1. By this application under section 482 of the Code of Criminal Procedure, the applicant (original complainant) has prayed for, to quash and set aside the order passed below Exhibit 66 on 21-12-2009 in Summary Criminal Case No. 3950/2008 by the learned 23rd Judicial Magistrate First Class and Special Court, Nagpur, under section 138 of the Negotiable Instruments Act, whereby the learned Trial Magistrate was pleased to direct return of the complaint for to be presented before the Court having jurisdiction. The complainant aggrieved by the said order, preferred this Criminal Application with prayer for to invoke inherent powers, in view of section 482 of the Code of Criminal Procedure.

2. The facts, which appear, briefly are as under:—

The applicant is a non-banking finance company incorporated and registered as a company under the Companies Act, 1956 doing business of leasing and hire purchase having its corporate office at Sadhna House behind Mahindra Towers with Regional Office at 1st Floor, Civil Lines, Nagpur.

3. The learned Advocate for the applicant submitted that the complainant was to recover loan amount from the accused given to him for purchase of vehicle. The respondent-accused failed to make repayments as agreed and ultimately the accused had issued cheque bearing No. 0183876 in favour of the complainant for an amount of Rs. 1,60,305/-. The cheque was drawn on Yavatmal Gramin Bank on 20th September, 2007 in discharge of his legal liability. The said cheque was presented for encashment at IDBI Bank Sitabuldi, Nagpur but it was returned dishonoured with return memo dated 18-1-2008 with remark “account closed”. Accordingly, demand notice was issued on 25-1-2008 by R.P.A.D as well as under certificate of posting. The notice sent by R.P.A.D was returned to the sendor with remark “not claimed” and notice under certificate of posting was served. Thus, on the ground that the accused had failed to comply with the legal notice and to discharge his liability in respect of the dishonour of cheque, the complaint was lodged with learned Trial Magistrate and Special Court under section 138 of the Negotiable Instruments Act. The learned Magistrate had taken cognizance of the complaint by examining Arifkhan Abdul Waheed Khan, a witness from the bank. The accused had also filed affidavit in lieu of evidence and examined one witness Nitin Vishnupant Thakre. Under these circumstances even written notes of arguments were tendered. Thus, it is submitted that once the learned Trial Judge took cognizance of the complaint in accordance with law, the impugned order to return complaint ought not have been passed. It is further submitted that the learned Trial Judge failed to take into consideration the provisions of section 178 of the Code of Criminal Procedure, which makes it clear that in case of uncertainty as to in which of several local areas an offence was committed or where an offence was committed partly in one local area and partly in another or where an offence was a continuing one, and continued to be committed in more local areas than one, or where it consists of several acts which may have been done in different local areas then offence may be inquired into or tried by a Court having jurisdiction over any of such local areas. Furthermore; under section 179 of the Code of Criminal Procedure, it is submitted that there is an option provided for the Court taking cognizance of an offence to the effect that when an act is an offence by reason of anything which has been done and by reason of consequence which has ensued, the offence may be inquired into or tried by a Court within whose legal jurisdiction such thing has been done or such consequence has ensued. The learned Advocate for the applicant submitted that in view of this clear provisions as to jurisdiction of the Criminal Court in inquiry and trial, the learned Trial Judge ought not to have returned the complaint, more so when cognizance, of the complaint was already taken by allowing the complainant to lead evidence in support of the complaint and by allowing the accused to lead evidence. Therefore, it is submitted that the impugned order is contrary to law and ought to be quashed and set aside in exercise of inherent jurisdiction under section 482 of the Code of Criminal Procedure.

