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SC (Service)     17 September 2009

NI Act Jurisdiction point - life after Herman Electronics Ju

I would like to put an open question with a request to revert with atleast some amount of specific data on the issue......

Actually I am in charge of the affairs of NI Act cases of an NBFC across India and we are facing some problems on the jurisdiction point (viz lower Courts in some locations are refusing to take cognizance on the ground that as the Banker of the accused does not fall under the territorial jurisdiction of that particular Court, the case is not trialable by the Court ---- otherwise our Banker, Notice issuance place, our Banker, our office falls under the territorial jurisdiction of the said Court) after the said Judgement has been pronounced. It is strictly of my personal opinion that the said Judgement is grossly misinterpreted. However, I am not trying to open up a forum to have opinions and views regarding the said judgement - all I would like to know as to in which locations/districts/states are you facing problems of this nature.

Actually, we are planning to take up this issue with the appropriate authorities for their necessary actions/guidelines/circulars - which will certainly uphold the essance of promulgation of NI Act.

 



Learning

 11 Replies

ghansham das (self employed engineer)     18 September 2009

General mind appln-

Its responsibilityof RBI,      who lacs  in implementation,               but issues permission to new  banking area,branches.etc.          

the later problems faced by public is not heared nor understood by law/judiary/ministry as hv to facee by us.

 

 

Adinath@Avinash Patil (advocate)     18 September 2009

In mopinion the judgment of suprime court in harman electroni is very good it helps for both complainant and accused.Hence there is no neccesity to take up this issue before apropriate authorithy.

sibasish pattanayak (lawyer)     08 October 2009

sir,

it shud be proper to settle the jurisdiction of N I ACT, ONLY WHERE THE PARTIES ARE

COME TO A CONTRACT/CONTACT/MAKE AGGREEMENT/ TRANSACTION WAS (WERE) MADE , for proper adjudication,ends of justice.

sibasish pattanayak.

             advocate,kolkata.

Pawan Joshi (Partner)     29 December 2009

Dear Mr. Adinath,

I think you have very clear understanding of the supreme court judgement in Harman Electronics case.

I am in a similar situation, where the supplier company is having its branch office at Bhubaneswar & head office at chennai.

Our business is located at Sambalpur, orissa. The Cheques were issued drawn on sambalpur bank branch & returned from sambalpur bank branch though deposited at chennai. No business transaction was ever there  with the head office, but only with the branch at Bhubaneswar.

But the company has issued notice from chennai served at sambalpur and now filed a complaint case at Chennai court u/s138(1).

Please tell what is our remedy for quashing the complaint filed by the company.

  1. Can we approach the same court, where the complaint is filed i.e. the metropolitan magistrate.
  2. Do need to approach the high court having jurisdiction over chennai court.
  3. Can we approach high court under whose jurisdiction, we are carrying our business & reside i.e. orissa high court.
  4. Is it necessary to appear in person before the metropolitan magistrate in person as per the summon or is there any alternative to represent ourselves

Regards & waiting urgently for your valued opinion in this matter.


(Guest)

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

MOBILE.09325226691, 09271971251

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com

REGARDING JURISDICTION KINDLY NOTE THAT.

1.IN CRIMINAL CASES JURISDICTION OF COURT WILL BE THE PLACE OF OFFENCE OR IN CASE OFFENCE IS COMITED AT DIFFERENT PLACE THEN ANY OF SUCH PLACES OR COURT HAS JURISDICTION.

2.BUT KINDLY NOTE THAT IN CASE ANY SPECIFIC AGREEMENT IS MADE BETWEEN THE PARTIES REGARDING THE JURISDICTION OF COURTS THEN THE PLACE MENTIONED IN AGREEMENT AND COURTS HAVE THE JURISDICTION.

3.ON THE POINT OF JURISDICTION SOME MATTERS ARE STILL PENDING AND THE CASE MENTIONED AND CITED IS THE ONE PLEASE NOTE.

4.N.I.ACT IS A CENTRAL ACT AND TILL ANY AMMENDMENT IS MADE THE SITUATION WILL CONTINUE PLEASE NOTE.

IN CASE YOU NEED ANY FURTHER HELP KINDLY SEND DETAILS.

WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS.

THANKING YOU

YOURS SINCERELY

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

KAMARAJ BHARATHY G (ADVOCATE- HIGH COURT)     02 February 2010

Dear Friends,

In the territorial jurisdiction of 138 NI Act, I have an intention to approch Hon'ble Supreme Court under RTI Act to get the clarification  in respect of the status of the pending cases which were filed without territorial jurisdiction ' ab initio'.  The cases were entertained by the JM/MM courts for the sole reason that the statutory notice demanding payment had been issued by the advocate of the complainant, who has his office within the territorial limits of that court, certainly it has to face the substantial question of law that whether such type of pending cases are entertained without jurisdiction ‘ab initio’ and what is the legal position in respect of those cases. 

