Shamshad Begum Vs. B.
Mohammed  INSC 1852 (3 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1715 OF 2008
(Arising out of SLP (Crl.) NO.73 of 2006) Smt. Shamshad Begum ....Appellant
Versus B. Mohammed ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Karnataka
High Court dismissing the petition filed under Section of the Code of Criminal
Procedure, 1973 (in short the `Code'). Prayer in the petition was to quash all
proceedings in CC No. 1042 of 2004 on the file of learned Vth JMF Court
Mangalore. Appellant is the accused in the aforesaid case in relation to an
offence punishable under Section 138 of the Negotiable Instruments Act, 1881(in
short the `Act'). The petition was filed before the High Court on the ground
that the Mangalore Court has no jurisdiction to try the case. It was stated
that the agreement between the parties was entered into Bangalore and the
parties live in Mangalore and the cheque were returned from the banks at
Bangalore and therefore the Bangalore Court has jurisdiction to try the case.
response, the respondent had submitted that before issuing notice to the appellant
he had shifted his residence to Mangalore and therefore he had issued the
notice from Mangalore which was received by the appellant and the reply was
sent by her to the complainant to the Mangalore address.
Therefore, as one of
the components of the said offence i.e. notice in writing to the drawer of the
cheque demanding payment of cheque amount was sent from Mangalore, Court at
Mangalore had jurisdiction to try the case. The High Court noted that one of
the components of the offence was giving notice in writing to the drawer of the
cheque demanding payment of the cheque amount. The said action took place
within Mangalore jurisdiction and, therefore, the petition was without merit.
It was however stated that if the presence of the appellant was not very
necessary for continuation of the proceeding, on appropriate application being
filed, the court can grant exemption from appearance.
support of the appeal learned counsel for the appellant submitted that the
Court at Mangalore had no jurisdiction.
counsel for the respondent on the other hand supported the judgment of the High
K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr. [1999(7) SCC 510], it was
inter alia observed as follows:
"15. 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
"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."
16. 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.
17. The more
important point to be decided in this case is whether the cause of action has
arisen at all as the notice sent by the complainant to the accused was returned
as "unclaimed". The conditions pertaining to the notice to be given
to the drawer, have been formulated and incorporated in clauses (b) to (c) of
the proviso to Section 138 of the Act. The said clauses are extracted below:
"(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 fifteen 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."
was noted in K. Bhaskar's case (supra) the offence under Section 138 of the Act
can be completed only with the concatenation of a number of acts. The acts
which are components are as follows:
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.
is not necessary that 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 concatenation of all the above five is sine qua
non for the completion of the offence under Section 138 of the Act.
view of the aforesaid, the judgment of the High Court does not suffer from any
infirmity to warrant interference.
appeal is dismissed.
(Dr. MUKUNDAKAM SHARMA)
Pages: 1 2