TRIPTI VYAS Vs. AHLERS INDIA PVT. LTD.

JUDGEMENT

(1.) THE instant petition under Section 482 Cr.P.C. has been filed by the accused-petitioner and seeks quashing of the criminal proceedings pending in the court of learned Metropolitan Magistrate, Mumbai in Criminal Case No. 6740/55/05 "Ahlers India Pvt. Ltd. v. Tripti Vyas" for the offence under Section 138 of the Negotiable Instruments Act, 1881 (here-in-after referred to in short as 'the Act of 1881'). Briefly stated, the relevant facts giving rise to this petition and necessary for its disposal are that M/s. Vivek Harsh International is a proprietorship firm. The petitioner is its proprietor. The firm is engaged in the export of different sized cobbles/stones worldwide for the last over decade for which it hires services of different transporters/shippers to supply the cargo/material etc. to number of national as well as international destinations regularly. The accused-petitioner entered into a written agreement with M/s. Jos Marris, Belgium on 11.03.2005 for export of certain kinds of material herein it was stipulated that the entire cargo would be supplied through the non-petitioner No. 1 for which empty containers would be made available/provided at Jaipur. It was in fact a Letter of Credit. Later on, specific agreement was entered into between the parties for supply of 58 empty containers at ICD-Kanakpura, Jaipur on March 28, 2005 for which security cheques worth Rs. 16 lacs were given, but only 10 containers were provided on 02.05.2005 at ICD-Kanakpura, Jaipur while other 10 empty containers were provided at Mindra Port, Gujarat. So, the petitioner instructed its banker to stop payment of the security cheques which were presented by non-petitioner No. 1. On dishonour of the cheques, a complaint was filed in the aforesaid court under Section 138 of the Act of 1881. The case of the accused-petitioner is that payment of Rs. 6 lacs was made to the non-petitioner No. 1 towards the charges of 20 containers which were supplied vide an on-line money transfer via Standard Chartered Bank which fact was concealed in the complaint. The court took cognizance against the petitioner and issued process for securing his presence in the said court, even though the said court had no jurisdiction to entertain the complaint as no part of the cause of action had arisen in its local jurisdiction in as much the agreement was entered into between the parties at Jaipur, the same was to be carried out at Jaipur and the cheques were also to be encashed at Jaipur. Hence, the petitioner has invoked the inherent jurisdiction on this court to quash criminal proceedings initiated against him pursuant to the aforesaid complaint and pending in the court of learned Metropolitan Magistrate, Mumbai.

(2.) AFTER notice, the non-petitioner No. 1 has inter alia prayed for vacation of the interim stay order passed by this court.

(3.) LEARNED counsel has further contended that only such High Court would have jurisdiction to entertain an application under Section 227 of the Constitution of India within whose jurisdiction the order of the Subordinate Court has been passed as held in Mosaraf Hossain Khan v. Bhagheerath Engineering Ltd. and Ors., 2006(2) RCR(Criminal) 137 : 2006(1) Apex Criminal 504 : 2006(3) SCC 658. He has also submitted that the complaint was filed in the aforesaid court at Mumbai because banker's advice was received by non-petitioner No. 1 at its Mumbai office. Therefore, part of cause of action arose within the jurisdiction of that court So, this High Court has no jurisdiction over the Court situate in the State of Maharashtra. Otherwise also, it is well settled that the challenge to jurisdiction of a court will be raised before and decided by the concerned court.