YASHOMALA ENGINEERING PVT LTD Vs. TATA SSL LTD

JUDGEMENT

(1.) THE Petitioner No.1 company is accused No.1 in Criminal Case No.1/s of 1997 instituted in the Court of Additional Chief Metropolitan Magistrate 26th Court, Borivali, Mumbai. THE said Complaint has been filed under Section 138 of the Negotiable Instruments Act as amended in 1988. It relates to a cheque worth Rs. 15,54,370/- drawn on Indian Bank, Kirkee Branch, Pune.

(2.) THE dispute between the parties qua the said Complaint relates to the jurisdiction of the Court of Mumbai. THE arguments advanced on behalf of the petitioner-company is that the entire sale transaction with the Complainant-Respondent No.1-company had taken place in Pune where the petitioner-company is situated and respondent no. 1-company has its sale office. Developing further the case on the footing of delivery having been effected at Pune, cheque having been issued at Pune by the petitioner-company and it having been deposited for realisation in the accounts of the complainant-company at Pune, it is very strenuously urged on behalf of the petitioner-company that only the Court at Pune will have jurisdiction.

(3.) IN order to understand the controversy, first it has to be seen what constituted the offence. It is not an offence under INdian Penal Code. It is offence created for the first time by way of amendment to the Negotiable INstruments Act, 1881. By an amendment in the year 1988, Chapter XII came to be added to the said Act. The section constituting the offence reads as under : " 138. Dishonour of cheque for insufficiency, etc. of funds in the account- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both; Provided that nothing contained in this section shall apply unless- (a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation - For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability. "