BHASKARAN
The legal position regarding jurisdiction
of the courts for the purposes of Section 138 offences was laid down in the case
of K. Bhaskaran vs Sankaran Vaidhyan
Balan & Anr [1]. In this landmark judgement, the Hon’ble
Supreme Court laid down five essential components as follows:
of the courts for the purposes of Section 138 offences was laid down in the case
of K. Bhaskaran vs Sankaran Vaidhyan
Balan & Anr [1]. In this landmark judgement, the Hon’ble
Supreme Court laid down five essential components as follows:
“The offence under Section 138 of the Act can be
completed only with the concatenation of a number of acts. 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.”
completed only with the concatenation of a number of acts. 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.”
“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
5 different localities. But 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 below:
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
5 different localities. But 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 below:
Where the offence consists of several acts done in different local areas, it may
be inquired into or tried by a Court having jurisdiction over any of such local
areas.”
be inquired into or tried by a Court having jurisdiction over any of such local
areas.”
“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…..”
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…..”
DASHRATH
RUPSINGH RATHOD
RUPSINGH RATHOD
The Hon’ble Supreme Court, however, in
a very recent judgement, Dashrath Rupsingh Rathod vs State of Maharashtra,
overruled its earlier decision (Bhaskaran). In Dashrath Rupsingh Rathod vs State of Maharashtra[2],
the Hon’ble Court stated that a reading of Section 138 NI Act in
conjunction with Section 177, Code of Criminal Procedure leaves no manner
of doubt that the return of the cheque by the drawee bank alone constitutes the
commission of the offence and indicates the place where the offence is
committed.
The
place, situs or venue of judicial inquiry and trial of the offence must
logically be restricted to where the drawee bank, is located. An interpretation
should not be imparted to Section 138 which will render it as a
device of harassment i.e. by sending notices from a place which has no casual
connection with the transaction itself, and/or by presenting the cheque(s) at
any of the banks where the payee may have an account…..……The territorial jurisdiction is restricted
to the Court within whose local jurisdiction the offence was committed, which
in the present context is where the cheque is dishonoured by the bank on which
it is drawn.”
a very recent judgement, Dashrath Rupsingh Rathod vs State of Maharashtra,
overruled its earlier decision (Bhaskaran). In Dashrath Rupsingh Rathod vs State of Maharashtra[2],
the Hon’ble Court stated that a reading of Section 138 NI Act in
conjunction with Section 177, Code of Criminal Procedure leaves no manner
of doubt that the return of the cheque by the drawee bank alone constitutes the
commission of the offence and indicates the place where the offence is
committed.
The
place, situs or venue of judicial inquiry and trial of the offence must
logically be restricted to where the drawee bank, is located. An interpretation
should not be imparted to Section 138 which will render it as a
device of harassment i.e. by sending notices from a place which has no casual
connection with the transaction itself, and/or by presenting the cheque(s) at
any of the banks where the payee may have an account…..……The territorial jurisdiction is restricted
to the Court within whose local jurisdiction the offence was committed, which
in the present context is where the cheque is dishonoured by the bank on which
it is drawn.”
RAMANBHAI
MATHURBHAI PATEL
MATHURBHAI PATEL
The Bombay High Court further confirmed
the decision of Dashrath Roopsingh in
Ramanbhai Mathurbhia Patel. The issue
that required adjudication in this case was “………which Court will have
territorial jurisdiction to try the offence punishable u/s. 138 of
Negotiable Instruments Act, when the cheque payable at all branches of the
drawee bank has been dishonoured by one of the branches of the drawee bank.”
the decision of Dashrath Roopsingh in
Ramanbhai Mathurbhia Patel. The issue
that required adjudication in this case was “………which Court will have
territorial jurisdiction to try the offence punishable u/s. 138 of
Negotiable Instruments Act, when the cheque payable at all branches of the
drawee bank has been dishonoured by one of the branches of the drawee bank.”
“In the present case, the drawer had
accounts at Gandhi Nagar branches of the two banks mentioned herein above and
cheques have been dishonoured by the branches of the said two banks situated
within the jurisdiction of Metropolitan Magistrate, Kurla. The question which
arises for determination is as to whether the payee has to file complaint in
the Court of Magistrate having jurisdiction over Gandhi Nagar branches or the
branches which have dishonoured cheques…….”
accounts at Gandhi Nagar branches of the two banks mentioned herein above and
cheques have been dishonoured by the branches of the said two banks situated
within the jurisdiction of Metropolitan Magistrate, Kurla. The question which
arises for determination is as to whether the payee has to file complaint in
the Court of Magistrate having jurisdiction over Gandhi Nagar branches or the
branches which have dishonoured cheques…….”
The Hon’ble High Court of Bombay
further held “……..It is thus clear that in the present case by issuing cheques
payable at all branches, the drawer of the cheques had given an option to the banker
of payee to get the cheques cleared from the nearest available branch of bank
of the drawer. It, therefore, follows that the cheques have been dishonoured
within the territorial jurisdiction of Court of Metropolitan Magistrate at
Kurla……”
further held “……..It is thus clear that in the present case by issuing cheques
payable at all branches, the drawer of the cheques had given an option to the banker
of payee to get the cheques cleared from the nearest available branch of bank
of the drawer. It, therefore, follows that the cheques have been dishonoured
within the territorial jurisdiction of Court of Metropolitan Magistrate at
Kurla……”
Therefore, in case of cheques which may be presented before any branch
of the bank in which the payer has an account, the jurisdiction may be of the
Court having jurisdiction over the branch of the bank where the cheque has been
dishonoured.
