SHARAD JHUNJHUNWALA Vs. COMPUAGE INFOCOM LIMITED

JUDGEMENT

(1.) By this petition, the petitioner, who is original accused in a com-plaint filed by respondent No. 1 under sec-tion 138 read with section 141 of the Negoti-able Instruments Act, is challenging an or-der passed by the Sessions Court in Crimi-nal Revision Application No. 1113/2009 whereby the learned Sessions Judge was pleased to set aside the order dated 24th March, 2009 passed by the learned Magis-trate returning the complaint. Brief facts are as under :-

(2.) A complaint was filed by the respond-ent No. 1 against the petitioner in the 14th Court, Girgaum, Mumbai, Vide Case No. 453/ SS/2006 for the offence punishable under section 138 read with sections 141 and 142 of the Negotiable Instruments, Act. It is al-leged that accused Nos. 2 and 3 placed order to the complainant on 10th December, 2005 and pursuant to the said order, the complainant had sold, supplied and deliv-ered the goods which were received by the accused. Thereafter, the bills for the said supply of goods were sent to the accused who issued a cheque dated 22nd April, 2006 for an amount of Rs. 44,52,238/-. The said cheque was drawn on Punjab National Bank, Alipur Chetla, Kolkata, 700 027. The cheque was deposited by the complainant in his bank viz. HDFC Bank Limited, Fort Branch, Mumbai -400 023. However, the said cheque was returned unpaid with the remark "Ex-ceeds arrangements". The intimation of dis-honour of the cheque was given to the com-plainant on 27th April, 2006. Notice was is-sued, however, no reply was given though the Notice was received by the accused and therefore, the said complaint was filed in the 14th Court, Girgaum, Mumbai. Process was issued on the said complaint and the accused appeared before the said Court and filed an application under section 201(a) of the Cri.P.C. The said application was heard and decided by the learned Magistrate which was pleased to reject the said application by or-der dated 14th October, 2008. It is an admitted position that this order was not challenged by the accused petitioner herein.

(3.) Thereafter, a second application was filed by him in the same Court viz. 14th Court, Giragaum, Mumbai under section 201(a) of the Cri.P.C. The complainant raised an objection that the second application was not maintainable in view of the specific pro-vision of section 362 of the Cri.P.C. The learned Magistrate, however, held that in view of the subsequent judgment which was passed by the Apex Court in the case of [Harmon Electronics (P) Ltd. & Anr. Vs. Na-tional Panasonic (India) Ltd.),2009 2 Bom.C.R.(Cri.) 624, there was a change of circumstance and therefore, the learned Magistrate was of view that it was necessary to reconsider the said application. The learned Magistrate on merits came to the conclusion that the order was placed by the accused at the branch of-fice of the complainant at Kolkata and the cheque was issued at Kolkata and the goods were also delivered from the branch of the complainant situated at Kolkata. The learned Magistrate, therefore, held that in view of the judgment of the Apex Court, the complaint be returned to the complainant for present-ing it before the proper Court.