Musaraf
Hossain Khan Vs. Bhagheeratha Engg. Ltd. & Ors [2006] Insc 101 (24 February 2006)
S.B.
Sinha & P.K. Balasubramanyan
[Arising
out of SLP (C) No. 6656 of 2005] S.B. Sinha, J.
Leave
granted.
The
appellant herein filed a complaint petition in the court of Chief Judicial
Magistrate, Birbhum at Suri being CC No. 339 of 2004 alleging inter alia
therein that several cheques of diverse sums issued by the respondent herein
had been dishonoured, and, thus, they committed an offence punishable under
Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as
'the Act').
The
appellant herein entered into a contract with the Respondent No. 1 herein
(Company) for supply of stone chips. The company used to hand over post-dated cheques
to the appellant towards the price of stone chips as also transport, handling,
postage and other charges. The Company had issued six cheques of the following
description in favour of the appellant:
Sl.No.
Cheque
No.
Dated
Amount
-
455997
10.06.2004 Rs. 5,33,795
-
455998
10.07.2004 Rs. 5,33,795
-
455999
10.08.2004 Rs. 5,33,795
-
455993
10.06.2004 Rs. 6,49,085
-
455994
10.07.2004 Rs. 6,49,085
-
455995
10.08.2004 Rs. 6,49,085
Total:
Rs. 35,48,640 The aforementioned cheques were deposited with "Mayurakhi Gramin
Bank" Suri branch but they were returned by the Banker stating "full
cover not received". A demand notice was sent by the appellant demanding
payment of the said cheque to the respondent in September, 2004. Out of the
aforementioned sum of Rs. 35,48,640/- a sum of Rs. 5,33,795/- was paid by
respondent No. 4 on or about 15.9.2004. The appellant alleged that a sum of Rs.
30,14,845/- is still due and owing to him from the respondents. The respondents
admit the claim of the appellant. They are said to have assured him that the
rest of the amount shall be paid, but the same has not been done.
The
appellant on the aforementioned allegations filed a complaint petition in the
court of Chief Judicial Magistrate, Birbhum at Suri which was registered as CC
No. 339 of 2004. By an order dated 10.11.2004 the Chief Judicial Magistrate
upon examining the appellant on oath took cognizance of the said offence
stating:
".Hd.
Considered. Cog. Is taken. Examined the complainant Mosaraf Hossain on S/A. A
Prima facie case has been made out against the accused persons u/s. 138 N.I.
Act. Issue summons upon the accds Persons at once. To 3/2/05 for S/R & appear." The respondents allegedly
received the summons sent to them at Kolaghat, Midnapore, West Bengal.
Despite
receipt of the summons instead of appearing before the Court of the Chief
Judicial Magistrate, Birbhum at Suri, the respondents filed a writ petition in
the High Court of Kerala at Ernakulam which was registered as W.P. (C) No. 2666
of 2005 praying, inter alia, for the following reliefs :
-
" declare
that the petitioners herein are not liable to be proceeded against on the basis
of Ext. P4 complaint;
-
declare that the
petitioners herein are not liable to be proceeded against on the basis of Ext.
P4 complaint;
-
issue an
appropriate writ, order or direction quashing Ext. P4 complaint; " Interim
relief by way of stay of all further proceedings pursuant to the said complaint
petition including the arrest of the petitioners; pending final disposal of the
said writ petition was also prayed for.
A
learned Single Judge of the Kerala High Court on 25.1.2005 passed the following
order:
"Notice
and interim stay for six months." The said order of stay is said to have
been extended from time to time. It is not disputed that the respondents herein
undertook the work of construction of major bridges between Dhankuni & Kharagpur
in the State of West
Bengal as a part of
ongoing project of the National Highway Authority of India to widen and
strengthen the National
Highway. It is
furthermore not in dispute that for the purpose of executing the said work the
company entered into an engineering contract with the National Highway
Authority of India.
