TaxTMI 
TaxTMI 
TaxTMI 
2008 (12) TMI 677
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....he cheque was presented at Chandigarh. However, it is in dispute as to whether the said cheque was sent for collection to Delhi. The cheque was dishonoured also at Chandigarh. However, the complainant - respondent issued a notice upon the appellant asking him to pay the amount from New Delhi. Admittedly, the said notice was served upon the respondent at Chandigarh. On failure on the part of the appellant to pay the amount within a period of 15 days from the date of communication of the said letter, a complaint petition was filed at Delhi. In the complaint petition, it was stated: "10. That the complainant presented aforesaid cheque for encashment through its banker Citi Bank NA. The Punjab & Sind Bank, the banker of the accused returned the said cheque unpaid with an endorsement "Payment stopped by drawer" vide their memo dated 30.12.2000. The aforesaid memo dated 30.12.2000 was received by the complainant on 3.1.2001. 11. Upon dishonour of the above mentioned cheque, the complainant sent notice dt. 11.1.2001 in terms of section 138 of Negotiable Instruments Act to the accused persons demanding payment of aforesaid cheque amount at Delhi. The accused persons were served with sa....
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....rtain this complaint, as admittedly the notice was sent by the complainant to the accused persons from Delhi, and the complainant is having its registered office at Delhi, and that they are carrying out the business at Delhi. Admittedly, it is also evident from the record that accused allegedly failed to make the payment at Delhi, as the demand was made from Delhi and the payment was to be made to the complainant at Delhi." 4. By reason of the impugned judgment, Criminal Miscellaneous Petition filed by the appellant has been dismissed. 5. Mr. Ashok Grover, learned Senior Counsel appearing on behalf of the appellant would submit that as the entire cause of action arose within the jurisdiction of the courts at Chandigarh, the learned Additional Sessions Judge, New Delhi had no jurisdiction to take cognizance of the offence. 6. Mr. Sakesh Kumar, learned counsel appearing on behalf of the respondent, on the other hand, would contend: i. The cheque although was deposited at Chandigarh, the same having been sent by Citi Bank NA for collection at Delhi, the amount became payable at Delhi. ii. Giving of a notice being a condition precedent for filing a complaint petition under Secti....
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....he Act can be completed only with the concatenation of a number of acts, namely, (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. It was opined that if five different acts were done in five different localities, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act and the complainant would be at liberty to file a complaint petition at any of those places. As regards the requirements of giving a notice as also receipt thereof by the accused, it was stated: "18. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to p....
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....isk for proving that he in fact received the notice. It is open to the despatcher to adopt either of the options. If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. Such a course appears to have been adopted by the appellant-company in this case and the complaint filed, admittedly, within limitation from the date of the notice of service conceded to have been served upon the respondents." (Underlying is mine) It was furthermore held: "The payee or holder of the cheque may, therefore, without taking peremptory action in exercise of his right under clause (b) of Section 138 of the Act, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once a notice under clause (b) of Section 138 of the Act is 'received' by the drawer of the cheque, the payee or the holder of the cheque forfeits his right to again present the cheque as cause of action has accrued when there was failure to pay the amount within the prescribed period and the period of limitation starts to run which cannot be stopped on any account. This Court emphasised that 'n....
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....igarh. Indisputably, the dishonour of the cheque also took place at Chandigarh. The only question, therefore, which arises for consideration is that as to whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instruments Act. 14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of acti....
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.... an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid." For constitution of an offence under Section 138 of the Act, the notice must be received by the accused. It may be deemed to have been received in certain situations. The word 'communicate' inter alia means 'to make known, inform, convey, etc.' 18. This Court in Sultan Sadik vs. Sanjay Raj Subba and Ors [(2004) 2 SCC 377], held: "33. The decision of this Court in Khemi Ram [(1969) 3 SCC 28] relied upon by Mr. Bachawat is not apposite as therein an order of suspension was in question. This Court in the said decision itself referred to its decision in State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313], which stated that communication of an order dismissing an employee from service is imperative. If communication of an order for terminating the jural relationship is imperative, a fortiori it would also be imperative at the threshold." 19. Section 177 of the Code of Criminal Procedure determines the jurisdiction of a court trying the matter. The court ordi....
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....rt held: "The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases." 23. Presumption raised in support of service of notice would depend upon the facts and circumstances of each case. Its application is on the question of law or the fact obtaining. Presumption has to be raised not on the hypothesis or surmises but if the foundational facts are laid down therefor. Only because presumption of service of notice is possible to be raised at the trial, the same by itself may not be a ground to hold that the distinction between giving of notice and service of notice ceases to exist. 24. Ind....