4. The learned Advocate for the respondent (accused) in support of the impugned order has placed reliance in the report of Harman Electronics Pvt. Ltd. v. National Panasonic India Pvt. Ltd., reported in (2009)(3) Mh.L.J 792, as also upon the ruling in Dipti Kumar Mohanty v. Videocon Industries Ltd., reported in (2009)(5) Mh.L.J 273. A view was taken for to return the complaint for presentation to the appropriate Court having jurisdiction over the matter. According to the learned Advocate for the respondent, the cheque in the present case was drawn upon Yavatmal Gramin Bank in favour of Mahindra and Mahindra Financial Services Ltd. The cheque was presented on 20th September 2007 at IDBI Bank, Situabuldi, Nagpur and it was returned with return memo dated 18-1-2008 from the banker of the accused with intimation that the cheque remained dishonoured for the reason “account closed”. Notice of demand was issued from Nagpur to the accused on 25-1-2008 which was sent by R.P.A.D as well as under certificate of posting to the accused at Yavatmal. According to the learned counsel for the respondent, therefore, the learned Trial Judge rightly passed the order making reference to the rulings in Dipti Kumar Mohanti v. Videocon Industries Ltd. (Bombay High Court) and Harman Electronics Pvt. Ltd. v. National Panasonic Pvt. Ltd. (supra). Thus, learned Advocate for the respondent tried to support the impugned order on the ground that the judgment in the report of Smt. Shdmshad Begum v. B. Mohammed reported in 2009 Cri.L.J 1304 (SC) was also considered which gave option to the complainant to prefer complaint any of the five places where five acts were perpetrated as mentioned below:—

(I) Drawing of the cheque; the place where cheque is drawn;

(II) Place where presentation of the cheque is made to the collecting Bank;

(III) Place where the cheque was returned unpaid by the drawee bank;

(IV) Place where notice was given in writing to the drawer of the cheque demanding payment of the cheque amount;

(V) Place where the drawer failed to make payment within 15 days of the receipt of the notice.

5. It appears that ruling in the report of Shamshad Begum (Smt) v. B. Mohammed (supra) has made reference to the ruling reported in 2000(1) Mh.L.J (S.C) 193 : (1999) 7 SCC 510, K. Bhaskaran v. Sankaran Vaidhyan Balan in which it is observed by the Apex Court that 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 local localities. But a concatenation of all the above five acts is a sine qua non for the completion of the offence under section 138 of the Negotiable Instruments Act. The Apex Court has made reference to section 178(d) of the Code of Criminal Procedure, where the offence consists of several acts done in different areas then it may be inquired and tried by a Court having jurisdiction over any of such local areas. Thus, any of the Courts exercising jurisdiction in any of the local areas can become a place of trial for the offence under section 138 of the Negotiable Instruments Act. In other words, it is option of the complainant to choose any one of those Courts having jurisdiction over any of the local areas within the territorial limits of which any one of those five acts were done. Thus, in view of this wider scope of enabling provision as to venue of the trial, it is submitted that the learned Magistrate/Special Judge ought not to have allowed the accused to raise jurisdictional question or should have dismissed the application by the accused. The learned Advocate for the applicant has made a reference to the Division Bench ruling of the Bombay High Court in Preetha v. Voltas Ltd. Cochin, reported in (2010)(3) Mh.L.J 324. The learned Advocate for the applicant submitted that all the rulings which were referred to by the learned Advocate for the respondent-accused and the learned Special Judge while passing the impugned order were referred to and were considered by the Division Bench of this Court and it was specially observed in paragraph 31.

6. Paragraph 31 reads thus:

“Therefore, the cheque can be presented at the collecting bank of the payee. The collecting bank has to then send it to the drawee bank. That must be done within six months. If the cheque is dishonured and money is not paid within 15 days of the notice, complaint can be filed at the place where the collecting bank is situated. The idea is that the cheque should reach the drawee bank within six months. It can be directly presented to it or it can be presented through the collecting bank”.

Thus, in view of the above observations of the Division Bench of this Court and in the facts and circumstances of the present case if the complainant calls upon the accused to make payment at the place mentioned in the demand notice and the accused fails to make payment at that place, part of cause of action would undoubtedly arise at that place. Thus, Nagpur Court also had jurisdiction to entertain the complaint.

7. It appears that the aforesaid view is binding and was also taken in the ruling reported in Crompton Greaves Ltd. v. Shivam Traders, reported at (2010)(3) Mh.L.J 246 by the learned Single Judge Bench of this Court.

8. Thus, in view of the legal position discussed in above rulings, particularly in Preetha v. Voltas Limited and Crompton Greaves v. Shivam Traders, it must be concluded that the impugned order passed by the learned Magistrate is contrary to law and therefore unsustainable. Hence, the order is quashed and set aside. The parties to appear before the learned Judicial Magistrate First Class and Special Court, Nagpur, under section 138 of the Negotiable Instruments Act on 9th January, 2012 at 11.00 a.m Learned Magistrate/Special Judge under section 138 of Negotiable Instruments Act shall proceed further according to law.

9. The application is allowed accordingly with no order as to costs.

Application allowed.