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jurisdictiion of court u/s 138 ni act

Advocate & Solicitor

Sir,

Pls Suggest me the case law which support that the Court having Jurisdiction where Complaiant Reside is competant to try the Matter U/S 138 of Negotiable Instrument Act.

Regards,

Chirag Shah.

 
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ADVOCATE & DIRECTOR

pls find the attached one



Attached File : 51 51 18 18 harman electronics vs national panasonic judgement with head notes.pdf downloaded 503 times
 
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I could not find any direct citation on your query that the Court having Jurisdiction where Complaiant Reside is competant to try the Matter U/S 138 of Negotiable Instrument Act.

However, you may go through the following citation on the point of jurisdiction u/s. 138 which may help you to make your concept clear. 

1) 2007 (1) DCR 440 KERALA HIGH COURT, HARIHARA PUTHRA SHARMA VS. STATE OF KERALA & ANR.

2) AIR 1999 SUPREME COURT 3762, K. BHASKARAN VS. SANKARAN VAIDHYAN BALAN AND ANOTHER

3) AIR 2001 SUPREME COURT 1161, SHRI ISHAR ALLOYS STEELS LTD. VS. JAYASWALS NECO LTD.

4) 2007 CRI.L.J. 114 BOMBAY HIGH COURT, AHUJA NANDKISHORE DONGRE VS. STATE OF    MAHARASHTRA

Referring the above citations, It can not be said that  the Court is competant to try the Matter U/S 138 of Negotiable Instrument Act just becaus the Complaiant Resides there. 

In the case of K. BHASKARAN (supra),  para No. 14 Hon'ble the Supreme Court held that folowing are compopents of the said offence I1) 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 frawer 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.  Further held in para 15 that it is not necessary that all the above five acts should have been perpetrated at the same locality.  AND Held in para 16 that 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. 

 As the five acts mentioned in K. BHASKARAN (supra) may not be possible to be done at five different places refereing to the act No. 2 & 3, place can not be different (save and except at par cheque issued), being "the Bak" and "the drawee bank" are the same bank. Secondaly, the place of issuance of notice is not material but the place of service of notice is material to gather the jurisdiction, (as held in the case of M/s. HARMAN ELECTRONICS (P) LTD. Vs. M/s. NATIONAL PANASONIC INDIA LTD.) and therefore mere issurance of notice not sufficient but there must be valid communication (service) of notice in order to raise cause of action. Again going through the Acts No. 4 & 5, mentioned above in the case of K. BHASKARAN, we can not say that these acts can be done at two different places, being the act No. 4 is required to be completed on service of notice.

If the cheque in question is payable at Par and "The Bank" i.e. the Drawee Bank has branch where the complainant resides, then that Court has Jurisdiction to try the matter. 

I AM ALSO IN SEARCH OF CITATIONS ON THE POINT OF JURISDICTION Us. 138 of N. I. ACT, and require the best help of the friends....

 
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Consultant

 

Directions issued by Supreme Court in exercise of its power under Article 142 of the Constitution do not constitute a binding precedent

 

 

In State of U.P. Vs Neeraj Awasthi & Others {2005 (5) Suppl.SCR 906 , 2006 (1) SCC 667 , 2005 (10) SCALE 286 , 2006(1) JT19; Date of Judgment: 16/12/2005} hon’ble Supreme Court has observed as follows.

 

“In All Manipur Regular Posts Vacancies Substitute Teachers' Association v. State of Manipur [1991 Supp (2) SCC 643], this Court was confronted with various interim orders passed by the High Court from time to time in several writ petitions.  It was observed that if the direct recruitment takes place on one hand and substituted teachers are also directed to be regularized subsequently, it would create an enormous problem for the department to accommodate both the categories of persons and in the aforementioned situation, in exercise of its power under Article 142 of the Constitution of India, this Court with a view to avoid further litigation and also to avoid seemingly conflicting interim orders issued by the High Court gave certain directions. Such directions having evidently been issued by this Court in EXERCISE OF ITS POWER UNDER ARTICLE 142 of the Constitution of India DO NOT CONSTITUTE A BINDING PRECEDENT.  Even therein, the scope and ambit of this Court's jurisdiction under Article 142 vis-`-vis existence of the statue and statutory rules and the constitutional mandate contained in Articles 14 and 16 of the Constitution of India had not been taken into consideration.” (capitals supplied)

 

Further, in State of Kerala & Anr. Vs Mahesh Kumar & Ors. {(2009) 3 SCC 654; (2009) 3 JT 424; Decided on 23.02.2009} hon’ble Supreme Court has observed as follows (in para 20).