In the
writ petition, it was stated:
"The
1st respondent herein a stone quarry owner, is a person who supplied crushed
stone aggregates a raw material that was needed for the aforesaid work
undertaken by the 1st petitioner company. He along with another had entered
into an agreement with the 1st petitioner company in that behalf, pursuant to
which the supply was made. The 1st petitioner company gave good business to the
1st respondent, paying him for than Rs. 3 crores in the transaction. However,
towards the end of the transactions, due to the aforesaid financial imbroglio
in which the 1st petitioner company was placed in, an outstanding amount of
about 35 lakhs remained payable to the 1st respondent herein. There is no
question of the 1st petitioner company running away from its responsibility of
paying the amount due but it needed some time to augment its resources in the
context of the aforementioned financial entanglement it found itself in."
[Emphasis supplied] It was accepted that for securing the payment for supply of
stone chips post-dated cheques used to be given. The reason for bouncing of the
said cheques is said to be that all of them were presented without prior
information to the Company. The respondents further averred in the writ
petition that the National Highway Authority had not paid them a sum of Rs. 5.5
crores. However, the statements made in the complaint petition to the effect
that a payment of a sum of Rs. 5,33,795/- out of the total demand of
Rs.35,48,640/- was made, had been admitted. Some purported questions of law
have been raised in the said writ petition contending as to why the order
taking cognizance was bad in law including that in term of Section 219 of the
Code of Criminal Procedure the first respondent could not file one complaint in
respect of all the dishonoured five cheques.
The
contention of the learned counsel appearing on behalf of the respondent is that
as the cheques having been issued from the registered office of the respondent
company, a part of cause of action arose within the jurisdiction of the Kerala
High Court. Strong reliance in this behalf has been placed on by the learned
counsel in Navinchandra N. Majithia vs. State of Maharashtra [(2000) 7 SCC 640] and a decision of the learned Single
Judge of the Kerala High Court in Augustine vs. Omprakash Nanakram [2001 (2)
KLT 638].
The
primary question, which arises for consideration, is as to whether the Kerala
High Court had jurisdiction in the matter.
In the
writ petition, the jurisdiction of the High Court was invoked stating:
"It
is in these circumstances that the petitioners herein are approaching this Hon'ble
court with a prayer to quash Ext. P4 complaint. It is respectfully that this Hon'ble Court has the necessary jurisdiction to
interfere in the matter in as much as part of the cause of action arose within
the territorial jurisdiction of this Hon'ble court. The registered and Head
Office of the 1st Petitioner Company is at Vazhakkala, Kakkanad, Ernakulam and
the amount due under the cheques that are the subject matter of Ext. P4
complaint was meant to be payable at Ernakulam. In fact out of the 6 dishonoured
cheques, payment in respect of one cheque was sent from Ernakulam along with
Ext. P2 reply." In Navinchandra N. Majithia (supra) a contract was entered
into by and between a company, Indian Farmers Pvt. Ltd. (IFPL) and Chinar Exort
Ltd. (CEL). The appellant therein was the Managing Director of the IFPL company.
CEL entered into an agreement with IFPL for purchase of the entire shares of
IFPL for which it paid earnest money. It, however, failed to fulfil its
commitment to pay the balance purchase price within the specified time. The
IFPL terminated the agreement. A suit was filed by CEL in the High Court of
Bombay for specific performance of the said agreement. Two shareholders of CEL
took over management and control of the company as Directors and they formed
another company named JBHL at Shilong in the State of Meghalaya. Later the said suit was withdrawn
upon the appellant's returning the amount paid by CEL which was earlier
forfeited by the appellant. Pursuant to the said agreement JBHL made payments for
the purchase of shares of IFPL. But the appellant therein contended that as
JBHL committed default in making the balance payment and thereby committed
breach of the agreement, the said agreement stood terminated and the earnest
money stood forfeited as stipulated in the agreement. In the aforementioned
situation a complaint was filed by the JBHL against the appellant at Shillong.
The maintainability of the said complaint came to be questioned by Majithia by
filing a writ petition before the Bombay High Court which was dismissed. Writ
jurisdiction under Article 226 of the Constitution was invoked on the ground
that the entire transaction on which the complaint was based had taken place at
Mumbai and not at any other place outside the said town, much less at Shillong.
