1. Heard Mr. Sanjanwala, Ld. Sr. Counsel for Mr. Dilip Kanojia, Ld. Advocate for the petitioners, Mr. MJ Patel, Ld. Advocate for respondent no. 2 - original complainant and Mr. Raval, Ld. APP for respondent no. 1 - State.
2. The instant application is filed to quash and set aside the order dated 8/9/2010 passed by the Ld. 10th Addl. Sr. Civil Judge and Addl. Chief Judicial Magistrate, Ahmedabad [Rural], below application Exh. 25 in Criminal Case No. 29148/2007 and seeking direction to return the complaint of the aforesaid Criminal Case to the respondent no. 2 - original complainant for its presentation before the appropriate Court.
3. Mr. Sanjanwala, Ld. Sr. counsel for the petitioners drew my attention to the case of K. Bhaskaran v/s. Sankaran Balan reported in [1999] 7 S.C.C. 510. In para. 14 in the said decision, it has been observed as under :-
"14. 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."
3.1. Mr. Sanjanwala, Ld.
Sr. Counsel submitted that in the instant case, the disputed cheque was drawn in Bombay, it came to be presented in bank in Bombay, the disputed cheque allegedly returned unpaid by the drawee bank at Bombay, the respondent no. 2 - original complainant issued notice in writing to the drawer of the cheque demanding the payment of the cheque amount in Bombay and the failure of the drawer to make payment occurred in Bombay. Mr. Sanjanwala, therefore, submitted that all the acts which collectively constitute the offence punishable under section 138 of the Negotiable Instrument Act [NI Act for short], did not take place within the local limits of the territorial jurisdiction of Ahmedabad Court. It is, therefore, submitted that the impugned order dated 8/9/2010 passed by the trial Court deserves interference. He further submitted that this petition is not filed for the purpose of quashment of the FIR, but with a view to invoke the provisions contained in section 201 of the Code of Criminal Procedure [Cr. P.C.]. It is, therefore, submitted that the criminal complaint of Criminal Case No. 29148/2007 pending before the trial Court shall be ordered to be returned to the respondent no. 2 - original complainant for its presentation to the concerned local Court in Bombay.
4. Mr. Patel, Ld. Advocate for respondent no. 2 original complainant vehemently opposed this application and drew my attention to the affidavit-in-reply filed by the respondent no. 2 as well as a communication dated 25/4/2007 and it is submitted that the order was placed at Ahmedabad and that even the disputed cheque was sent to Ahmedabad and, therefore, part of the cause of action can be said to have arisen within the territorial jurisdiction of Ahmedabad Court and, therefore, the application deserves dismissal. Mr. Patel, in support of his arguments, relied upon a decision rendered in the case of Shree Laxmi Agency - through its proprietor Mr. Mohanlal Gupta v/s. State of Gujarat reported in 2011 [26] GHJ 98.
5. Having considered the observations made by the Hon'ble Apex Court in K. Bhaskaran's case [supra], it becomes clear that the 5 components which are essential ingredients for the constitution of the offence punishable under section 138 of the NI Act are enumerated. Examining the factual scenerio of the instant case in light of those 5 components, there is no dispute that the incident of drawing of the cheque took place in Bombay, the cheque came to be presented to the bank in Bombay, the cheque allegedly returned unpaid by the drawee bank in Bombay, the respondent no. 2 - original complainant gave notice in writing to the drawer of the cheque demanding the payment of the cheque amount in Bombay and the failure of the drawer to make payment occurred in Bombay. Even the reply to the said notice was given in Bombay. When the above is the situation, the place where the order of the goods came to be placed is not one of the material ingredients stated in said para. 14 in the decision. The fact, therefore, remains that none of the eventualities enumerated in para. 14 in the said decision has taken place in Ahmedabad. To put it differently, prima-facie at this stage nothing transpires that this offence can be said to have been committed partly in Ahmedabad and partly in another area as contemplated under section 178 [b] of the Cr.P.C.
6. Considering Shree Laxmi Agency's case [supra], examining the facts of said case in para. 13 in said decision, this Court has observed that the original complainant had its head office at Ahmedabad, the transactions were alleged to have taken place at Ahmedabad, the cheques were reported to be issued at Ahmedabad and the same were deposited by the original complainant with their bank at Ahmedabad and even the statutory notices under section 138 of the Act were issued from Ahmedabad and the same were replied by the respective applicants at the address at Ahmedabad. In the aforesaid background, it was observed that it was very difficult to accept the contention on behalf of the respective applicants that the Courts at Ahmedabad would not have territorial jurisdiction. In the above view of the matter, the facts of the case relied upon are different and distinguishable than the facts of the instant case.
7. Resultantly, the petition deserves to be allowed and necessary direction is required to be issued to the concerned trial Court as contemplated under section 201 of the Cr. P.C.
8. For the foregoing reasons, the petition is allowed and the order dated 8/9/2010 passed by the Ld. 10th Addl. Sr. Civil Judge and Addl. Chief Judicial Magistrate, Ahmedabad [Rural] at Mirzapur, below application Exh. 25 in Criminal Case No. 29148/2007 is hereby quashed and set aside. The Ld. Judge is, therefore, directed to return the complaint to the respondent no. 2 - original complainant for its presentation to the appropriate Court in Bombay, under section 201 of the Cr. P.C.
(J.C.UPADHYAYA, J.) * pansala.
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