum at Suri, West Bengal for the dishonour
of a number of cheques issued by the accused-company which had its
headquarters in Ernakulam, Kerala where significantly the accused-company’s
bank on whom the dishonoured cheques had been drawn was located. Several
judgments were referred to, but not Bhaskaran. The third ingredient in
Bhaskaran, i.e. the returning of the cheque unpaid by the drawee bank, was
not reflected upon. Inasmuch as Mosaraf Hossain refers copiously to the
cause of action having arisen in West Bengal without adverting at all to
Bhaskaran, leave aside the three-Judge Bench decision in Ishar Alloy, the
decision may be seen as per incuriam. Moreover, the concept of forum non
conveniens has no role to play under Section 138 of the NI Act, and
furthermore that it can certainly be contended by the accused-company that
it was justifiable/convenient for it to initiate litigation in Ernakulam.
If Bhaskaran was followed, Courts in Ernakulam unquestionably possessed
territorial jurisdiction. It is, however, important to italicize that
there was an unequivocal endorsement of the Bench of a previously expressed
view that, “where the territorial jurisdiction is concerned the main factor
to be considered is the place where the alleged offence was committed”. In
similar vein, this Court has opined in Om Hemrajani v. State of U.P. (2005)
1 SCC 617, in the context of Sections 177 to 180 CrPC that “for
jurisdiction emphasis is on the place where the offence is committed.”
The territorial jurisdiction conundrum which, candidly is currently in the
cauldron owing to varying if not conflicting ratios, has been cogitated
upon very recently by a two-Judge Bench in Criminal Appeal No.808 of 2013
titled Nishant Aggarwal v. Kailash Kumar Sharma decided on 1.7.2013 and
again by the same Bench in Criminal Appeal No.1457 of 2013 titled Escorts
Limited v. Rama Mukherjee decided on 17.09.2013. Bhaskaran was followed
and Ishar Alloy and Harman were explained. In Nishant the Appellant issued
a post-dated cheque drawn on Standard Chartered Bank, Guwahati in favour of
complainant-respondent. It appears that the Appellant had endeavoured to
create a case or rather a defence by reporting to his bank in Guwahati as
well as to the local police station that ‘one cheque (corresponding to the
cheque in question) was missing and hence payment should be stopped.’ The
Respondent-drawer was a resident of District Bhiwani, Haryana; he presented
the cheque for encashment at Canara Bank, Bhiwani but it was returned
unpaid. The holder then issued a legal notice which failed to elicit the
demanded sum of money corresponding to the cheque value, and thereupon
followed it by the filing of a criminal complaint under Sections 138 and
141 of the NI Act at Bhiwani. The Judicial Magistrate, Bhiwani, vide order
dated 5.3.2011, concluded that the court in Bhiwani did not possess
territorial jurisdiction and he accordingly returned the complaint for
presentation before the proper Court. The five concomitants of Section 138
extracted in Bhaskaran, were reiterated and various paragraphs from it were
reproduced by this Court. Nishant also did not follow Ishar Alloy which,
as already analysed, has concluded that the second Bhaskaran concomitant,
namely, presentation of cheque to the bank refers to the drawee bank and
not the holder’s bank, is not primarily relevant for the determination of
territorial jurisdiction. Nishant distinguished Ishar Alloy on the
predication that the question of territorial jurisdiction had not been
raised in that case. It is axiomatic that when a Court interprets any
statutory provision, its opinion must apply to and be determinate in all
factual and legal permutations and situations. We think that the dictum in
Ishar Alloy is very relevant and conclusive to the discussion in hand. It
also justifies emphasis that Ishar Alloy is the only case before us which
was decided by a three-Judge Bench and, therefore, was binding on all
smaller Benches. We ingeminate that it is the drawee Bank and not the
Complainant’s Bank which is postulated in the so-called second constituent
of Section 138 of the NI Act, and it is this postulate that spurs us
towards the conclusion that we have arrived at in the present Appeals.
There is also a discussion of Harman to reiterate that the offence under
Section 138 is complete only when the five factors are present. It is our
considered view, which we shall expound upon, that the offence in the
contemplation of Section 138 of the NI Act is the dishonour of the cheque
alone, and it is the concatenation of the five concomitants of that Section
that enable the prosecution of the offence in contradistinction to the
completion/commission of the offence.
We have also painstakingly perused Escorts Limited which was also decided
by the Nishant two-Judge Bench. Previous decisions were considered,
eventually leading to the conclusion that since the concerned cheque had
been presented for encashment at New Delhi, its Metropolitan Magistrate
possessed territorial jurisdiction to entertain and decide the subject
Complaint under Section 138 of the NI Act. Importantly, in a subsequent
order, in FIL Industries Ltd. v. Imtiyaz Ahmed Bhat passed on 12th August
2013, it was decided that the place from where the statutory notice had
emanated would not of its own have the consequence of vesting jurisdiction
upon that place. Accordingly, it bears repetition that the ratio in
Bhaskaran has been drastically diluted in that the situs of the notice, one
of the so-called five ingredients of Section 138, has now been held not to
clothe that Court with territorial competency. The conflicting or
incongruent opinions need to be resolved.
