Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Sections 177, 178, 179, 188, 189, 482 - Territorial Jurisdiction - Accused borrowed an amount of UAE currency AED25000/- equivalent to Indian Rs.3,12,000/- from the complainant while both were in Gulf-Dibba - In discharge of the debt, accused issued a cheque drawn on Emirates NBD Branch FM - Accused assured that she will repay the amount as and when she returns to Kerala - But accused failed to pay the amount and cheque was dishonoured for the reason referred to drawer - Complainant issued a registered notice from Paravoor demanding the amount covered by the cheque - After receipt of the notice, there was no repayment - Hence a case was filed through the power of attorney - Accused is residing at Kozhikode and she approached High Court to quash the proceedings by invoking the jurisdiction under Section 482 Cr.P.C. - Dismissing the petition the Court held that when a cheque is dishonoured, that itself will not complete the offence mentioned under Section 138 of N.I. Act - It attains completion only when the drawer of the cheque fails to pay the cheque amount within 15 days of the receipt of notice mentioned under Section 138(c) of N.I.Act - Therefore, only after non payment of the cheque amount as per the notice, cause of action arises. Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Sections 177 - Territorial Jurisdiction - Every offence shall ordinarily be inquired into and tried in a court within whose jurisdiction it was committed - Cheque dishonoured at Emirates - The locality where the bank (which dishonoured the cheque) is situated cannot be regarded as the sole criteria to determine the place of offence - It must be remembered that offence under S.138 would not be completed with the dishonour of the cheque - It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause ) of the proviso to S.138 of the Act - It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque - A place, for that purpose, would depend upon a variety of factors - It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business - Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under S.138 of the Act. Code of Criminal Procedure, 1973 - Sections 177, 178 - Territorial Jurisdiction - Even otherwise the rule that every offence shall be tried by a court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle - S.177 itself has been framed by the legislature thoughtfully by using the precautionary word ordinarily to indicate that the rule is not invariable in all cases - S.178 of the Code suggests that if there is uncertainty as to where, among different localities, the offence would have been committed the trial can be had in a court having jurisdiction over any of those localities - The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the court in either of the localities can exercise jurisdiction to try the case. Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Sections 179 - Territorial Jurisdiction - Offence triable where act is done or consequence ensues - S. 179 in the Code should have been borne in mind when the question regarding territorial jurisdiction of the courts to try the offence was sought to be determined. Negotiable Instrument Act, 1881 - Section 138 - Five components of the offence - The offence under S.138 of the Act can be completed only with the concetenation 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 S.138 of the Code. Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 178(d) - 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 - Complainant has the liberty to chose any one of the court having jurisdiction over any of the local areas within the territorial limits of which any one of the five acts was done. Held: The jurisdiction of the criminal courts into enquiries and trials are mentioned under Chapter 13 of the Code from Section 177 to 189 of which offences committed outside India shall be dealt with under Section 188 of Cr.P.C. It is admitted case of the petitioner that initial transaction was made at U.A.E and after the cheque was dishonoured, second respondent came to India and issued notice to the petitioner. The legal principle laid down in Bhaskarans case show that five different acts were done in five different localities. Any one of the court exercising the jurisdiction is one of the five localities which could become the place of trial for the offence under Section 138 of N.I.Act
Posted on: Thu, 08 May 2014 08:15:07 +0000
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