It was further contended that the jurisdiction to investigate into the contents
of the complaint was only with the police/courts in Mumbai. The prayers made in
the said writ petition were:
-
" to quash
the complaint lodged by JBHL or in the alternative to issue a writ of mandamus
directing the State of Maghalaya to transfer the investigation being conducted
by the officers of CID at Shillong to the Economic Offences Wing, General
Branch of CID, Mumbai or any other investigating agency of the Mumbai Police,
and
-
to issue a writ
of prohibition or any other order or direction restraining the Special SP
Police, CID, Shillong and/or any investigating agency of the Meghalaya Police
from taking any further step in respect of the complaint lodged by JBHL with
the police authorities at Shillong." The said writ petition, as indicated
hereinbefore, was dismissed by the Bombay High Court. This Court reversed the
said order opining that the entire cause of action arose within the
jurisdiction of the High Court of Bombay. Upon noticing some earlier decisions
of this Court, it was observed :
"Tested
in the light of the principles laid down in the cases noted above the judgment
of the High Court under challenge is unsustainable. The High Court failed to
consider all the relevant facts necessary to arrive at a proper decision on the
question of maintainability of the writ petition, on the ground of lack of
territorial jurisdiction. The Court based its decision on the sole
consideration that the complainant had filed the complaint at Shillong in the
State of Meghalaya and the petitioner had prayed for
quashing the said complaint.
The
High Court did not also consider the alternative prayer made in the writ
petition that a writ of mandamus be issued to the State of Meghalaya to transfer the investigation to
Mumbai Police. The High Court also did not take note of the averments in the
writ petition that filing of the complaint at Shillong was a mala fide move on
the part of the complainant to harass and pressurise the petitioners to reverse
the transaction for transfer of shares. The relief sought in the writ petition
may be one of the relevant criteria for consideration of the question but
cannot be the sole consideration in the matter. On the averments made in the
writ petition gist of which has been noted earlier it cannot be said that no
part of the cause of action for filing the writ petition arose within the
territorial jurisdiction of the Bombay High Court." In Augustine (supra) a
learned Single Judge of the Kerala High Court again on arriving at a finding of
fact obtaining therein was of the opinion that the cause of action, therefore,
arose within the jurisdiction of the Kerala High Court. It was, however,
rightly held:
"So
far as the question of territorial jurisdiction with reference to a criminal
offence is concerned, the main factor to be considered is the place where the
alleged offence was committed." Cause of action within the meaning of
clause (2) of Article 226 shall have the same meaning as is ordinarily understood.
The expression 'Cause of action' has a definite connotation. It means a bundle
of facts which would be required to be proved.
In
State of Rajasthan & Ors. vs. M/s Swaika
Properties & Anr. [(1985) 3 SCC 217] this Court observed that service of notice
was not an integral part of 'cause of action' within the meaning of Article 226
(2) of the Constitution of India.
In Aligarh Muslim University & Anr. vs. Vinay Engineering
Enterprises Pvt. Ltd. & Anr. [(1994) 4 SCC 710] a three Judge Bench opined
that only because the office of the firm was at Calcutta, the High Court of
Calcutta could not exercise any jurisdiction, stating :
"We
are constrained to say that this is a case of abuse of jurisdiction and we feel
that the respondent deliberately moved the Calcutta High Court ignoring the
fact that no part of the cause of action had arisen within the jurisdiction of
that Court. It clearly shows that the litigation filed in the Calcutta High
Court was thoroughly unsustainable." Yet again in Oil and Natural Gas
Commission vs. Utpal Kumar Basu & Ors. [(1994) 4 SCC 711] it was held that
a party becoming aware of the contract to be given to a successful bidder
"ONGC" on reading the advertisement, which appeared in the Times of
India at Calcutta or sending representations or fax messages submitting tender
from its Calcutta Office pursuant to the said advertisement, would not confer
any cause of action on the Calcutta High Court, stating:
"Therefore,
broadly speaking, NICCO claims that a part of the cause of action arose within
the jurisdiction of the Calcutta High Court because it became aware of the
advertisement in Calcutta, it submitted its bid or tender from Calcutta and
made representations demanding justice from Calcutta on learning about the
rejection of its offer. The advertisement itself mentioned that the tenders
should be submitted to EIL at New Delhi;
that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer
would be taken at New
Delhi. Of course, the
execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read
the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion,
constitute facts forming an integral part of the cause of action. So also the
mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action." In Nakul
Deo Singh v. Deputy Commandant [1999 (3) KLT 629], a Full Bench of the Kerala
High Court speaking through one of us, P.K. Balasubramanyan, J., while
considering the question as to whether receipt of an order passed by an
appellate authority in a disciplinary proceeding would constitute cause of
action, upon noticing the definition thereof as stated in Mulla's Code of Civil
Procedure, 15th Edn., Vol. 1 at page 251 and a decision of the Court of Appeal
in Paragon Finance v. D.B. Thakerar & Co. [(1999) 1 All ER 400], opined :
"The
fact that a person who was dismissed from service while he was in service
outside the State would have to suffer the consequence of that dismissal when
he is in his native place by being rendered jobless, is not a fact which
constitutes the bundle of facts giving rise to a cause of action in his favour
to challenge his dismissal. That right accrued to him earlier when he was
dismissed from service outside the State and he lost his employment. Similarly,
when an appeal is filed by him to an appellate authority who is outside the
jurisdiction of this High Court and that appeal is dismissed by the appellate
authority, the merger in the decision of the Appellate Authority takes place
when the appeal is dismissed and not when the appellant receives the order.
