KIRTI DAL UDYOG NAGPUR Vs. BHANWARLAL RAMCHANDRA CHANDAK

JUDGEMENT

(1.) THIS criminal application under Section 482 of the Criminal procedure Code is for quashing the complaint and proceedings in Complaint Case No. 4299 of 1994, pending on the file of Chief Judicial Magistrate, Wardha. The complainant, who is the non-applicant No. 1 here, as well as the applicant are businessmen. The applicant had purchased pulses from the complainant and had issued post-dated cheques dated 18. 5. 1995, 2. 6. 1994 and 5. 6. 1994 in favour of the complainant-non-applicant no. 1 which were drawn on Punjab National Bank, Lakadganj, Nagpur. When the cheques were sent for collection, the bank dishonoured the same on 29. 6. 1994. Notice of dishonour was received from the bankby the non-applicant No. 1 on 1. 7. 1994 at nagpur. on receipt of the same, the non-applicant No. 1 issued the notice of dishonour to the applicant on 15. 7. 1994. The applicant refused to accept the said notice on 22. 7. 1994. The allegation in the complaint is that after the expiry of the period fixed under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the Act') the complaint was filed before the Chief Judicial Magistrate, Wardha, for having committed the offence punishable under Section 138 of the Act.

(2.) NOW the case of the learned Counsel for the applicant-Shri S. S. Joshi, is that no part of the cause of action has arisen within the jurisdiction of the Court of Chief Judicial magistrate, Wardha and, therefore, the complaint as well as the proceedings thereunder are liable to be quashed.

(3.) THE non-applicant No. 1 has filed a reply denying the allegations made by the applicant. The main point urged by the learned Counsel Shri S. S. Joshi on behalf of the applicant is that the cheque was drawn at Nagpur, it was drawn on Punjab National bank Lakadganj, Nagpur, it was deposited for collection by the non-applicant no. 1, Nagpur in his bank namely, Bank of Maharashtra, Nagpur, the dishonour was at nagpur and the intimation of dishonour was at Nagpur. In such circumstances, according to Mr. Joshi, the whole part of the successive causes of action arose within Nagpur. On the other hand, learned Counsel for the non-applicant No. l, Shri V. M. Deshpande, on behalf of Shri V. C. Daga, contended that the offence under Section 138 of the Act would be complete only on the failure of the drawer to pay the amount on receipt of the notice of dishonour within the time stipulated under Section 138 of the Act. Therefore, if, in a given circumstance, the payment as per the notice of dishonour had to be made at the place where the complainant is carrying on business and the drawer fails to make the payment, then cause of action would also rise on such failure to make the payment at that place. Reliance was placed by the learned Counsel for the complainant on the decision of this Court in Rakesh Nemkumar Porwal v. Narayan Dhondu joglekar and another, 1993 Mah LJ 630 : [vol. 1 DCTC 342]. In that decision, the decision of the Kerala High Court in P. K. Muraleedharvan v. C. K. Pareed and another, 1992, Cri LJ 1965 : [vol. 1 DCTC 254], is relied on by the learned Judges of this Court who have observed that : "it would be perfectly valid and reasonable to hold, therefore, that the aggrieved party, viz. the complainant is fully justified in approaching the local Court having jurisdiction over the area where the payment was to be made to him in the final instance. Having defaulted in the first instance, the law casts a special obligation on the drawer of the cheque to make amends by tendering the payment to the payee and the correct approach in such a situation would be to construe the offence having complete at the place where the payment ought to have been tendered to the drawee but was wrongfully not done. . . . . . . . . " therefore, it is clear that the offence is complete only on failure to tender the amount in response to the notice of dishonour within the stipulated time and the Court within whose jurisdiction the said tender had to be made will also get the jurisdiction to try the case.