PRATAP SINGH YADAV Vs. ATAL BEHARI PANDEY

JUDGEMENT

(1.) . This criminal revision petition under Section 397 Cr.P.C. is directed against an order of an Additional Sessions Judge dated 7.5.2002 by which he has served notice under Section 251 Cr.P.C. for the trial of the petitioners for offence under Section 138 of Negotiable Instrument Act (the Act).

(2.) . The relevant facts for appreciating the controversy on merit are that the petitioners are father and son respectively. They are residents of Bangalore. Petitioner no.1. who was carrying on business there, had taken a friendly loan of Rs.1,50,000/- from the respondent. Respondent was also residing in Bangalore and was in employment there. Petitioner no.1 issued a cheque for re-payment of the loan amount. The cheque was dishonoured on presentation which led to the filing of a criminal complaint by the respondent at Bangalore for the prosecution of petitioner no.1 under section 138 of the Act. However, the matter was compromised between the parties. Petitioner no.1 paid a sum of Rs.45,000/- to the respondent and the petitioner no.1 also gave a cheque drawn by his son, the petitioner no.2 for Rs.1,05,000/- at Bangalore drawn on a Bangalore bank in favour of the respondent. In the meantime, the respondent shifted his residence to Delhi. He presented the cheque issued by petitioner no.2 for payment but the cheque was dishonoured for closure of the account at Bangalore and its intimation was received by the respondent at Delhi. In terms of Section 138 of the Act the respondent issued a demand notice to the petitioners. It was also not complied with and the amount claimed was not paid. Consequently, the petitioner filed the instant criminal complaint for the prosecution of both the petitioners for offence under Section 138 of Negotiable Instrument Act, which at present is pending in the court of Additional Sessions Judge at Delhi. At the time of serving of notice under Section 251 Cr.P.C. the trial court brushed aside the contention of the petitioners that no part of cause of action had arisen at Delhi, therefore, Delhi court has no territorial jurisdiction to entertain the complaint and take cognizance of the offence and further that petitioner no.1 is also not the drawer of the cheque, therefore, no offence can be said to have been committed by him under Section 138. The Additional Sessions Judge has served notice on both the petitioners and proceeded against them for trial for offence under Section 138 of the Act. The petitioners are aggrieved and have filed this petition.

(3.) . The contention of the counsel for the petitioners is two fold. Firstly the cheque was drawn by petitioner no.2 on hie own bank account so petitioner no.1 cannot be said to have committed any offence within the purview of Section 138 of the Act. Therefore, taking of cognizance of the offence under Section 138 of the Act and summoning of the petitioner no.1 to stand trial is illegal and it has resulted in miscarriage of justice. His second contention is that both the parties had resided at Bangalore where the loan transaction had taken place, the cheque was issued in favour of the respondent by petitioner no.2 drawn at his bank which is situated in Bangalore and that the cheque was payable at Bangalore, it was dishonoured at Bangalore, therefore, no part of cause of action could be said to have arisen in Delhi to give jurisdiction to a Delhi court to entertain and try the criminal complaint.