JUDICIAL APPROACH ON JURISDICTION
We shall take a short digression in terms of brief discussion of the
approach preferred by this Court in the context of Section 20 of the Code
of Civil Procedure, 1908 (hereinafter referred to as, ‘CPC’), which inter
alia, enjoins that a suit must be instituted in a court within the local
limits of whose jurisdiction the Defendant actually and voluntarily
resides, or carries on business, or personally works for gain, or where the
cause of action wholly or in part arises. The Explanation to that Section
is important; it prescribes that a corporation shall be deemed to carry on
business at its sole or principal office, or, in respect of any cause of
action arising at any place where it has also a subordinate office, at such
place. Since this provision primarily keeps the Defendant in perspective,
the corporation spoken of in the Explanation, obviously refers to the
Defendant. A plain reading of Section 20 of the CPC arguably allows the
Plaintiff a multitude of choices in regard to where it may institute its
lis, suit or action. Corporations and partnership firms, and even sole
proprietorship concerns, could well be transacting business simultaneously
in several cities. If sub-sections (a) and (b) of Section 20 are to be
interpreted disjunctively from sub-section (c), as the use of the word ‘or’
appears to permit the Plaintiff to file the suit at any of the places where
the cause of action may have arisen regardless of whether the Defendant has
even a subordinate office at that place. However, if the Defendants’
location is to form the fulcrum of jurisdiction, and it has an office also
at the place where the cause of action has occurred, it has been held that
the Plaintiff is precluded from instituting the suit anywhere else.
Obviously, this is also because every other place would constitute a forum
non conveniens. This Court has harmonised the various hues of the
conundrum of the place of suing in several cases and has gone to the extent
of laying down that it should be courts endeavour to locate the place where
the cause of action has substantially arisen and reject others where it may
have incidentally arisen. Patel Roadways Limited, Bombay v. Prasad Trading
Company, AIR 1992 SC 1514 = (1991) 4 SCC 270 prescribes that if the
Defendant-corporation has a subordinate office in the place where the cause
of action arises, litigation must be instituted at that place alone,
regardless of the amplitude of options postulated in Section 20 of the CPC.
We need not dilate on this point beyond making a reference to ONGC v.
Utpal Kumar Basu (1994) 4 SCC 711 and South East Asia Shipping Co. Ltd. v.
Nav Bharat Enterprises Pvt. Ltd. (1996) 3 SCC 443.
We are alive to the possible incongruities that are fraught in
extrapolating decisions relating to civil law onto criminal law, which
includes importing the civil law concept of “cause of action” to criminal
law which essentially envisages the place where a crime has been committed
empowers the Court at that place with jurisdiction. In Navinchandra N.
Majithia v. State of Maharashtra (2000) 7 SCC 640 this Court had to
consider the powers of High Courts under Article 226(2) of the Constitution
of India. Noting the presence of the phrase “cause of action” therein it
was clarified that since some events central to the investigation of the
alleged crime asseverated in the Complaint had taken place in Mumbai and
especially because the fundamental grievance was the falsity of the
Complaint filed in Shillong, the writ jurisdiction of the Bombay High Court
was unquestionably available. The infusion of the concept of ‘cause of
action’ into the criminal dispensation has led to subsequent confusion
countenanced in High Courts. It seems to us that Bhaskaran allows multiple
venues to the Complainant which runs counter to this Court’s preference for
simplifying the law. Courts are enjoined to interpret the law so as to
eradicate ambiguity or nebulousness, and to ensure that legal proceedings
are not used as a device for harassment, even of an apparent transgressor
of the law. Law’s endeavour is to bring the culprit to book and to provide
succour for the aggrieved party but not to harass the former through
vexatious proceedings. Therefore, precision and exactitude are necessary
especially where the location of a litigation is concerned.
RELEVANT PROVISIONS
The provisions which will have to be examined and analysed are reproduced
for facility of reference :
1 Negotiable Instruments Act, 1881
2
“138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
Where any cheque drawn by a person 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, is returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions
of this Act, be punished with imprisonment for a term which may be extended
to two years, or with fine which may extend to twice the amount of the
cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months
from the date on which it is drawn or within the period of its validity,
whichever is earlier.
(b) the payee or the holder in due course of the cheque, as the case may
be, makes a demand for the payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within thirty days of the
receipt of information by him from the bank regarding the return of the
cheque as unpaid; and
(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.
Explanation. For the purposes of this section, “debt or other liability”
means a legally enforceable debt or other liability.
