Full Judgment Text
REPORTABLE
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
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge
of the Karnataka High Court dismissing the petition filed under Section 482
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.
3. In 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
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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.
4. In support of the appeal learned counsel for the appellant submitted
that the Court at Mangalore had no jurisdiction.
5. Learned counsel for the respondent on the other hand supported the
judgment of the High Court.
6. In 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
below:
“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.”
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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.”
7. As 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;
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(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.
8. It 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.
9. In view of the aforesaid, the judgment of the High Court does not
suffer from any infirmity to warrant interference.
10. The appeal is dismissed.
……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………….……J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi:
November 3, 2008
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