What a writ petitioner need plead as a part of his cause of action is the fact
that his appeal was dismissed wholly or in part and not the fact that the order
was communicated to him. That plea is relevant only to show when the right of
action arose in his favour. The receipt of the order only gives him a right of
action on the already accrued cause of action and enables him to meet a plea of
laches or limitation raised in opposition. That the consequences of a
proceeding in the larger sense are suffered by a person in his native place is
not a ground to hold that the High Court within the jurisdiction of which the
native place is situate is also competent to entertain a Writ Petition under
Art.
226 of
the Constitution. When a person is dismissed or reduced in rank, he suffers the
consequences where he was employed at the relevant time and not in his native
place to which he might have retired on his dismissal." In Union of India
and Others v. Adani Exports Ltd. and Another [(2002) 1 SCC 567], this Court observed
:
"It
is seen from the above that in order to confer jurisdiction on a High Court to
entertain a writ petition or a special civil application as in this case, the
High Court must be satisfied from the entire facts pleaded in support of the cause
of action that those facts do constitute a cause so as to empower the court to
decide a dispute which has, at least in part, arisen within its jurisdiction.
It is clear from the above judgment that each and every fact pleaded by the
respondents in their application does not ipso facto lead to the conclusion
that those facts give rise to a cause of action within the court's territorial
jurisdiction unless those facts pleaded are such which have a nexus or
relevance with the lis that is involved in the case. Facts which have no
bearing with the lis or the dispute involved in the case, do not give rise to a
cause of action so as to confer territorial jurisdiction on the court concerned"
It is no doubt true that in a criminal matter also the High Court may exercise
its extra-ordinary writ jurisdiction but interference with an order of
Magistrate taking cognizance under Section 190 of the Code of Criminal
Procedure will stand somewhat on a different footing as an order taking
cognizance can be the subject matter of a revisional jurisdiction as well as of
an application invoking the inherent jurisdiction of the High Court. A writ of
certiorari ordinarily would not be issued by a writ court under Article 226 of
the Constitution of India against a Judicial Officer. [See Naresh Shridhar Mirajkar
& Ors. vs. State of Maharashtra & Anr. [AIR 1967 SC 1 : (1966)
3 SCR 744]. However, we are not oblivious of a decision of this Court in Surya
Dev Rai vs. Ram Chander Rai & Ors. [(2003) 6 SCC 675] wherein this court
upon noticing Naresh Shridhar Mirajkar (supra) and also relying on a
Constitution Bench of this Court in Rupa Ashok Hurra vs. Ashok Hurra [(2002) 4
SCC 388] opined that a Judicial Court would also be subject to exercise of writ
jurisdiction of the High Court. The said decision has again been followed in Ranjeet
Singh vs. Ravi Prakash [(2004) 3 SCC 692]. It is, however, not necessary to
dilate on the matter any further. The jurisdiction of the High Court under
Section 482 of Code of Criminal Procedure was noticed recently by this Court in
State of U.P. & Ors. vs. Surendra Kumar [(2005) 9 SCC 161] holding that
even in terms thereof, the court cannot pass an order beyond the scope of the
application thereof. In Surya Dev Rai (supra), we may however, notice that this
Court categorically stated that the High Court in issuing a writ of certiorari
exercises a very limited jurisdiction. It also made a distinction between
exercise of jurisdiction by the High Court for issuance of a writ of certiorari
under Article 226 and 227 of the Constitution of India. It categorically laid
down that while exercising its jurisdiction under Article 226, the High Court
can issue a writ of certiorari only when an error apparent on the face of the