142. Cognizance of offences.-Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974)-
(a) no court shall take cognizance of any offence punishable under section
138 except upon a complaint, in writing, made by the payee or, as the case
may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause
of action arises under clause (c) of the proviso to section 138;
Provided that the cognizance of a complaint may be taken by the Court
after the prescribed period, if the complainant satisfies the Court that he
had sufficient cause for not making a complaint within such period.
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under
section 138.”
Code of Criminal Procedure, 1973
“177. Ordinary place of inquiry and trial.- Every offence shall ordinarily
be inquired into and tried by a Court within whose local jurisdiction it
was committed.
178. Place of inquiry or trial.- (a) When it is uncertain in which of
several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in
another, or
(c) where an offence is a continuing one, and continues to be committed in
more local areas than one, or
(d) where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over any of
such local areas.
179. Offence triable where act is done or consequence ensues.- When an act
is an offence by reason of anything which has been done and of a
consequence which has ensued, the offence may be inquired into or tried by
a Court within whose local jurisdiction such thing has been done or such
consequence has ensued.”
PARLIAMENTARY DEBATES
The XVIIth fasciculus of the Negotiable Instruments Act containing Sections
138 to 142 was introduced into the statute in 1988. The avowed intendment
of the amendment was to enhance the acceptability of cheques. It was based
on the Report of the Committee on Banking Laws by Dr. Rajamannar, submitted
in 1975, which suggested, inter alia, penalizing the issuance of cheque
without sufficient funds. The Minister of Finance had assuaged
apprehensions by arguing that safeguards for honest persons had been
incorporated in the provisions, viz., (i) the cheque should have been
issued in discharge of liability; (ii) the cheque should be presented
within its validity period; (iii) a Notice had to be sent by the Payee
demanding payment within 15 days of receiving notice of dishonour; (iv) the
drawer was allowed to make payment within 15 days from the date of receipt
of notice; (v) Complaint was to be made within one month of the cause of
action arising; (vi) no Court inferior to that of MM or JMFC was to try the
offence. The Finance Minister had also stated that the Court had
discretion whether the Drawer would be imprisoned or/and fined.
Detractors, however, pointed out that the IPC already envisioned criminal
liability for cheque-bouncing where dishonest or fraudulent intention or
mens rea on part of the Drawer was evident, namely, cheating, fraud,
criminal breach of trust etc. Therefore, there was no justification to
make the dishonour of cheques a criminal offence, ignoring factors like
illiteracy, indispensable necessities, honest/innocent mistake, bank
frauds, bona fide belief, and/or unexpected attachment or freezing of
account in any judicial proceedings as it would bring even honest persons
within the ambit of Section 138 NI Act. The possibility of abusing the
provision as a tool of harassment could also not be ruled out. Critics
also decried the punishment for being harsh; that civil liability can never
be converted into criminal liability; that singling out cheques out of all
other negotiable instruments would be violative of Article 14 of
Constitution of India. Critics contended that there was insufficient
empirical enquiry into statutes or legislation in foreign jurisdictions
criminalizing the dishonour of cheques and statistics had not been made
available bearing out that criminalization would increase the acceptability
of cheque. The Minister of Finance was not entirely forthright when he
stated in Parliament that the drawer was also allowed sufficient
opportunity to say whether the dishonour was by mistake. It must be borne
in mind that in the U.K. deception and dishonesty are key elements which
require to be proved. In the USA, some States have their own laws,
requiring fraudulent intent or knowledge of insufficient funds to be made
good. France has criminalized and subsequently decriminalized the dishonour
except in limited circumstances. Instead, it provides for disqualification
from issuing cheques, a practice which had been adopted in Italy and Spain
also. We have undertaken this succinct study mindful of the fact that
Parliamentary debates have a limited part to play in interpretation of
statutes, the presumption being that Legislators have the experience,
expertise and language skills to draft laws which unambiguously convey
their intentions and expectations for the enactments. What is palpably
clear is that Parliament was aware that they were converting civil
liability into criminal content inter alia by the deeming fiction of
culpability in terms of the pandect comprising Section 138 and the
succeeding Sections, which severely curtail defences to prosecution.
Parliament was also aware that the offence of cheating etc., already
envisaged in the IPC, continued to be available.
CIVIL LAW CONCEPTS NOT STRICTLY APPLICABLE
We have already cautioned against the extrapolation of civil law concepts
such as “cause of action” onto criminal law. Section 177 of the CrPC
unambiguously states that every offence shall ordinarily be inquired into
and tried by a Court within whose local jurisdiction it was committed.