Kindly discuss after perusal of my rti petition to concerned mm/jm court for ascertaining the facts.

 

From:
G. KAMARAJ BHARATHY,
 
To:
The public Information Officer,
Concerned JM/MM Court
 
PETITION UNDER RIGHT TO INFORMATION ACT, 2005
 
Grounds for Petition:
Even though, the Act does seek the reason for the information, for avoiding unnecessary delay, I have herein given the grounds for this petition to establish the intention of common cause and larger public interest.
Upon gone through the case law reported in AIR 1999 Supreme Court 3782, K. Bhaskaran Vs Sankaran Vaidyyan Balan and Another, we have come to the conclusion that the complainant in cheque bounce cases can choose any of the courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts mentioned below was done.
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.
 
In the above judgement, Hon’ble Supreme Court has stated as “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
                                              ..2..                                                        
at the place where either of them carries on business. Hence, difficulty to fix up any particular locality as the place of occurrence for the offence under section 138 of the Act”.
The above mentioned version itself clearly states that one of the places where the one of five acts occurred, where the drawer resides or at the place where the payee resides or at the place where either of them carries on business the complainant can choose for filing complaint under the Act. In this circumstance, merely we cannot take into account the advocate’s office, which is situated with in the jurisdiction of the trail court, who sent the notice to the accused u/s 138 of the act on behalf of the complainant.
In Smt. Shamshad Begum Vs B. Mohammed case, reported in 2009 Crl. L. J.1304 (Supreme Court), the Complainant had shifted his residence to the Mangalore before issuing statutory notice to the accused and therefore he had issued the notice from Mangalore. Hence, the Hon’ble Supreme Court confirmed the territorial jurisdiction of Mangalore JMF Court to entertain the captioned case by invoking the place of giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, as territorial jurisdiction.
Thereafter, in Harman Electronics Vs National Panasonic India ltd case, the Hon’ble Supreme Court has discussed the territorial jurisdiction of a court to tray an offence u/s 138 of the N.I. Act. Particularly, it has decided a question raised that whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Act.  
Even though, the complainant company was having its registered office at Delhi and its bank account also at Delhi alone, the Hon’ble Supreme Court concluded that depending upon the nature of a case, it is necessary to strike a balance between the right of the complainant and the right of an accused vis-à-vis the provisions of the code of criminal procedure. Accordingly it has decided that Delhi court has no Jurisdiction to try the case.
In these circumstances, if a criminal court entertains or already entertained a complaint u/s 142 of the Act for the sole reason that the
                                       …3…                                        statutory notice demanding payment had been issued by the advocate of the complainant, who has his office within the territorial limits of that court, certainly it has to face the substantial question of law that whether such type of pending cases are entertained without jurisdiction ‘ab initio’ and what is the legal position in respect of those cases. 
 In fact, according to section 138(b) of the Act, demand notice should be given in writing, but it need not be a lawyer notice. Hence,   the notice sending by an advocate is only on behalf of his client and the client address, which is indicated in the notice alone, is the place of giving notice in writing to the drawer of the cheque demanding payment of the cheque amount. 
At this juncture, meaning of the place of giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, is the complainant residential or business address only and never invoke the advocate’s office, because, the advocate did not send the notice in his individual capacity.  If the meaning of place of giving notice is taken as an advocate office also, then the complainant can file anywhere in India simply sending demand notice through a local advocate of such jurisdiction. 
But, the legislature had no such intention and the same has been confirmed by the Hon’ble Apex court in Bhaskaran case while interpreted to the proviso, it discussed as “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.”
In the above circumstances, the Hon’ble Kerala High Court in Harihara Puthra Sharma Vs State of Kerala and Anr II (2007)BC 576 case decided in the exact question that, criminal court does not get jurisdiction to entertain a complaint u/s 142 of the NI Act for the sole reason that the statutory notice demanding payment had been issued
                                           …4…                                                            by the advocate of the complainant who has his office within the territorial limits of the court. 
At this juncture, I have an intention to approach the Hon’ble Supreme Court or High Court through Public Interest Litigation or under RTI Act for getting clarification in a substantial question of law that whether a criminal court gets or had got jurisdiction to entertain a complaint under section 142 of the N.I. Act for the sole reason that the statutory notice demanding payment had been issued by the advocate of the complainant who has his office within the territorial limits of that court. Hence, I have to ascertain the fact before the Hon’ble higher courts that thousands of such type of cases are pending before many magistrate Courts including --------------Court. Hence, this petition is filed for seeking following information.
Therefore, I request you to provide the following required information sough for larger public interest.
 
TO BE ANSWERED INFORMATION:
 
1.        Whether the Hon’ble ---------------- Court entertains or entertained any complaint under section 142 of Negotiable Instrument Act for the sole reason that the statutory notice demanding payment had been issued by the advocate of the complainant who has his office within the territorial limits of this court?
 
