ORDER
This petition is filed challenging the order passed by the learned Magistrate directing return of complaint under Section 201(1) Cr.P.C
2. I have heard Sri. S.P Shankar, learned Senior counsel for petitioner and Sri. Nataraj Ballal, learned counsel for respondents.
3. It is seen from the averments of complaint and impugned order that complainant has invoked the jurisdiction of court at Bangalore on the premise that the cheque was presented for collection at Bangalore and notice was issued at Bangalore.
4. The learned Senior counsel for petitioner relying on various judgments of Supreme Court and the provisions of sections 177 and 179 Cr.P.C would submit that complaint can be instituted at a place where one of the acts is committed.
5. A complaint can be initiated under Section 138 of Negotiable Instruments Act and the procedure for trial of the case falls under Section 143 of N.I Act, which reads thus:
“143. Power of Court to try cases summarily -(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (1973 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as practicable, consistently with the interest of justice, be continued from day to day until its conclusion, unless the Court find the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3) Every trial under this section be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.”
6. The learned senior counsel appearing for petitioner, relying on the judgments of the Supreme Court, reported in AIR 1999 SC 3762 (in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan) and AIR 2009 SC 1355 (in the case of Shamshad Begum (Smt) v. B. Mohammed) would submit that an offence under Section 138 of Negotiable Instruments Act can be completed with concatenation of number of acts, such acs being (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.
7. The learned senior counsel for petitioner would submit that in the instant case, cheque was presented for collection at Bangalore and the legal notice was also issued at Bangalore. Therefore, the court below has jurisdiction to try the case.
8. The first submission made by learned Senior counsel for petitioner that the place where cheque was presented for collection would be decisive on the question of jurisdiction cannot be accepted in view of what has been held by the Supreme Court reported in a judgment reported in (2001) 3 SCC 609 (in the case of Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd..).
The Supreme Court while dealing with expression “bank” occurring in proviso (a) to S. 138 has held:
“Expression “the bank”, occurring in proviso (a) to S.138 means the drawee bank and not the collecting bank of payee. Hence, in order to attract the criminal liability of the drawer, the cheque must be presented to the drawee bank within the statutory period either personally or through a collecting bank.”
9. In a decision reported in AIR 2009 SC 1168 (in the case of Harman Electronics (P) Ltd. v. National Panasonic India Ltd.) the Supreme Court has held:
24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an offence completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., [(2001) 6 SCC 463] emphasis has been laid on service of notice.
25. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-a-vis the provisions of the Code of Criminal Procedure.
26. Learned counsel for the respondent contends that the principle that the debtor must seek the creditor should be applied in a case of this nature.
27. We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle.”
10. In view of what has been held in the aforestated judgment, the submission of learned counsel for petitioner cannot be accepted.
11. The decision reported in AIR 2009 SC 1355 (in the case of Shamshad Begum (Smt) v. B. Mohammed) was rendered by two judges of Supreme Court on 03.11.2008 and the decision reported in AIR 2009 SC 1168 (in the case of Harman Electronics (P) Ltd. v. National Panasonic India Ltd.) was rendered by two judges of Supreme Court on 12.12.2008 Therefore, what is to be followed is the subsequent judgment of Supreme Court.
12. The learned Senior Counsel has relied on the unreported judgment of this court in Crl.P No. 4338/2009 dated 03.09.2009 and Crl.P No. 4183/2009 dated 29.10.2009
13. In Crl.P No. 4338/2009, this court has held:
“4. Complainant's address also discloses that, the complaint is having offices at Bangalore, Bombay and other places. The sworn statement of the authorised person of the complainant-Company is also found. Considering the act of presenting the cheque for encashment, legal notice and the office of the complainant being at Bangalore, I do not find that there is any justification in the ground urged by the petitioner. As far as the decision of the Apex Court is concerned, the Supreme Court has stated that, in case the offence is committed at different places, any one could be chosen as place of trial. The said decision is not applicable to the fact of this case.”
In Criminal Petition No. 4338/2009 dated 03.09.2009, there is no reference to the judgment of the Supreme Court in Harman Electronics' case.
14. In Crl.P No. 4183/2009, this court having referred to the judgment of the Supreme Court, reported in 2009 AIR SCW 410 (in the case of Harman Electronics (P) Ltd. v. National Panasonic India Ltd.) has held that when an offence is committed in different place, anyone could be chosen as a place of trial. Therefore, the petitioner cannot derive any support from the orders of this court in Criminal Petition No. 4338/2009 dated 03.09.2009 and Criminal Petition No. 4183/2009 dated 29.10.2009
15. In a decision reported in (2011) 2 MLJ (Crl) 357 (in the case of Pritish Tewari v. Vista Security Technics Private Limited, rep. by its authorised Signatory Dharma Raj), the High Court of Judicature at Madras, referring to the judgments; (1) (2001) Crl. L.J 115 (Ahuja Nandakishore Dongre v. State of Maharashtra) (2) AIR 1999 SC 3762 (in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan) and AIR 2001 SC 1161 (in the case of Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd..) has held the courts which have jurisdiction to try an offence under section 138 of the Negotiable Instruments Act shall be
1) the place where the cheque has been drawn;
2) the place where the cheque returned unpaid by the drawee bank;
3) the place where, the statutory notice demanding payment of the cheque was served on the drawer.”
16. In view of the above discussion, I do not find any grounds to interfere with the impugned order. The petition is accordingly dismissed.