“Offence”, by virtue of the definition ascribed to the word by Section 2(n)
of the CrPC means any act or omission made punishable by any law. Halsbury
states that the venue for the trial of a crime is confined to the place of
its occurrence. Blackstone opines that crime is local and jurisdiction
over it vests in the Court and Country where the crime is committed. This
is obviously the raison d’etre for the CrPC making a departure from the CPC
in not making the “cause of action” routinely relevant for the
determination of territoriality of criminal courts. The word “action” has
traditionally been understood to be synonymous to “suit”, or as ordinary
proceedings in a Court of justice for enforcement or protection of the
rights of the initiator of the proceedings. “Action, generally means a
litigation in a civil Court for the recovery of individual right or redress
of individual wrong, inclusive, in its proper legal sense, of suits by the
Crown” – [Bradlaugh v. Clarke 8 Appeal Cases 354 p.361]. Unlike civil
actions, where the Plaintiff has the burden of filing and proving its case,
the responsibility of investigating a crime, marshalling evidence and
witnesses, rests with the State. Therefore, while the convenience of the
Defendant in a civil action may be relevant, the convenience of the so
called complainant/victim has little or no role to play in criminal
prosecution. Keeping in perspective the presence of the word “ordinarily”
in Section 177 of CrPC, we hasten to adumbrate that the exceptions to it
are contained in the CrPC itself, that is, in the contents of the
succeeding Section 178. The CrPC also contains an explication of
“complaint” as any allegation to a Magistrate with a view to his taking
action in respect of the commission of an offence; not being a police
report. Prosecution ensues from a Complaint or police report for the
purpose of determining the culpability of a person accused of the
commission of a crime; and unlike a civil action or suit is carried out (or
‘prosecuted’) by the State or its nominated agency. The principal
definition of “prosecution” imparted by Black’s Law Dictionary 5th Edition
is “a criminal action; the proceeding instituted and carried on by due
process of law, before a competent Tribunal, for the purpose of determining
the guilt or innocence of a person charged with crime.” These reflections
are necessary because Section 142(b) of the NI Act contains the words, “the
cause of action arises under the proviso to Section 138”, resulting
arguably, but in our opinion irrelevantly, to the blind borrowing of
essentially civil law attributes onto criminal proceedings. We reiterate
that Section 178 admits of no debate that in criminal prosecution, the
concept of “cause of action”, being the bundle of facts required to be
proved in a suit and accordingly also being relevant for the place of
suing, is not pertinent or germane for determining territorial jurisdiction
of criminal Trials. Section 178, CrPC explicitly states that every offence
shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed. Section 179 is of similar tenor. We are
also unable to locate any provision of the NI Act which indicates or
enumerates the extraordinary circumstances which would justify a departure
from the stipulation that the place where the offence is committed is where
the prosecution has to be conducted. In fact, since cognizance of the
offence is subject to the five Bhaskaran components or concomitants the
concatenation of which ripens the already committed offence under Section
138 NI Act into a prosecutable offence, the employment of the phrase “cause
of action” in Section 142 of the NI Act is apposite for taking cognizance,
but inappropriate and irrelevant for determining commission of the subject
offence. There are myriad examples of the commission of a crime the
prosecution of which is dependent on extraneous contingencies such as
obtainment of sanction for prosecution under Section 19 of the Prevention
of Corruption Act 1988. Similar situation is statutorily created by
Section 19 of the Environmental Protection Act 1986, Section 11 of the
Central Sales Tax Act 1956, Section 279 of the Income Tax Act, Sections 132
and 308, CrPC, Section 137 of the Customs Act etc. It would be idle to
contend that the offence comes into existence only on the grant of
permission for prosecution, or that this permission constitutes an integral
part of the offence itself. It would also be futile to argue that the
place where the permission is granted would provide the venue for the
trial. If sanction is not granted the offence does not vanish. Equally,
if sanction is granted from a place other than where the crime is
committed, it is the latter which will remain the place for its
prosecution.
SECTION 138 NI ACT
The marginal note of Section 138 of the NI Act explicitly defines the
offence as being the dishonour of cheques for insufficiency, etc., of funds
in the account. Of course, the headings, captions or opening words of a
piece of legislation are normally not strictly or comprehensively
determinative of the sweep of the actual Section itself, but it does
presage its intendment. See: Frick India Ltd. v. Union of India (1990) 1
SCC 400 and Forage & Co. v. Municipal Corporation of Greater Bombay (1999)
8 SCC 577. Accordingly, unless the provisions of the Section clearly point
to the contrary, the offence is concerned with the dishonour of a cheque;
and in the conundrum before us the body of this provision speaks in the
same timbre since it refers to a cheque being “returned by the bank
unpaid”. None of the provisions of the IPC have been rendered nugatory by
Section 138 of the NI Act and both operate on their own. It is trite that
mens rea is the quintessential of every crime. The objective of Parliament
was to strengthen the use of cheques, distinct from other negotiable
instruments, as mercantile tender and therefore it became essential for the
Section 138 NI Act offence to be freed from the requirement of proving mens
rea. This has been achieved by deeming the commission of an offence de
hors mens rea not only under Section 138 but also by virtue of the
succeeding two Sections. Section 139 carves out the presumption that the
holder of a cheque has received it for the discharge of any liability.
