Section 138
Satya nand aggarwal
(Querist) 21 August 2014
This query is : Resolved
After the recent judgment in the case Dashrath Rupsingh Rathod
Versus State of Maharashtra on the point of jurisdiction, it has been concluded by the S.C at page no 83 that in all cases under Section 138 of the Negotiable Instruments Act. Prosecution can be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place.
My point is “ The cheque is payable a par and the drawer bank is located at Mumbai, Cheque issued at Delhi and presented for clearance at Delhi and Drawee bank at Delhi also presented for clearance in Delhi ,
It was bounced at Delhi being cheque is at Par and it can be presented anywhere in India in the same branch and it was never presented at Mumbai, Memo was also issued at Delhi.
“Whether the court at Delhi will have the jurisdiction or not”
Anirudh
(Expert) 21 August 2014
Please note, under the Core banking system, there is virtual branch throughout India, that is an internal arrangement within the Bank to offer facility to the customer. That does not automatically mean a cheque can be treated to have been dishonoured at any place in India.
The thing is legally only that branch which maintains the account of the drawer of the cheque can either honour or dishonour a cheque especially for 'insufficiency of fund'. The full particulars of the bank branch with postal address is given in each cheque.
Therefore, the complaint has necessarily to be lodged only at the place where the drawer's bank branch is situated.
Any other examination of the issue at this current stage will fall foul of the SC decision and anybody trying such tricks will do so at his own peril.
Satya nand aggarwal
(Querist) 21 August 2014
Mr Anirudh
Thanks a lot for this legal genuine information and quick response.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 21 August 2014
The point raised by AGRAWAL is valid but for this again some body has to go to SC level.
The principle of criminal jurisdiction was existing right from PRIVY COUNCIL days still even many SC benches had given contrary rulings.
even this citation mentions judgments of its own two bench rulings which were against three bench rulings.
So nothing is final in law , whenever stakes will be higher some body will challenge this citation also since concept of virtual banking is reality with telecom explosion.
ajay sethi
(Expert) 21 August 2014
you will have to file complaint in Mumbai as account of accused was with mumbai branch .
Shonee Kapoor
(Expert) 21 August 2014
Only Mumbai would have jurisdiction in this case.
Regards,
Shonee Kapoor
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If you don't fight for what you want, don't cry for what you LOST.
Biswanath Roy
(Expert) 21 August 2014
The legal offence has two parts namely,-
1. If the payment was made at Delhi by the Drawer of the cheque to payee assuring payment which was ultimately proved as false when it is bounced the jurisdiction of offence will be at Delhi.
2. If the cheque of the drawer was returned by the drawer's Bank situates at Mumbai on the ground of insufficient fund the jurisdiction of criminality cropped up and arising out therefrom falls within the territorial limit of the Bank at Mumbai.
Dr J C Vashista
(Expert) 22 August 2014
There are far reaching implications of the aforesaid judgment passed by Supreme court wherein there will be drastic reduction in filing of fresh complaint cases u/s 138 NI Act since it shall be maintainable at the Court of drawer of cheque, as Mumbai in instant case.
V R SHROFF
(Expert) 22 August 2014
Agree with the expert Anirudh ji.
Supreme Court came out with very good decision to avoid hardship to accused,and a fatal blow to financing co., as recovery will be difficult now onwards.
However, those cases pending Evidence stage will not be transferred. Applicable only to new filing, and cases where Claim Affidavit of compl not yet filed.
This too may change later on// Like cases transferred on establishments of Family Courts in Indian matro cities.
Satya nand aggarwal
(Querist) 24 August 2014
Supreme Court came with this decision on the point of jurisdiction in cheque bouncing cases, It will be halt to the business in the country as well as abroad, By this decision nobody is going to sell their products on credit basis as the 80 % business runs on credit basis in India. No business man would like to file a complaint 1000 miles away from their business place. There will be loss of employment, progress of the country so many other aspects related to this. Please let me know your views so it can be forwarded to the SC for its review.
prabhakar singh
(Expert) 24 August 2014
It may certainly be not a proper place to discuss or write any critic's essay on any decision of any court.
Satya nand aggarwal
(Querist) 24 August 2014
Dear
what does advocate defense means and who they are.
ajay sethi
(Expert) 24 August 2014
what advocate defence meant was some petitioner with high stakes is bound to challenge said decision passed by SC as it is contrary to its earlier decisions
T. Kalaiselvan, Advocate
(Expert) 25 August 2014
Learned expert Mr. Anirudh's opinion is agreed though expert Mr. Advocate Defense has opened a new issue. Thus, it is simple that even this decision will not hold as final.