record appears as such; the error should be self evident. Thus, an error
according to this Court needs to be established. As regards exercising the
jurisdiction under Article 227 of the Constitution of India it was held:
".The
power may be exercised in cases occasioning grave injustice or failure of
justice such as when
-
the court or
tribunal has assumed a jurisdiction which it does not have,
-
has failed to
exercise a jurisdiction which it does have, such failure occasioning a failure
of justice, and
-
the jurisdiction
though available is being exercised in a manner which tantamounts to
overstepping the limits of jurisdiction." In Kusum Ingots & Alloys
Ltd. vs. Union of India & Anr. [(2004) 6 SCC
254] a three Judge Bench of this Court clearly held that with a view to
determine the jurisdiction of one High Court viz.-a-viz the other the facts
pleaded in the writ petition must have a nexus on the basis whereof a prayer
can be made and the facts which have nothing to do therewith cannot give rise
to a cause of action to invoke the jurisdiction of a court. In that case it was
clearly held that only because the High Court within whose jurisdiction a
legislation is passed, it would not have the sole territorial jurisdiction but
all the High Courts where cause of action arises, will have jurisdiction.
Distinguishing,
however, between passing of a legislation by a Legislature of the State and an
order passed by the Tribunal or Executive Authority, it was held:
"When
an order, however, is passed by a court or tribunal or an executive authority
whether under provisions of a statute or otherwise, a part of cause of action
arises at that place. Even in a given case, when the original authority is
constituted at one place and the appellate authority is constituted at another,
a writ petition would be maintainable at both the places. In other words, as
order of the appellate authority constitutes a part of cause of action, a writ
petition would be maintainable in the High Court within whose jurisdiction it
is situate having regard to the fact that the order of the appellate authority
is also required to be set aside and as the order of the original authority
merges with that of the appellate authority.
Lt.
Col. Khajoor Singh v. Union of India whereupon the learned counsel appearing on
behalf of the appellant placed strong reliance was rendered at a point of time
when clause (2) of Article 226 had not been inserted. In that case the Court
held that the jurisdiction of the High Court under Article 226 of the
Constitution of India, properly construed, depends not on the residence or
location of the person affected by the order but of the person or authority
passing the order and the place where the order has effect. In the latter
sense, namely, the office of the authority which is to implement the order
would attract the territorial jurisdiction of the Court was considered having
regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the
Constitution thence stood, stating:
(AIR
p.540, para 16) "The concept of cause of action cannot in our opinion be
introduced in Article 226, for by doing so we shall be doing away with the
express provision contained therein which requires that the person or authority
to whom the writ is to be issued should be resident in or located within the
territories over which the High Court has jurisdiction. It is true that this
may result in some inconvenience to persons residing far away from New Delhi who are aggrieved by some order of
the Government of India as such, and that may be a reason for making a suitable
constitutional amendment in Article 226. But the argument of inconvenience, in
our opinion, cannot affect the plain language of Article 226, nor can the
concept of the place of cause of action be introduced into it for that would do
away with the two limitations on the powers of the High Court contained in
it." In Union of India and Others vs. Adani Exports Ltd. & Another
[(2002) 1 SCC 567], this Court observed :
"17.