Section 140 clarifies that it will not be available as a defence to the
drawer that he had no reason to believe, when he issued the cheque, that it
would be dishonoured. Section 138 unequivocally states that the offence is
committed no sooner the drawee bank returns the cheque unpaid.
Section 138 NI Act is structured in two parts – the primary and the
provisory. It must be kept in mind that the Legislature does not ordain
with one hand and immediately negate it with the other. The proviso often
carves out a minor detraction or diminution of the main provision of which
it is an appendix or addendum or auxiliary. Black Law Dictionary states in
the context of a proviso that it is – “a limitation or exception to a grant
made or authority conferred, the effect of which is to declare that the one
shall not operate, or the other be exercised, unless in the case provided.
…. A clause or part of a clause in a statute, the office of which is either
to except something from the enacting clause, or to qualify or restrain its
generality, or to exclude some possible ground of misinterpretation of its
extent.” It should also be kept in perspective that a proviso or a
condition are synonymous. In our perception in the case in hand the
contents of the proviso place conditions on the operation of the main
provision, while it does form a constituent of the crime itself, it
modulates or regulates the crime in circumstances where, unless its
provisions are complied with, the already committed crime remains
impervious to prosecution. The proviso to Section 138 of the NI Act
features three factors which are additionally required for prosecution to
be successful. In this aspect Section 142 correctly employs the term
“cause of action” as compliance with the three factors contained in the
proviso are essential for the cognizance of the offence, even though they
are not part of the action constituting the crime. To this extent we
respectfully concur with Bhaskaran in that the concatenation of all these
concomitants, constituents or ingredients of Section 138 NI Act, is
essential for the successful initiation or launch of the prosecution. We,
however, are of the view that so far as the offence itself the proviso has
no role to play. Accordingly a reading of Section 138 NI Act in
conjunction with Section 177, CrPC leaves no manner of doubt that the
return of the cheque by the drawee bank alone constitutes the commission of
the offence and indicates the place where the offence is committed.
In this analysis we hold that the place, situs or venue of judicial inquiry
and trial of the offence must logically be restricted to where the drawee
bank, is located. The law should not be warped for commercial exigencies.
As it is Section 138 of the NI Act has introduced a deeming fiction of
culpability, even though, Section 420 is still available in case the payee
finds it advantageous or convenient to proceed under that provision. An
interpretation should not be imparted to Section 138 which will render it
as a device of harassment i.e. by sending notices from a place which has no
casual connection with the transaction itself, and/or by presenting the
cheque(s) at any of the banks where the payee may have an account. In our
discernment, it is also now manifest that traders and businessmen have
become reckless and incautious in extending credit where they would
heretofore have been extremely hesitant, solely because of the availability
of redress by way of criminal proceedings. It is always open to the
creditor to insist that the cheques in question be made payable at a place
of the creditor’s convenience. Today’s reality is that the every
Magistracy is inundated with prosecutions under Section 138 NI Act, so much
so that the burden is becoming unbearable and detrimental to the disposal
of other equally pressing litigation. We think that Courts are not
required to twist the law to give relief to incautious or impetuous
persons; beyond Section 138 of the NI Act.
We feel compelled to reiterate our empathy with a payee who has been duped
or deluded by a swindler into accepting a cheque as consideration for
delivery of any of his property; or because of the receipt of a cheque has
induced the payee to omit to do anything resulting in some damage to the
payee. The relief introduced by Section 138 of the NI Act is in addition
to the contemplations in the IPC. It is still open to such a payee
recipient of a dishonoured cheque to lodge a First Information Report with
the Police or file a Complaint directly before the concerned Magistrate.
If the payee succeeds in establishing that the inducement for accepting a
cheque which subsequently bounced had occurred where he resides or
ordinarily transacts business, he will not have to suffer the travails of
journeying to the place where the cheque has been dishonoured. All
remedies under the IPC and CrPC are available to such a payee if he chooses
to pursue this course of action, rather than a Complaint under Section 138
of the NI Act. And of course, he can always file a suit for recovery
wherever the cause of action arises dependent on his choosing.
The interpretation of Section 138 of the NI Act which commends itself to us
is that the offence contemplated therein stands committed on the dishonour
of the cheque, 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
thereof 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 restricted to the Court within whose local
jurisdiction the offence was committed, which in the present context is
where the cheque is dishonoured by the bank on which it is drawn.
