Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 19971998 OF 2013
(arising out of SLP(Crl.)Nos.25952596 of 2013)
DEVENDRA KISHANLAL DAGALIA … APPELLANT
VERUS
DWARKESH DIAMONDS PVT. LTD. AND ORS. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted. These appeals have been preferred by
the appellantcomplainant against the judgment and
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order dated 6 December, 2012 passed by the High Court
of Judicature at Bombay in Criminal Writ Petition
Nos.3992 and 3993 of 2011. By the impugned judgment
the High Court set aside the order passed by Sessions
Judge in CRA No.301 of 2010 and upheld the order passed
by the Special Metropolitan Magistrate.
2. The appellant filed complaints being CC
No.3142/SS/2008 and CC No.3286/SS/2008 under Section
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138 of Negotiable Instruments Act (hereinafter referred
to as ‘the N.I. Act’) in the Court of the Special
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Metropolitan Magistrate at Small Causes Court on 28
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Magistrate after recording of the presummoning
evidence issued summons on the accused under Section
204 Cr.P.C. The accusedrespondents 1, 2 & 3 then
filed application under Section 201 Cr.P.C. for return
of complaint for want of jurisdiction. They alleged
that the entire transaction took place at New Delhi and
only the legal notice was issued from Mumbai and hence
the learned Magistrate has no jurisdiction to try and
entertain the complaint. A similar application was
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filed by the accused in CC No.3286/SS/2008. Thereafter,
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the learned Magistrate by order dated 5 January, 2010
allowed the application under Section 201 Cr.P.C. and
returned the complaint for want of jurisdiction. A
similar order was passed by the learned Magistrate in
CC No.3286/SS/2008.
3. Being aggrieved, the appellantcomplainant filed
Criminal Revision Applications Nos.301 & 302 of 2010
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before the Sessions Court, Greater Bombay. Learned
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Sessions Judge by the judgment and order dated 2
November, 2011 allowed the criminal revision
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Magistrate and the matter was remitted back to the
Magistrate. However, at the instance of Respondent
Nos.1, 2 & 3 the order passed by the Sessions Judge was
set aside by the High Court by the order impugned.
4. Learned counsel appearing on behalf of the
appellant submitted that the Magistrate after finding
sufficient ground for proceeding and after issuance of
summons under Section 204 Cr.P.C., has no jurisdiction
to recall or review the order by exercising power under
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Section 201 Cr.P.C. It is further contended that the
High Court failed to consider the aforesaid fact and
has no answer to the issue as was raised and decided by
the learned Magistrate. Further, according to the
learned counsel for the appellant, in the matter under
Section 138 of the N.I.Act the appellant having been
issued legal notice from Mumbai, the Magistrate has
jurisdiction to try and entertain the complaint.
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5. Per contra, according to the learned counsel for
the respondents, the High Court of Bombay has taken due
course and settled all the questions raised in the
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by the appellant is silent with regard to place where
(a) the order was given by the respondent; (b) goods
were supplied; (c) the payment was agreed to be made:
(d) the cheques in question were issued: (e) the
cheques in question were dishonoured and (f) the
parties to the petition intended to make and receive
the same. It is accepted that the notice in question
was issued from Mumbai. It is contended that issuance
of notice would not by itself give rise to a cause of
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action for filing the complaint at Mumbai.
6. Further, according to the respondents the appellant
has concealed the relevant facts purposefully,
particularly the fact that the entire transaction had
taken place at Delhi and, therefore, the Magistrate
has returned the complaint under Section 201 Cr.P.C.
7. We have heard learned counsel for the parties and
perused the record.
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8. The main questions involved in the present case are
:
(i) Whether the Magistrate after having found
sufficient ground for proceeding in case and
issued summons under Section 204 Cr.P.C. has
the jurisdiction to recall or review the order
by exercising its power under Section 201
Cr.P.C.; and
(ii) Whether the petition under Section 138 of
the N.I. Act was maintainable at Mumbai on the
ground that goods were supplied from Mumbai to
Delhi and cheques were handed over at Mumbai
and legal notice was issued from Mumbai.
9. To decide the issue, it is necessary to notice the
relevant provisions of the Cr.P.C. as discussed
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hereunder:
Chapter XV of Cr.P.C. relates to complaints to the
Magistrates whereas Chapter XVI relates to commencement
of proceedings before the Magistrates.
10. Section 200 of Cr.P.C. relates to examination of
complaint. A Magsitrate taking cognizance of an offence
on complaint is required to examine the complaint and
both the complainant and witness present, if any. On
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such examination of the complaint and the witness, if
the Magistrate is of the opinion that there is no
ground for proceeding, he has to dismiss the complaint
under Section 203 Cr.P.C.
