SANTHOSH KUMAR M S Vs. MOHANAN K G

JUDGEMENT

(1.) WHICH court has territorial jurisdiction to try the accused for an offence under Section 138 of the Negotiable Instruments Act? Can the complainant present the cheque for collection at any bank anywhere in India and on that ground alone compel the drawer to contest the indictment at such place ? Which is the bank referred to as venue No. 2 in Bhaskaran v. Balan, 1999 (3) K. L. T. 440 (S. C.),? is it the drawee bank only or any bank anywhere in India where the cheque is presented by the payee or the holder in due course for collection? How is the expression "the bank" appearing in bhaskaran's case (supra) to be understood and interpreted in the light of the decision in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. , 2001 (2) K. L. T. 148 (S. C.),? these interestingquestions have been raised for consideration in this case by the learned counsel for the petitioner though in the petition, transfer has been claimed only to cater to the interests of the convenience of the parties.

(2.) AN oppressive practice appears to have come to stay following the decision in Bhaskaran's case (supra ). These questions are raised cognisant of the inconvenience, prejudice and injustice which drawers of cheques are compelled to face and endure as a result of such a practice. The practice is this. Cheques are presented for collection at distant places, at times in other States. Some complainants like companies having their principal places of business in far away places conveniently present the cheques for collection in the accounts maintained by the head office in such distant territories and drag the drawers to such places to face prosecutions under Section 138 of the Negotiable Instruments Act. In short, the jurisdiction is manipulated conveniently by complainants by presenting cheques for collection in their accounts (either existing already or at times opened only for such specific purpose of vexation) at distant places. The presentation for collection is at such places where the parties at the time of issue, even in their wildest imagination, would not have contemplated the presentation of such cheque. When dishonour takes place at the drawer banks, complaints are filed at such distant territories with the only explanation that the cheque was presented for collection there and that is the venue permitted as venue No. 2 by Bhaskaran's case (supra ). Is this just ? is this permissible? Can this be tolerated? Did Bhaskaran's case (supra)contemplate this situation or give its stamp of approval to such a course? The learned counsel for the petitioner contends that virtually the right of an accused to reasonable opportunity to defend himself is effectively frustrated and drawers of cheques are at the mercy of the powerful complainants who have the resources, infrastructure and the wherewithal to institute prosecutions at such distant places. Out of fear of the inconvenience, on being obliged to face trial at such distant places, drawers surrender to the inevitable cursing their fate. The counsel prays that it may be clarified that law does not permit this course at all.

(3.) IT is unnecessary to search for the law on the point as according to me bhaskaran's case holds the field in supersession of the decisions rendered by the high Courts prior to that pronouncement in 1999. In Bhaskaran's case the question received detailed consideration. I am hence not adverting in detail to the decisions of various High Courts including this Court prior to 1999 when different and conflicting views appear to have been taken by the High Courts on the question of territorial jurisdiction for the purpose of Section 138 of the Negotiable instruments Act.