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V.G.Rao Advocate (Advocate)     01 December 2012

Jurisdiction in 138 of n.i. act case

Hi all,

I would like to know  in a 138 of N.I. Act case,  whether, a complaint can be filed at the jurisdiction from where advocate of complainant caused legal notice to the accused damnding payment of amount covered under the dishonered cheque? If yes provide me a sutiable case law, if no also provide me with a case law. its urgent.



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 6 Replies

H. S. Thukral (Lawyer)     01 December 2012

Kindly  go through Harman Electronics (P) Ltd. vs. M/s National Panasonic India Ltd to get an answer. 

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     01 December 2012

Many advocates follow the old BHASKARAN case  which is-

K. Bhaskaran vs Sankaran Vaidhyan Balan And ... on 29 September, 1999 and get away with it.

Most of the LD experts on this site give advice on this site based on above citation which gives no of places for jurisdiction.

However the Hermann case referred by the Ld freind above has drastically changed it which very very few people realise it.

If you read the fine print and analyse the HERMANN case completely it has practically reduced all options given in Bhaskaran case but it is for the ACCUSED to use it and not for the complainant to benefit.

V.G.Rao Advocate (Advocate)     01 December 2012

Thank u  verymuch Harbhajan Sir.

H. S. Thukral (Lawyer)     03 December 2012

Even  Bhaskaran case is no difference. Only thing is interpretation of Notice. Giving notice and receiving notice is discussed therein. A notice is complete when it is received by the accused. So the cause of action arises at the place where notice is received. 

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     04 December 2012

Following are the details of BHASKARAN CASE  and due to these observations it is videly misused all over India since finer details of HERMANN case are not put forword by most of defense advocates.-

 

15. 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 payment within 15 days of the receipt of the notice.


16. 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 Section 138 of the Code. In this context a
reference to Section 178(d) of the Code is useful. It is extracted below:


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.


17. 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.

R Trivedi (advocate.dma@gmail.com)     04 December 2012

Bhaskaran order is quite comprehensive and very disturbing for drawer, Supreme Court is quite into the notice of jurisdiction part in cheque bounce cases!! Even Delhi HC observed that people from far flunged places like south india are being made accused and harrassed on account of complainant filing case in Delhi etc. So the best recourse and safest place of jurisdiction should be followed, cheque invariably end up being a tool in the hands of complainant to arm twist the accused.

 

1. That is Complainant Bank Branch place.

2. Place of transaction of complainant.

3. Place of transaction of accused.

 

Even pt#1 above is tricky, for example take a large pan india operational company, such companies may have main clearing place in their head office situated far flunged from the place (branch office) from which transaction would have taken place, under such circumstances Pt#2 & Pt#3 above will help to avoid problems in future.

 

for example if I transact with a person from Delhi and place of that person (drawer) is Mumbai, then it is absurd to think of the place of my advocate who could be sending notice from Jaipur. Similarly if my bank account is in Delhi, but I have deposited the cheque in Chennai (it is nowadays possible), then even it is far more absurd to think of filing case from Chennai. All these points will be sorted out sooner or later due to enormous load on judiciary on account of cheque bounce cases. Complainant should do his homework properly as accused gets substantial advantage on technical grounds as well. The purpose of genuine complainant should be to get his money back in reasonable time, not after years of litigation. 


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