11. Section 201 Cr.P.C. lays down the procedure to be
followed by the Magistrate not competent to take
cognizance of the offence. If the complaint is made to
a Magistrate who is not competent to take cognizance of
the complaint he shall return the written complaint for
its presentation before a proper court and if the
complaint is not in writing, direct the complainant to
move before the proper court.
12. Section 202 contemplates “postponement of issue of
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process” on receipt of a complaint in the circumstances
mentioned therein. If the Magistrate is of the opinion
that there is no sufficient ground for proceeding,
under Section 203 Cr.P.C. he can dismiss the complaint
by briefly recording his reasons.
13. The commencement of proceedings before the
Magistrate under Chapter XVI starts with issue of
process under Section 204 Cr.P.C. If in the opinion of
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a Magistrate taking cognizance of the offence there is
sufficient ground for proceeding, and the case appears
to be a summonscase, he shall issue his summons for
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case, he may issue a warrant, or, if he thinks fit, a
summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if
he has no jurisdiction himself) some other Magistrate
having jurisdiction. No summons or warrant shall be
issued against the accused under subsection (1) until
a list of the prosecution witnesses has been filed. In
a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub
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section (1) shall be accompanied by a copy of such
complaint.
14. The aforesaid provisions make it clear that the
Magistrate is required to issue summons for attendance
of the accused only on examination of the complaint and
on satisfaction that there is sufficient ground for
taking cognizance of the offence and that it is
competent to take such cognizance of offence. Once the
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decision is taken and summon is issued, in the absence
of a power of review including inherent power to do so,
remedy lies before the High Court under Section 482 Cr.
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and not before the Magistrate.
15. Issue with regard to the power of Magistrate to
recall process of summons fell for consideration before
a threeJudge Bench of this Court in Adalat Prasad vs.
Therein
Rooplal Jindal and others, (2004) 7 SCC 338.
the following observation was made by this Court:
It is true that if a Magistrate takes
“15.
cognizance of an offence, issues process
without there being any allegation against
the accused or any material implicating the
accused or in contravention of provisions of
Sections 200 and 202, the order of the
Magistrate may be vitiated, but then the
relief an aggrieved accused can obtain at
that stage is not by invoking Section 203 of
the Code because the Criminal Procedure Code
does not contemplate a review of an order.
Hence in the absence of any review power or
inherent power with the subordinate criminal
courts, the remedy lies in invoking Section
482 of the Code.”
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16. Section 201 Cr.P.C., as noticed earlier, can be
applied immediately on receipt of a complaint, if the
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Magistrate is not competent to take cognizance of the
offence. Once the Magistrate taking cognizance of an
offence forms his opinion that there is sufficient
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204 Cr.P.C., there is no question of going back
following the procedure under Section 201 Cr.P.C. In
absence of any power of review or recall the order of
issuance of summons, the Magistrate cannot recall the
summon in exercise of power under Section 201 Cr.P.C.
The first question is thus answered in negative and in
favour of the appellant.
17. The question concerning the jurisdiction of
Magistrate to issue summons fell for consideration
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before this Court in M/s. Escorts Limited vs. Rama
Mukherjee(Criminal Appeal No.1457 of 2013), 2013 (11)
Scale 487. In the said case the Court noticed the
earlier decision in K. Bhaskaran vs. Shankaran Vaidhyam
In the light of the
Balan & Anr., (1999) 7 SCC 510.
language used in Section 138 of the Act, the Court
found five components in Section 138 of the Act,
namely,
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(1) drawing of the cheque;
(2) presentation of the cheque to
the bank;
(3) returning the cheque unpaid
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payment within 15 days of the
receipt of the notice.”
After saying so, this Court held that offence under
Section 138 of the Act can be completed only with the
concatenation of all the above components and for that
it is not necessary that all the above five acts should
have perpetrated at the same locality; it is possible
that each of those five acts were done at five
different localities, but a concatenation of all the
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above five is a sine qua non for the completion of the
offence under Section 138 of the Act. Having noticed
the aforesaid provisions, this court in Escorts Ltd.