It is seen from the above that in order to confer jurisdiction on a High Court
to entertain a writ petition or a special civil application as in this case,
the High Court must be satisfied from the entire facts pleaded in support of
the cause of action that those facts do constitute a cause so as to empower the
court to decide a dispute which has, at least in part, arisen within its
jurisdiction. It is clear from the above judgment that each and every fact
pleaded by the respondents in their application does not ipso facto lead to the
conclusion that those facts give rise to a cause of action within the court's
territorial jurisdiction unless those facts pleaded are such which have a nexus
or relevance with the lis that is involved in the case. Facts which have no
bearing with the lis or the dispute involved in the case, do not give rise to a
cause of action so as to confer territorial jurisdiction on the court
concerned. ." We have referred to the scope of jurisdiction under Articles
226 and 227 of the Constitution only to highlight that the High Courts should
not ordinarily interfere with an order taking cognizance passed by a competent
court of law except in a proper case. Furthermore only such High Court within
whose jurisdiction the order of subordinate court has been passed, would have
the jurisdiction to entertain an application under Article 227 of the Constitution
of India unless it is established that the earlier cause of action arose within
the jurisdiction thereof.
The
High Court, however, must remind themselves about the doctrine of forum non conveniens
also. [See Mayar (H.K) Ltd.& Ors. vs. Owners & Parties Vessel M.V.
Fortune Express & Ors. - 2006 (2) SCALE 30] In terms of Section 177 of the
Code of Criminal Procedure every offence shall ordinarily be inquired into and
tried by a court within whose local jurisdiction it was committed. Section 178
provides for place of inquiry or trial in the following terms:
-
" When it
is uncertain in which of several local areas an offence was committed, or
-
where an offence
is committed partly in one local area and partly in another, or
-
where an offence
is a continuing one, and continues to be committed in more local areas than
one, or
-
where it
consists of several acts done in different local areas." A bare perusal of
the complaint petition would clearly go to show that according to the
complainant the entire cause of action arose within the jurisdiction of the
district courts of Birbhum and in that view of the matter it is that court
which will have jurisdiction to take congnizance of the offence.
In
fact the jurisdiction of the court of CJM, Suri, Birbhum is not in question. It
is not contended that the complainant had suppressed material fact and which if
not disclosed would have demonstrated that the offence was committed outside
the jurisdiction of the said court. Even if Section 178 of the Code of Criminal
Procedure is attracted, the court of the Chief Judicial Magistrate, Birbhum
will alone have jurisdiction in the matter.
Sending
of cheques from Ernakulam or the respondents having an office at that place did
not form an integral part of 'cause of action' for which the complaint petition
was filed by the appellant and cognizance of the offence under Section 138 of
the Negotiable Instruments Act, 1881 was taken by the Chief Judicial
Magistrate, Suri. We may moreover notice that the situs of the accused wherefor
jurisdiction of a court can be invoked and which is an exception to the
aforementioned provisions as contained in Section 188 of the Code of Criminal
Procedure recently came up for consideration by this court in Om Hemrajani vs.
State of U.P. & Anr. [(2005) 1 SCC 617]. It was held that the said
provisions may be interpreted widely. The law was laid down in the following terms
:
"Section
177 postulates that ordinarily offence shall be inquired into and tried by a
court within whose local jurisdiction it was committed. Section 178, inter alia,
deals with situations when it is uncertain in which of several local areas, an
offence is committed or partly committed in one area and partly in another. The
section provides that the offence can be inquired into or tried by a court
having jurisdiction over any of the local areas mentioned therein. Under
Section 179, offence is triable where act is done or consequences thereof
ensued.
Section
180 deals with the place of trial where act is an offence by reason of its relation
to other offence. It provides that the first-mentioned offence may be inquired
into or tried by a court within whose local jurisdiction either act was done.
In all these sections, for jurisdiction the emphasis is on the place where the
offence has been committed. There is, however, a departure under Section 181(1)
where additionally place of trial can also be the place where the accused is
found, besides the court within whose jurisdiction the offence was committed.
But the said section deals with offences committed by those who are likely to
be on the move which is evident from the nature of offences mentioned in the
section. Section 181(1) is in respect of the offences where the offenders are
not normally located at a fixed place and that explains the departure. Section
183 deals with offences committed during journey or voyage. Section 186 deals
with situation where two or more courts take cognizance of the same offence and
in case of doubt as to which one of the courts has jurisdiction to proceed further,
the High Court decides the matter. Section 187 deals with a situation where a
person within the local jurisdiction of a Magistrate has committed an offence
outside such jurisdiction. The Magistrate can compel such a person to appear
before him and then send him to the Magistrate which has jurisdiction to
inquire into or try such offence.
