138 of N.I. Act
ESTHERPRIYA
(Querist) 05 May 2010
This query is : Resolved
Dear Members
One of my client obtained loan from bank and failed to pay the EMI. Now bank filed complaint in Calcutta. The client is in Chennai. We have issued advocate notice to the bank to file case in chennai but to harass the client filed it in calcutta. The 138 notice and cheque presented is in calcuatta. Can i be permitted under law to transfer the case from calcutta to Chennai? what is the procedure and grounds to get a favourable idea? and any judgment with respect to this case?
A V Vishal
(Expert) 05 May 2010
Power of Supreme Court to transfer cases and appeals:-(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.
R.R. KRISHNAA
(Expert) 05 May 2010
Had your client deposited the cheque in chennai and the same had been presented by the bank in calcutta resulting in dishonour then certainly you can rely upon the judgment of Harman Electronics (available in the files forum of this site).
A V Vishal
(Expert) 05 May 2010
Harman Electronics P. Ltd. vs National Panasonic India Ltd. on 13/2/2004
JUDGMENT
R.S. Sodhi, J.
1. This petition is directed against the order of District and Sessions Judge, Delhi dated 3rd February,2003 in CC No.1549 whereby the learned Judge has dismissed the application of the accused questioning the jurisdiction of the Court to entertain the complaint of the complainant.
2. It is contended by counsel for the petitioner that the cheque was issued in Chandigarh. The place of business of the complainant is in Chandigarh. The place of business of the petitioners is also at Chandigarh and cheque was presented in Chandigarh also delivered and returned at Chandigarh. However, notice under Section 138 was sent from New Delhi. Counsel submits that majority of the acts which are necessary to constitute the offence were done in Chandigarh, even notice sent from Delhi was received in Chandigarh, therefore, the Delhi Courts had not jurisdiction to try a complaint under Section 138 of the Negotiable Instruments.
3. Counsel for the respondent submits that in the Judgment of Supreme Court in K.Bhaskaran V. Sankaran Vaidhyan Balan and another, the Supreme Court has categorically, in para 16 thereof, stated as under
"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 an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act."
Having heard counsel for the parties and also having perused the Judgment under challenge, I hold that the judgment of the Supreme Court is applicable in all fores in this case.
CRL.M.C.1023/2003 is dismissed
A V Vishal
(Expert) 05 May 2010
The above judgement does not serve the purpose since Padma priya is representing the accused and not the complainant.
R.R. KRISHNAA
(Expert) 06 May 2010
Mr. Vishal
I am attaching herewith the detailed judgment delivered by Hon'ble Justice S.B.Sinha which clearly helps the case of the accused.
While you are referring to justice R.S. Sodhi judgment.
Adinath@Avinash Patil
(Expert) 05 May 2010