held as follow:
“5. It is apparent, that the conclusion drawn
by the High Court, in the impugned order
dated 27.4.2012, is not in consonance with
the decision rendered by this Court in
Nishant Aggarwal vs. Kailash Kumar Sharma,
[2013(7) Scale 753] . Therein it has been
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| Act.<br>ion to | the jud |
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“3. The facts very briefly are that the
respondent delivered a cheque dated 23rd
December, 2010 for an amount of
`29,69,746/(Rupees Twenty Nine lakhs
sixty nine thousand seven hundred forty
six only) on Jammu and Kashmir Bank
Limited, Branch Imam Saheb, Shopian, to
the appellant towards some business
dealings and the appellant deposited the
same in UCO Bank, Sopore. When the cheque
amount was not encashed and collected in
the account of the appellant in UCO Bank
Sopore, the appellant filed a complaint
under Section 138 of the Negotiable
Instruments Act, 1881 before the Chief
Judicial Magistrate, Sopore. The
respondent sought dismissal of the
complaint on the ground that the Chief
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4. We have heard learned counsel for the
parties and we find that in K.Bhaskaran v.
Sankaran Vidyabalan and Another, (1999) 7
SCC 510, this Court had the occasion to
consider as to which Court would have the
jurisdiction to entertain the complaint
under Section 138 of the Negotiable
Instruments Act and in paras 14, 15 and 16
of the judgment in the aforesaid case held
as under:
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“14. 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
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payment within 15 days of the receipt of
the notice.
| hose fiv<br>localit<br>bove fiv | e acts c<br>ies. But<br>e is a |
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“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.”
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.”
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5. It will be clear from the aforesaid
paragraphs of the judgment in K.
Bhaskaran’s case (Supra) that five
different acts compose the offence under
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| Instrum<br>nant ca<br>ing juri | ents Ac<br>n choose<br>sdictio |
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6. Learned counsel for the respondent,
however, relied on the decision of this
Court in Harman Electronics Private Limited
and Another v. National Panasonic India
Private Limite,d, (2009) 1 SCC 720, to
submit that the Court at Shopian would have
the territorial jurisdiction. We have
perused the aforesaid decision of this
Court in Harman Electronics Private Limited
(Supra) and we find on a reading of
paragraphs 11 and 12 of the judgment in the
aforesaid case that in that case the issue
was as to whether sending of a notice from
Delhi itself would give rise to a cause of
action for taking cognizance of a case
under Section 138 of the Negotiable
Instruments Act when the parties had been
carrying on business at Chandigarh, the
Head Office of the respondentcomplainant
was at Delhi but it had a branch at
Chandigarh and all the transactions were
carried out only from Chandigarh. On these
facts, this Court held that Delhi from
where the notice under Section 138 of the
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Negotiable Instruments Act was issued by
the respondent would not have had
jurisdiction to entertain the complaint
under Section 138 of the Negotiable
Instruments Act. This question does not
arise in the facts of the present case.
(emphasis is ours).
7. In view of the above, having taken into
consideration the factual position noticed by
the High Court in paragraph 13 of the
impugned judgment, we are of the view, that
the High Court erred in concluding that the
courts at Delhi, did not have the
jurisdiction to try the petition filed by the
appellant under Section 138 of the Negotiable
Instruments Act. The impugned order dated
27.4.2012 passed by the High Court is
accordingly liable to be set aside. The same
is, therefore, hereby set aside.
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8. Despite the conclusion drawn by us
hereinabove, it would be relevant to mention,
that our instant determination is based on
the factual position expressed by the High
Court in paragraph 13 of the impugned order.
During the course of hearing, whilst it was
the case of the learned counsel for the
appellant (based on certain documents
available on the file of the present case) to
reiterate that the cheque in question, which
was the subject matter of the appellant’s
claim under Section 138 of the Negotiable
Instruments Act, was presented for encashment
at Delhi; it was the contention of the
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| us to<br>uted qu<br>instant | enterta<br>estion<br>decisio |
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18. In the case in hand it is admitted that the
business dealing was held at Mumbai; the products were
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supplied from Mumbai to New Delhi, cheques were handed
over at Mumbai and the cheques were dishounoured by the
bankers of respondents at New Delhi, and legal notice
was issued from Mumbai. Thus, at least one act out of
the five ingredients of Section 138 of the Act having
committed at Mumbai, the complaint preferred by the
complainant before the Magistrate at Mumbai was
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maintainable. The second question is thereby, answered
in affirmative and in favour of the appellant.
19. In view of the reasons recorded above, we have no
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passed by the High Court. We accordingly, set aside
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the order dated 6 December, 2012 passed by the High
Court, affirm the order passed by the Sessions Judge
and allow the appeals.
……………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
……………………………………………….J.
(V. GOPALA GOWDA)
JUDGMENT
NEW DELHI,
NOVEMBER 25, 2013.
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