We are quite alive to the magnitude of the impact that the present decision
shall have to possibly lakhs of cases pending in various Courts spanning
across the country. One approach could be to declare that this judgment
will have only prospective pertinence, i.e. applicability to Complaints
that may be filed after this pronouncement. However, keeping in
perspective the hardship that this will continue to bear on alleged
accused/respondents who may have to travel long distances in conducting
their defence, and also mindful of the legal implications of proceedings
being permitted to continue in a Court devoid of jurisdiction, this
recourse in entirety does not commend itself to us. Consequent on
considerable consideration we think it expedient to direct that only those
cases where, post the summoning and appearance of the alleged Accused, the
recording of evidence has commenced as envisaged in Section 145(2) of the
Negotiable Instruments Act, 1881, will proceeding continue at that place.
To clarify, regardless of whether evidence has been led before the
Magistrate at the pre-summoning stage, either by affidavit or by oral
statement, the Complaint will be maintainable only at the place where the
cheque stands dishonoured. To obviate and eradicate any legal
complications, the category of Complaint cases where proceedings have gone
to the stage of Section 145(2) or beyond shall be deemed to have been
transferred by us from the Court ordinarily possessing territorial
jurisdiction, as now clarified, to the Court where it is presently pending.
All other Complaints (obviously including those where the
accused/respondent has not been properly served) shall be returned to the
Complainant for filing in the proper Court, in consonance with our
exposition of the law. If such Complaints are filed/refiled within thirty
days of their return, they shall be deemed to have been filed within the
time prescribed by law, unless the initial or prior filing was itself time
barred.
DISPOSAL OF PRESENT APPEALS
Crl. Appeal No.2287 of 2009
21. A learned Single Judge of the High Court of Judicature at Bombay,
Nagpur Bench has, pursuant to a threadbare discussion of Bhaskaran
concluded that since the concerned cheque was drawn on the Bank of India,
Bhandara Branch, Maharashtra where it was dishonoured, the Judicial
Magistrate First Class, Digras, District Yavatmal had no jurisdiction to
entertain the Complaint. It is pertinent to note that the subject cheque
was presented at Digras, District Yavatmal where the Complainant had a bank
account although he was a resident of District Washim, Maharashtra. The
learned Single Judge, in the impugned judgment, had rightly rejected the
argument that the Complaint itself should be dismissed; instead he ordered
that it be returned to the complainant for filing in the appropriate Court.
The Appeal is accordingly dismissed.
Crl. Appeal No. 1593 of 2014
[Arising out of S.L.P.(Crl.)No.2077 of 2009
22. In this Appeal the Respondent-accused, having purchased electronic
items from the Appellant-company, issued the cheque in question drawn on
UCO Bank, Tangi, Orissa which was presented by the Complainant-company at
State Bank of India, Ahmednagar Branch, Maharashtra as its branch office
was located at Ahmednagar. The cheque was dishonoured by UCO Bank, Tangi,
Orissa. A Complaint was filed before JMFC, Ahmednagar. An application was
filed by the Respondent-accused under Section 177 CrPC questioning the
jurisdiction of the JMFC Ahmednagar, who held that since the demand notice
was issued from and the payment was claimed at Ahmednagar, he possessed
jurisdiction to try the Complaint. The High Court disagreed with the
conclusion of the JMFC, Ahmednagar that the receipt of notice and non-
payment of the demanded amount are factors which will have prominence over
the place wherefrom the notice of demand was issued and held that JMFC,
Ahmednagar did not have the territorial jurisdiction to entertain the
Complaint. In view of the foregoing discussion on the issue above, the
place where the concerned cheque had been dishonoured, which in the case in
hand was Tangi, Orissa, the Appeal is allowed with the direction that the
Complaint be returned to the Complainant for further action in accordance
with law.
Crl. Appeal Nos. 1594, 1595 & 1601 to 1603 of 2014
[Arising out of S.L.P.(Crl.)Nos.2112 of 2009 and 2117 of 2009;
3762 of 2012; 3943 of 2012; 3944 of 2012]
23. The facts being identical to Criminal Appeal arising out of
S.L.P.(Crl.)No.2077 of 2009, these Appeals stand dismissed.
Crl. Appeal Nos.1596-1600 of 2014
[Arising out of S.L.P.(Crl.)Nos.1308-1312 of 2009]
24. The Appellant-complainant herein has its Registered Office in Delhi
from where the Respondents-accused are also carrying on their business.
The cheques in question were issued by the Respondent No.2-accused drawn on
Indian Overseas Bank, Connaught Place, New Delhi. However, the same were
presented and dishonoured at Nagpur, Maharashtra where the Complainant
states it also has an office. There is no clarification why the cheques had
not been presented in Delhi where the Complainant had its Registered
Office, a choice which we think is capricious and perfidious, intended to
cause harassment. Upon cheques having been dishonoured by the concerned
bank at Delhi, five Complaints were filed before Judicial Magistrate First
Class, Nagpur who heard the Complaints, and also recorded the evidence led
by both the parties. However, the JMFC, Nagpur acquitted the Respondent
No.2-accused on the ground of not having territorial jurisdiction. On
appeals being filed before the High Court of Bombay, the judgment of the
JMFC, Nagpur was partly set aside so far as the acquittal of the Respondent
No.2-accused was concerned and it was ordered that the Complaints be
returned for filing before the proper Court. In view of the conclusion
arrived at by us above, these Appeals are also dismissed.
