MAHESH JAIN Vs. OSWAL CHEMICALS ANDFERTILIZERS LTD

JUDGEMENT

(1.) The order dated 24th September, 2001 passed by learned J. M. F. C (P), Kujangin I. C. C. No. 1/2001 is assailed invoking inherent jurisdiction under Section 482 of the Criminal Procedure Code. Admittedly, the opp. party filed the aforesaid complaint case, inter alia, alleging commission of offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'N. I. Act') by the petitioners, who are arrayed as accused in the said complaint case. Before the Magistrate the accused petitioners filed a petition with the averment that the complaint case was not maintainable at Jagatsingpur as no cause of action had arisen within the jurisdiction of the said Court and as such prayed that the same should be dismissed in limine. According to the petitioners a complaint case can be instituted for commission of offence under Section 138 of the N. I. Act where the cheque in dispute was issued and/or at the place where the cheque was presented for collection or at the place where the cheque was not honoured or at the place where the creditor's /debtor's office or residence is located or at the place from which legal notice was issued.

(2.) Relying upon the averments made in the complaint petition, learned counsel for the accused-petitioners submits that in the case at hand the cheque in question was drawn on ABN Amro Bank, Mumbai. The cheque was presented for collection at S. B. I., Industrial Finance Branch, Barakhamba Road, New Delhi. The office and residence of the creditors are situated at Kasturba Gandhi Marg, New Delhi and Sahajahanpur, Uttar Pradesh respectively. The place of debtors office and residence are both situated at V. P. Road (Bombay), Mumbai. The Lawyer's notice was sent to the accused-petitioners on 17th November, 2000 from Delhi. Hence according to the accused petitioners no cause of action arose at Paradeep and institution of the complaint case against the accused-petitioners in the court of J. M. F. C. (P). Kujang is not tenable in law in view of the fact that the alleged cause of action arose beyond the territorial jurisdiction of the said Court. According to the accused-petitioners, they had never visited Paradeep on 14th September, 2000 nor did admit their liability before the complainant for having supplied sub-standard quality of material, nor did issue any cheque at Paradeep or made any assurance over telephone to the opposite party. Thus, filing of the complaint petition at Kujang has been made with an avowed oblique motive of harassing the accused-petitioners.

(3.) Learned counsel for the opposite party complainant at the other hand strongly repudiated all the aforesaid submissions advanced and submitted that the cheque having been presented at Paradeep, the cause of action arose at that place. Even otherwise according to learned counsel for the opposite party the question of jurisdiction being a mixed question of fact and law, the same could not be decided before trial at this stage and the Court below therefore rightly rejected the prayer of the accused- petitioners.