Section 138 of ni act
V.PAVAN KUMAR
(Querist) 05 December 2012
This query is : Resolved
Respected Sir,
With reference to the above subject, it is to given understand that there is a case law from Supreme Court of India that criminal case under Sec. 138 of NI Act, can be filed only in the Court where accused / Accused bank is located. It it true? Are there any options to file case in any other place of complainant/ accused.
If case is to be filed at the location of Accused, I feel that it would be very difficult for the complainant to file case or serve the summons.
I shall be grateful if you could provide your views.
Regards,
V.PAVAN KUMAR
ajay sethi
(Expert) 05 December 2012
what are facts of your case. state details .
V.PAVAN KUMAR
(Querist) 05 December 2012
R/Sir,
We are producers and distributors of hybrid seeds in the market. We normally give 30-60 days credit period for our supplies. If cheque issued by any of the distributor against his outstanding, got dishoured on the reason of "Insufficient funds" or "Account closed", we need to file complaint under Sec. 138 of NI Act. Under these circumstances, where the complaint can be filed the case against the accused. Hope, it is clear in my query.
Looking forward to your valuable response.
Regards,
PAVAN
ajay sethi
(Expert) 05 December 2012
you have not mentioned detailsas to where is your regd office . where agreement was entered into , where cheque issued , where prsented .
Raj Kumar Makkad
(Expert) 05 December 2012
The place wherein the agreement was signed is also the proper place to file the complaint. I think such agreement might have been executed at your place or show at your place and file the complaint. The citation mentioned by you duly permits to do so.
V.PAVAN KUMAR
(Querist) 06 December 2012
Respected Sir,
Till now, we used to file cheque dishonour cases in Hyderabad only because our Admn. Office and Banker is located in Hyderabad and cheque was presented in Hyderabad, even though the accused is located at a different place/ State. I just wanted to know whether there is any change in jurisdiction in filing complaint under Sec.138 of NI Act.
I heard that from now onwards (as per Supreme Court Judgement) the complaint under sec. 138 of NI Act should be filed only at the location where accused/ his bank is located. Is it correct?
Kindly clarify.
Regards,
PAVAN
ajay sethi
(Expert) 06 December 2012
yes it has to be filed from location wherein accused issued cheque . since the cheque has ben presented for payment at accused bankers branch complaint has to be fild in said jursidction . however if you have agreement which provides that in such cases courts in hyderbaad has jursidiction you can file complaint in hyderbad .
Raj Kumar Makkad
(Expert) 06 December 2012
The issue of territorial jurisdiction under Section 138 NI Act was considered by the Hon‟ble Supreme Court in K. Bhaskaran Vs. Shankaran Vaidhyam Balan & Anr (1999) 7 SCC 510. The Hon‟ble Supreme Court observed that the following 5 acts are essential to constitute an offence under Section 138 of the NI Act and if these 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 offence under Section 138 of the Act:-
(i) Drawing of the cheque
(ii) Presentation of cheque to the bank
(iii) Return of the cheque unpaid by the drawee bank (iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and
(iv) Failure of the drawer to make payment within 15 days of the receipt of the notice.
Crl.M.C. 1715/2011 Page 3 of 12
7. The Hon‟ble Supreme Court was of the view that the complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act. The relevant paras of the report reads as under:-
"15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:
Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
16. Thus it is clear, if the 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. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act."
8. In Shri Ishar Alloys Steels Ltd. v. Jayaswal NECO Ltd., 2001 (3) SCC 609, Hon‟ble Supreme Court observed held:-
"10. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued.
V R SHROFF
(Expert) 06 December 2012
It is Only 138 ni , that a criminal case can be lodge at different courts. Maximum number of Jurisdictions allowed under n.i.,act, as rightly explained in details by Shri Raj Makkad.
So many financial money lending company took disadvantage to harrass the debtor, to recover the money, and SC directed that one cannot open bank a/c or deposit the cheque at any of the far places, as it is inconvenient for bank/ customer to travel 1000 km, get local surety and harassed.
So now it is restricted to local jurisdiction, where cause of action aroused. , or where accused reside, or where the cheque was bounced.
In your case, if ur regd office and ur banker have the same place, u can file case in your local area. Notice must be served from ur local area.