Crl. Appeal No. 1604 of 2014
[Arising out of S.L.P.(Crl.)No.59 of 2013]
25. The cheque in question was drawn by the Respondent-accused on State
Bank of Travancore, Delhi. However, it was presented by the Appellant-
complainant at Aurangabad. A Complaint was filed before JMFC, Aurangabad
who issued process. Respondent-accused filed an application under Section
203 of CrPC seeking dismissal of the Complaint. The application was
dismissed on the predication that once process had been initiated, the
Complaint could not be dismissed. On a writ petition being filed before
the High Court of Bombay, Aurangabad Bench, the order of issuance of
process was set aside and the Complaint was ordered to be returned for
being presented before a competent court having jurisdiction to entertain
the same. The High Court had correctly noted that the objection pertained
to the territorial jurisdiction of the JMFC, Aurangabad, a feature which
had not been comprehensively grasped by the latter. The High Court noted
that the Registered Office of the Complainant was at Chitegaon, Tehsil
Paithan, District Aurangabad whereas the Accused was transacting business
from Delhi. The High Court pithily underscored that in paragraph 4 of the
Complaint it had been specifically contended that credit facility was given
to the Accused in Delhi, where the Complainant-company also had its branch
office. The statutory notice had also emanated from Aurangabad, and it had
been demanded that payment should be made in that city within the specified
time. It was also the Complainant’s case that the Invoice, in case of
disputes, restricted jurisdiction to Aurangabad courts; that intimation of
the bouncing of the cheques was received at Aurangabad. It is however
necessary to underscore that the Accused had clarified that the subject
transaction took place at Delhi where the goods were supplied and the
offending cheque was handed over to the Complainant. It appears that a
Civil Suit in respect of the recovery of the cheque amount has already been
filed in Delhi. We may immediately reiterate that the principles
pertaining to the cause of action as perceived in civil law are not
relevant in criminal prosecution. Whilst the clause restricting
jurisdiction to courts at Aurangabad may have efficacy for civil
proceedings, provided any part of the cause of action had arisen in
Aurangabad, it has no bearing on the situs in criminal prosecutions. Since
a Civil Suit is pending, we hasten to clarify that we are not expressing
any opinion on the question of whether the courts at Delhi enjoy
jurisdiction to try the Suit for recovery. In the impugned judgment, the
High Court duly noted Bhaskaran and Harman. However, it committed an
error in analyzing the cause of action as well as the covenant restricting
jurisdiction to Aurangabad as these are relevant only for civil disputes.
However, the impugned judgment is beyond interference inasmuch as it
concludes that the JMFC, Aurangabad has no jurisdiction over the offence
described in the Complaint. The Appeal is accordingly dismissed.
……………………………………………….J.
[T.S. THAKUR]
……………………………………………….J.
[VIKRAMAJIT SEN]
………………………………………………J.
[C. NAGAPPAN]
New Delhi
August 1, 2014.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2287 OF 2009
DASHRATH RUPSINGH RATHOD …Appellant
Versus
STATE OF MAHARASHTRA & ANR. …Respondents
WITH
CRIMINAL APPEAL NO. 1593 OF 2014
(Arising out of S.L.P. (Crl.) No.2077 of 2009)
CRIMINAL APPEAL NO. 1594 OF 2014
(Arising out of S.L.P. (Crl.) No.2112 of 2009)
CRIMINAL APPEAL NO. 1595 OF 2014
(Arising out of S.L.P. (Crl.) No.2117 of 2009)
CRIMINAL APPEAL NO. 1596-1600 OF 2014
(Arising out of S.L.P. (Crl.) Nos.1308-1312 of 2009)
CRIMINAL APPEAL NO. 1601 OF 2014
(Arising out of S.L.P. (Crl.) No.3762 of 2012)
CRIMINAL APPEAL NO. 1602 OF 2014
(Arising out of S.L.P. (Crl.) No.3943 of 2012)
CRIMINAL APPEAL NO. 1603 OF 2014
(Arising out of S.L.P. (Crl.) No.3944 of 2012)
AND
CRIMINAL APPEAL NO. 1604 OF 2014
(Arising out of S.L.P. (Crl.) No.59 of 2013)
J U D G M E N T
T.S. Thakur, J.