“20. Therefore, in the peculiar facts and circumstances of this case, we direct that the aforesaid remaining 8 persons be also given the same benefit as has been given to 40 teaching and 50 non-teaching staff and they shall be so accommodated in terms of their seniority. We, however, make it clear that THIS ORDER IS MADE IN THE PECULIAR FACTS and circumstances of this case and WOULD NOT, therefore, BE TREATED AS A PRECEDENT in any other matter.” (capitals supplied) (END)

 

COMMENTS: In view of aforesaid discussion, THE DIRECTIONS ISSUED by hon’ble Supreme Court in M/S.HARMAN ELECTRONICS (P) LTD. & ANR. Vs M/S. NATIONAL PANASONIC INDIA LTD. {2008(16) SCALE 317; Decided on 12.12.2008} DO NOT CONSTITUTE A BINDING PRECEDENT, because Supreme Court had EXERCISED ITS JURISDICTION UNDER ARTICLE 142 of the Constitution of India and directed as follows (in para 28):

 

“28.   For the views we have taken it must be held that Delhi High Court (typing error-should be DELHI COURT) has no jurisdiction to try the case. We, however, while EXERCISING OUR JURISDICTION UNDER ARTICLE 142 OF THE CONSTITUTION OF INDIA DIRECT that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, BE TRANSFERRED TO THE COURT OF THE DISTRICT AND SESSIONS JUDGE, CHANDIGARH who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present.  The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh.” (capitals supplied)(END)

 
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ADVOCATE & DIRECTOR

PLS DONNOT CONFUSE THE PUBLIC WITH ONE CITATION - THE AMBIT OF 142 IS VERY VERY EXHUSTIVE   IN NATURE::

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself
 
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Consultant

Firstly, there are two SC citations. Secondly, I am unable to follow, what you want to convey by reproducing text of Article 142 of Constitution of India and thirdly, by alleging that I am confusing the Public. Kindly clarify. Regards-N.K.SHARMA

 
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ADVOCATE & DIRECTOR

DEAR SIR,

YOU CAN SEARCH YOUR JOB IN SOME OTHER PORTAL LIKE NUKARI.COM ETC.,( i CAME TO THE CONCLUTION AFTER SEEING YOUR PROFILE IN LCI)  NOT IN LCI, IT IS THE FORUM FOR THE LEGAL /TOTAL SOLUTIONS ,THE POWER OF ART . 142 IS NOT AS YOU POSTED, MAY BE SOME CITATIONS AS PER THE FACTS OF THE CASE MAY LIMIT THE 142 AS GUIDELINE/SUGGESTION/TO RESOLVE THE PENDING ISSUE BEFORE THE COURT..

A NY HOW BETTER SOME LEARN FRIENDS  FROM LEGAL SIDE INTERPRETE THE 142 SCOPE OF SC.

 
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Consultant

 

 

DEAR SIR,


Extract from your comments: "YOU CAN SEARCH YOUR JOB IN SOME OTHER PORTAL LIKE NUKARI.COM ETC.,( i CAME TO THE CONCLUTION AFTER SEEING YOUR PROFILE IN LCI)  NOT IN LCI, IT IS THE FORUM FOR THE LEGAL /TOTAL SOLUTIONS"

 

I am very much surprised and hurt by your comments. As, I have not made an application to you to give me a job. Kindly note that, you may disagree with me, however, you are not entitled to make such derogatory remarks against me in a great public forum like Lawyersclubindia. I am unable to understand as to why are you unnecessary losing your temper. It is respectfully submitted that, it appears that, you, yourself, are unable to clarify the matter and only beating about the bush.

One recent SC citation is given below for kind information of all learned members.-Regards.N.K.SHARMA-

Recently, in Chowdhury Navin Hemabhai & Ors. Vs The State Of Gujarat & Ors. {2011 STPL (Web) 145 SC; (2011) 3 SCC 617; Decided on 18.02.2011} hon’ble Supreme Court has observed as follows (in para 14).

 

“14. In the facts of the present case, we have found that the appellants were not to be blamed for having secured admission in the MBBS course and the fault was entirely of the rule-making authority in making the 2008 Rules and the appellants have gone through the pains of appearing in the common entrance test and have been selected on the basis of their merit and admitted into the MBBS course in the college in accordance with the State Rules, 2008 and have pursued their studies for a year. Hence, EVEN THOUGH UNDER THE MCI REGULATIONS THE APPELLANTS WERE NOT ELIGIBLE FOR ADMISSION TO THE MBBS COURSE in the academic year 2008-2009, FOR THE PURPOSE OF DOING COMPLETE JUSTICE in the matter before us, WE DIRECT that the admissions of the appellants to the MBBS course in the college during the academic year 2008-2009 will not be disturbed. THIS DIRECTION SHALL NOT, however, BE TREATED AS A PRECEDENT. The appeal is disposed of accordingly with no order as to costs.” (capitals supplied) 

 
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Advocate/ nadeemqureshi1@gmail.com

Dear Chirag

According to Statuts the complainant filed the complaint wherein above

i) where the complainant Residing

ii)where the accused residing

iii) Where the transaction made

iv) Where the contract/ cheque signed/Cause of action arises

 

and Harman Electronics is the land mark Judgements

 
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advocate.dma@gmail.com

The fact is S.138 is quite painful to accused. It gives many jurisdiction options to complainant to file the case. Moreover subsequently it puts a reverse burden on accused under S.139. Although it looks quite favorable to complainant, but there is ample opportunity for the accused to come out. I am not advocating that a dishonest accused will come out, but out of around 40 lacs pending cases, i am confident more than 80% call for civil remedy not criminal. For suggestions / advise / feedback pl mail advocate.dma@gmail.com  

 
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