-
Under the
aforesaid circumstances, the expression abovenoted in Section 188 is to be
construed. The same expression was also there in the old Code. From the scheme
of Chapter XIII of the Code, it is clear that neither the place of business nor
place of residence of the petitioner and for that matter of even the
complainant is of any relevance. The relevant factor is the place of commission
of offence. By legal fiction, Section 188 which deals with offence committed
outside India, makes the place at which the
offender may be found, to be a place of commission of offence. Section 188
proceeds on the basis that a fugitive from justice may be found anywhere in India. The finding of the accused has to
be by the court where the accused appears. From the plain and clear language of
the section, it is evident that the finding of the accused cannot be by the
complainant or the police. Further, it is not expected that a victim of an
offence which was committed outside India should come to India and first try to ascertain where
the accused is or may be and then approach that court. The convenience of such
a victim is of importance. That has been kept in view by Section 188 of the
Code. A victim may come to India and
approach any court convenient to him and file complaint in respect of offence
committed abroad by an Indian.
The
convenience of a person who is hiding after committing offence abroad and is a
fugitive from justice is not relevant. It is in this context, the expression in
question has to be interpreted. Section 188 has been the subject-matter of
interpretation for about 150 years." In this case, the averments made in
the writ petition filed by the respondent herein even if given face value and
taken to be correct in their entirety would not confer any jurisdiction upon
the Kerala High Court. The agreement was entered into within the jurisdiction
of the Calcutta High Court. The project for which the supply of stone chips and
transportation was being carried out was also within the State of West Bengal. Payments were obviously required
to be made within the jurisdiction of the said court where either the contract
had been entered into or where payment was to be made.
The appellant
did not deny or dispute any of the averments made in the complaint petition. In
the writ petition it merely wanted some time to make the payment. It is now
well known that the object of the provision of Section 138 of the Act is that
for proper and smooth functioning of business transaction in particular, use of
cheques as negotiable instruments would primarily depend upon the integrity and
honesty of the parties. It was noticed that cheques used to be issued as a
device inter alia for defrauding the creditors and stalling the payments. It
was also noticed in a number of decisions of this Court that dishonour of a cheque
by the bank causes incalculable loss, injury and inconvenience to the payee and
the entire credibility of the business transactions within and outside the
country suffers a serious setback. It was also found that the remedy available
in a civil court is a long-drawn process and an unscrupulous drawer normally
takes various pleas to defeat the genuine claim of the payee.
[See Goa Plast (P) Ltd. vs. Chico Ursula D'Souza -(2004) 2 SCC 235] and Monaben Ketanbhai
Shah and Anr. vs. State of Gujarat & Ors. - (2004) 7 SCC 15].
In Prem
Chand Vijay Kumar vs. Yashpal Singh & Anr. [(2005) 4 SCC 417], we may,
however, notice that it was held that for securing conviction under Negotiable
Instruments Act, 1881 the facts which are required to be proved are:
-
" that the cheque
was drawn for payment of an amount of money for discharge of a debt/liability
and the cheque was dishonoured;
-
that the cheque
was presented within the prescribed period;
-
that the payment
made a demand for payment of the money by giving a notice in writing to the
drawer within the stipulated period; and
-
that the drawer
failed to make the payment within 15 days of the receipt of the notice."
For the purpose of proving the aforementioned ingredients of the offence under
Section 138 of the Act, the complainant-appellant was required to prove the
facts constituting the cause of action therefor none of which arose within the
jurisdiction of the Kerala High Court. It is, apt to mention that In Prem Chand
Vijay Kumar (supra) this Court held that cause of action within the meaning of
Section 142 (b) of the Act can arise only once.
For
the reasons aforementioned, we are of the opinion that the Kerala High Court
had no jurisdiction to entertain the writ petition as no part of cause of
action arose within its jurisdiction.
For
the foregoing reasons this appeal is allowed. The impugned Judgment and order
is set aside. Interim orders passed by the High Court shall stand vacated. The
respondent shall now appear before the court concerned.
In the
facts and circumstances of the case, appellants are entitled to costs which is
assessed at Rs. 10,000/-.
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