1. I have had the advantage of going through the draft order proposed by
my esteemed brother Vikramajit Sen, J. I entirely agree with the
conclusions which my erudite brother has drawn based on a remarkably
articulate process of reasoning that illumines the draft judgment authored
by him. I would all the same like to add a few lines of my own not because
the order as proposed leaves any rough edges to be ironed out but only
because the question of law that arises for determination is not only
substantial but of considerable interest and importance for the commercial
world. The fact that the view being taken by us strikes a discordant note
on certain aspects which have for long been considered settled by earlier
decisions of this Court being only an additional reason for the
modest addition that I propose to make. Of these decisions
Bhaskaran’s case stands out as the earliest in which this Court
examined the vexed question of territorial jurisdiction of the Courts to
try offences punishable under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter called “NI Act”). Bhaskaran’s case was heard by a
two-judge Bench of this Court who took the view that the jurisdiction to
try an offence under Section 138 could not be determined only by reference
to the place where the cheque was dishonoured. That is because dishonour of
the cheque was not by itself an offence under Section 138 of The Negotiable
Instruments Act, 1881, observed the Court. The offence is complete only
when the drawer fails to pay the cheque amount within the period of fifteen
days stipulated under clause (c) of the proviso to Section 138 of the Act.
Having said that the Court recognised the difficulty in fixing a place
where such failure could be said to have taken place. It could, said the
Court, be the place where the drawer resides or the place where the payee
resides or the place where either of them carries on business. To resolve
this uncertainty the Court turned to Sections 178 and 179 of the Cr.P.C. to
hold that since an offence under Section 138 can be completed only with the
concatenation of five acts that constituted the components of the offence
any Court within whose jurisdiction any one of those acts was committed
would have the jurisdiction to try the offence. The Court held:
“The offence under Section 138 of the Act can be completed only with the
concatenation of a number of acts. The following are the acts which are
components of the said offence: (1) drawing of the cheque, (2) presentation
of the cheque to the bank, (3) returning the cheque unpaid by the drawee
bank, (4) giving notice in writing to the drawer of the cheque demanding
payment of the cheque amount, (5) failure of the drawer to make payment
within 15 days of the receipt of the notice.
It is not necessary that all the above five acts should have been
perpetrated at the same locality. It is possible that each of those five
acts could be done at five different localities. But a concatenation of all
the above five is a sine qua non for the completion of the offence under
Section 138 of the Code. In this context a reference to Section 178(d) of
the Code is useful. It is extracted below:
“178. (a)-(c) * * *
(d) where the offence consists of several acts done in different local
areas, it may be enquired into or tried by a court having jurisdiction over
any of such local areas.”
Thus it is clear, if the five different acts were done in five different
localities any one of the courts exercising jurisdiction in one of the five
local areas can become the place of trial for the offence under Section 138
of the Act. In other words, the complainant can choose any one of those
courts having jurisdiction over any one of the local areas within the
territorial limits of which any one of those five acts was done. As the
amplitude stands so widened and so expansive it is an idle exercise to
raise jurisdictional question regarding the offence under Section 138 of
the Act.”
2. Bhaskaran held the field for two years. The first blow to the view
taken by this Court in Bhaskaran’s case was dealt by a three-Judge Bench
decision in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3
SCC 609. The question that arose in that case was whether the limitation of
six months for presentation of a cheque for encashment was applicable viz-a-
viz presentation to the bank of the payee or that of the drawer. High
Courts in this country had expressed conflicting opinions on the subject.
This Court resolved the cleavage in those pronouncements by holding that
the cheque ought to be presented to the drawee bank for its dishonour to
provide a basis for prosecution under Section 138. The Court observed:
“The use of the words “a bank” and “the bank” in the section are an
indicator of the intention of the legislature. “The bank” referred to in
proviso (a) to the proviso to Section 138 of the Act would mean the drawee
bank on which the cheque is drawn and not all banks where the cheque is
presented for collection including the bank of the payee, in whose favour
the cheque is issued.
It, however, does not mean that the cheque is always to be presented to the
drawer’s bank on which the cheque is issued. However, a combined reading of
Sections 3, 72 and 138 of the Act would clearly show that the law mandates
the cheque to be presented at the bank on which it is drawn if the drawer
is to be held criminally liable. Such presentation is necessarily to be
made within six months at the bank on which the cheque is drawn, whether
presented personally or through another bank, namely, the collecting bank
of the payee.”
3. Ishar Alloy’s case (supra) did not deal with the question of
jurisdiction of the Courts nor was Bhaskaran noticed by the Court while
holding that the presentation of the cheque ought to be within six months
to the drawee bank. But that does not, in our view, materially affect the
logic underlying the pronouncement, which pronouncement coming as it is
from a bench of coordinate jurisdiction binds us. When logically extended
to the question of jurisdiction of the Court to take cognizance, we find it
difficult to appreciate how a payee of the cheque can by presentation of
the cheque to his own bank confer jurisdiction upon the Court where such
bank is situate. If presentation referred to in Section 138 means
presentation to the “drawee bank”, there is no gainsaying that dishonour
would be localised and confined to the place where such bank is situated.
The question is not whether or not the payee can deposit his cheque in any
bank of his choice at any place. The ques