jurisdiction u/s 138
munnish
(Querist) 27 October 2014
This query is : Resolved
sir pls tell me the jurisdiction for filing the complaint u/s 138 n.i act. if the cheque has payment mode payable at par at all the branchea.
Pratap K Pushpakaran
(Expert) 27 October 2014
*************very interesting query
The Supreme Court in CRIMINAL APPEAL NO. 2287 OF 2009 Dashrath Rupsingh Rathod Versus State of Maharashtra & Anr. dated 01.08.2010 while dealing with the aspect of determining territorial jurisdiction has also held that "Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. The general rule stipulated under Section 177 of Cr.P.C. applies to cases under
Section 138 of the Negotiable Instruments Act.
Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof.”
now with regard to the cheques payable at par literally means that one by issuing cheques payable at all branches, the drawer of the cheques had given an option to the banker of payee to get the cheques cleared from the nearest available branch of bank of the drawer. Accordingly the cheques were held to be dishonoured within the territorial jurisdiction of concerned Court where the cheque was dishonoured
in a recent judgement by the bombay hich court in
Ramanbhai Mathurbhai Patel vs. State of Maharashtra & Anr. dated 25/8/2014
High Court drawn a distinction or rather clarified that cheques payable at par if gets dishonored, the complaint filed against commission of such offence punishable under Section 138 of the NI Act can be filed before the territorial jurisdiction of such concerned Court within which the cheque was dishonored by one of the branches of the drawee’s bank.
Also ref: Dashrath vs. State of Maharashtra (Criminal Appeal No. 2287 of 2009
Anirudh
(Expert) 27 October 2014
The Maharashtra Decision dated 25.8.2014 will not be applicable even within Maharashtra also as the said decision of the Maharashtra HC has been stayed by Supreme Court on 16.9.2014 in SLP (Crl.) No.7251/2014.
The stay was granted on with a direction to list the matter after 4 weeks.
munnish
(Querist) 28 October 2014
thanxs sir.
munnish
(Querist) 28 October 2014
anirudh pls explain in detail
V R SHROFF
(Expert) 28 October 2014
anirudh pls explain in detail, as
Advocate Munnish hmay have confusion to lodge complaint in court u/s 138 n.i.
Adv Munnnish: Juri where cheque bounced. Simple.
Read address of bank branch on cheque, and file there..
Anirudh
(Expert) 28 October 2014
Dear Munnish,
As per the Supreme Court decision dated 1.8.2014, complaint u/s. 138 N.I. Act has to be filed before the Magistrate under whose jurisdiction the drawer bank is located.
As of now, the SC Decision does not distinguish whether the cheque is payable at par in any other branch. The only thing to be looked at is where is the drawer bank located. (In fact the Bombay HC gave a decision to cover the situation of a cheque payable at par. This decision of Bombay HC has been stayed by Supreme Court.)
munnish
(Querist) 28 October 2014
thanxs to all
Anirudh
(Expert) 28 October 2014
Dear Mr. Shroff,
How do you reconcile this sort of reply in LCI. I mean the answer given by Mr. Rajendra K. Goyal terming the query as "Academic query", in spite of noticing that some answers have already been given and even you had asked me to explain to Munnish.
Guest
(Expert) 28 October 2014
Academic Query Please
Anirudh
(Expert) 28 October 2014
Dear Mr. Munnish,
You got your answer, isn't it? That is what matters - whether your query is Academic or whatever.
T. Kalaiselvan, Advocate
(Expert) 28 October 2014
agreed with the experts' opinion that the case can be filed only in the drawer's jurisdiction.
malipeddi jaggarao
(Expert) 29 October 2014
You are an advocate. Did you not read the SC judgement on jurisdction which is very important as far as sec.138 cases are concerned?
