Juriidiction for offence u/s 138
SAPNA KANNAIDAS
(Querist) 18 June 2011
This query is : Resolved
Dear Members,
Would like to know under the jurisdiction of which court the offence committed u/s 138 is governed?
I have gone thru the famous case of K. Bhaskaran v. Sankaran Vaidhyan Balan, which talks about the five different locations where a suit can be filed (where the offence was committed):
1. Where the cheque was drawn.
2. Where the cheque was presented for encashment.
3. Where the cheque was returned unpaid by drawee bank.
4. Where notice in writing was given to drawer of cheque demanding payment.
5. Where drawer of cheque failed to make payment within 15 days of receipt of notice.
How do such a wide interpretation bring the parties to a mutual conclusion to the place of jurisdiction. Each party will obviously select a place which is convenient and near to him.
Our company is base in Mumbai and gets cheques from parties all over the country. Can we mention a clause in the invoice itself stating that all disputes will be subject to Mumbai jurisdiction only. Will mentioning such a point bind the other party?
Kindly advise as there is a lot of confusion.
Regards,
Sapna K
prabhakar singh
(Expert) 18 June 2011
YES! BECAUSE EACH ONE CONSTITUTE A PART OF CAUSE OF ACTION.
THE ANSWER TO YOUE QUESTION:
"Can we mention a clause in the invoice itself stating that all disputes will be subject to Mumbai jurisdiction only"
IS AFFIRMATIVE. YES! YOU CAN ENTER INTO A CONTRACT OF LIKE NATURE "ONLY"IS A MUST WORD TO BE USED AND SUCH A CONTRACT IS VALID ONE.
SAPNA KANNAIDAS
(Querist) 18 June 2011
Dear Prabhakar Sir,
But can the company include the jurisdiction clause in its invoice and bind the other party?
Pls revert.
Regards,
sapna K
prabhakar singh
(Expert) 18 June 2011
YES !THAT IS LEGAL AND VALID,AND TO EXCLUDE OTHER JURISDICTIONS COMPLETELY USE OF WORD "ONLY"IS A MUST.
ONE THING MORE !TO BIND THE OTHER PARTY ONE SHOULD GET IT SIGNED BY OTHER PARTY.
GET IT TYPED BOLDLY ON FACE OF THE PAPER IS ANOTHER CAUTION.
SAPNA KANNAIDAS
(Querist) 18 June 2011
Thank you very much sir.
Regards,
Sapna K
Ashok Yadav
(Expert) 18 June 2011
You should go through the case of 'Harman Electronics Pvt. Ltd. Versus National Panasonic India Limited' bearing Criminal Appeal No. 2021 of 2008. It clarifies on the question of territorial jurisdiction in Sec. 138 cases.
It says that only sending of Legal notice from a place it does not constitute it a place of jurisdiction for Sec 138 complaint case.All other points will remain same as these were in Bhaskaran Vs, Shankaran
Advocate Bhartesh goyal
(Expert) 19 June 2011
Mentioning the clause in invoice regarding jurisdiction does not give right to party to file a complaaint u/s 138 of N.I.Act.In criminal cases the court having the jurisdiction to try the case where the offence has committed but in case u/s 138 of N.I Act Hon' ble S.C has already held in K.Bhaskaran's case the five places where the complaint can be filed.
Advocate. Arunagiri
(Expert) 19 June 2011
Mentioning the jurisdiction in the invoice will not give the right to the party and it will not bind the other party.
Where the cause of action arose is important.
Arun Kumar Bhagat
(Expert) 19 June 2011
K.Bhaskaran's case has been referred by Supreme Court in Harman Electronic 's Case.So it is the latest judgement over the issue of jurisdiction. Follow the ratio of Harman Electronics'case.
J K Agrawal
(Expert) 19 June 2011
Jurisdiction clause is of no use in criminal cases like one of s 138. I personally vote that it is further of no use in civil cases also and it does not bind other party unless the jurisdiction clause is essence of contract.