2.        If, the 1st question answer is yes; how many such type of cases have been entertained and how many cases are pending therein as on today?
 
3.        Whether any reference has been sent to the Hon’ble High Court by the Hon’ble ------------- Court u/s 395(2) of Cr.P.C. in the above mentioned substantial question of law?
 
4.        If, I am declined to get answer or not satisfied from your answer, with whom I have to file appeal under RTI Act? Please provide the name & Address of the appellate authority.
Thanking you,
 
 
Yours faithfully,

M S Rao (Medical Officer)     02 September 2010

Originally posted by :SC
" I would like to put an open question with a request to revert with atleast some amount of specific data on the issue......
Actually I am in charge of the affairs of NI Act cases of an NBFC across India and we are facing some problems on the jurisdiction point (viz lower Courts in some locations are refusing to take cognizance on the ground that as the Banker of the accused does not fall under the territorial jurisdiction of that particular Court, the case is not trialable by the Court ---- otherwise our Banker, Notice issuance place, our Banker, our office falls under the territorial jurisdiction of the said Court) after the said Judgement has been pronounced. It is strictly of my personal opinion that the said Judgement is grossly misinterpreted. However, I am not trying to open up a forum to have opinions and views regarding the said judgement - all I would like to know as to in which locations/districts/states are you facing problems of this nature.
Actually, we are planning to take up this issue with the appropriate authorities for their necessary actions/guidelines/circulars - which will certainly uphold the essance of promulgation of NI Act.
 
"

Adesh Kumar Sharma (Senior Associate Lawyer)     06 September 2010

  

 

 

 

Hi Friends,

Well I wud say that after passing of judgment in "Harman Electronics (P) Ltd. and Anr. v. National Panasonic India Ltd. 2009 1 SCC 720", there have been some confusions regarding the territorial jurisdiction under section 138 of NI Act. However it all depends on the interpretation of a individual, because there is nothing wrong in this judgment, as it says that only sending of notice from a place can not confer jurisdiction upon a court to entertain the complaint under section 138 of NI Act. Before the Judgment of Harman Electronics, there was an authority i.e. K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another AIR 1999 SC 3762, wherein the Supreme Court fixed up five points, which determine the jurisdiction to file a complaint under section 138 of NI Act. The same is read as under:

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.

Now come up to the interpretation of Harman Electronic, in this judgment the Supreme Court just moved a step ahead i.e. giving of notice does not confer the jurisdiction (as said in K. Bhaskarnan), but delivery of the same.

Meaning thereby, if someone calming the jurisdiction only on the basis on sending notice from one place then, however the notice was received at another place by the addressee. Then the court having jurisdiction over the place where the notice was sending from, cannot entertain the complaint, but the court where the notice was delivered, can only entertain the complaint.

 

Other 4 points of K. Bhaskaran are still in authority except sending of notice. Therefore this judgment does not make any difference on the issue of jurisdiction under section 138 of NI Act.

 

Well one of our colleague has filed the SLP before Supreme Court i.e. Vinay Kumar Shailendra Vs. Delhi High Court Legal Services Committee & Anr., to decide that the K. Bhaskarnan still has not been overruled and the Harman Electronics does not hold a good law as it is contrary to K. Bhaskaran.  The Supreme Court has granted Status Quo and further the matter has been transferred to a three Judge Bench.   

 You can see the attachment, wherein you wud find the judgment of various High Courts on the issue of jurisdiciton under section 138 of NI Act, which say that Harman Electornics has not application as K. Bhaskaran holds a good law. 

Thanking you

  


Attached File : 58 58 jurisdiction under section 138 of ni act.doc downloaded: 610 times

sridhar pasumarthy (ADVOCATE)     01 August 2013

Dear Sharmaji,

Pls clarify  whether the SLP is still pending or disposed?

If disposed, what is the result? 

madhu mittal (director)     07 August 2013

Respected Sirs,

There is a latest decision of Supreme Court in this regard,:

Supreme Court of India Supreme Court of India

Nishant Aggarwal vs Kailash Kumar Sharma on 1 July, 2013 Author: P.Sathasivam REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL No. 808 OF 2013 (Arising out of S.L.P. (Crl.) No. 9434 of 2011) Nishant Aggarwal .... Appellant(s) Versus Kailash Kumar Sharma .... Respondent(s) 2

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     07 August 2013

Nishant agrawal case is also not final word for JURISDICTION in cheque cases.

 

In this case the plea of the complainant was that the place where cheque is submitted should have jurisdiction which the  APEX COURT has agreed.

 

This is a highly cotested case and more will come since the accused has also filed counter criminal cases of CHEATING AND BREACH OF TRUST at far away place at ASSAM while the party is from HARYANA.

 

There is still enough space left far any accused to contest on jurisdiction point and settle the case at thresh hold.


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