Dear Friends,
In the territorial jurisdiction of 138 NI Act, I have an intention to approch Hon'ble Supreme Court under RTI Act to get the clarification in respect of the status of the pending cases which were filed without territorial jurisdiction ' ab initio'. The cases were entertained by the JM/MM courts for the sole reason that the statutory notice demanding payment had been issued by the advocate of the complainant, who has his office within the territorial limits of that court, certainly it has to face the substantial question of law that whether such type of pending cases are entertained without jurisdiction ‘ab initio’ and what is the legal position in respect of those cases.
Kindly discuss after perusal of my rti petition to concerned mm/jm court for ascertaining the facts.
From:
G. KAMARAJ BHARATHY,
To:
The public Information Officer,
Concerned JM/MM Court
PETITION UNDER RIGHT TO INFORMATION ACT, 2005
Grounds for Petition:
Even though, the Act does seek the reason for the information, for avoiding unnecessary delay, I have herein given the grounds for this petition to establish the intention of common cause and larger public interest.
Upon gone through the case law reported in AIR 1999 Supreme Court 3782, K. Bhaskaran Vs Sankaran Vaidyyan Balan and Another, we have come to the conclusion that the complainant in cheque bounce cases can choose any of the courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts mentioned below was done.
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.
In the above judgement, Hon’ble Supreme Court has stated as “It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or
..2..
at the place where either of them carries on business. Hence, difficulty to fix up any particular locality as the place of occurrence for the offence under section 138 of the Act”.
The above mentioned version itself clearly states that one of the places where the one of five acts occurred, where the drawer resides or at the place where the payee resides or at the place where either of them carries on business the complainant can choose for filing complaint under the Act. In this circumstance, merely we cannot take into account the advocate’s office, which is situated with in the jurisdiction of the trail court, who sent the notice to the accused u/s 138 of the act on behalf of the complainant.
In Smt. Shamshad Begum Vs B. Mohammed case, reported in 2009 Crl. L. J.1304 (Supreme Court), the Complainant had shifted his residence to the Mangalore before issuing statutory notice to the accused and therefore he had issued the notice from Mangalore. Hence, the Hon’ble Supreme Court confirmed the territorial jurisdiction of Mangalore JMF Court to entertain the captioned case by invoking the place of giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, as territorial jurisdiction.
Thereafter, in Harman Electronics Vs National Panasonic India ltd case, the Hon’ble Supreme Court has discussed the territorial jurisdiction of a court to tray an offence u/s 138 of the N.I. Act. Particularly, it has decided a question raised that whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Act.
Even though, the complainant company was having its registered office at Delhi and its bank account also at Delhi alone, the Hon’ble Supreme Court concluded that depending upon the nature of a case, it is necessary to strike a balance between the right of the complainant and the right of an accused vis-à-vis the provisions of the code of criminal procedure. Accordingly it has decided that Delhi court has no Jurisdiction to try the case.
In these circumstances, if a criminal court entertains or already entertained a complaint u/s 142 of the Act for the sole reason that the
…3… statutory notice demanding payment had been issued by the advocate of the complainant, who has his office within the territorial limits of that court, certainly it has to face the substantial question of law that whether such type of pending cases are entertained without jurisdiction ‘ab initio’ and what is the legal position in respect of those cases.
In fact, according to section 138(b) of the Act, demand notice should be given in writing, but it need not be a lawyer notice. Hence, the notice sending by an advocate is only on behalf of his client and the client address, which is indicated in the notice alone, is the place of giving notice in writing to the drawer of the cheque demanding payment of the cheque amount.
At this juncture, meaning of the place of giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, is the complainant residential or business address only and never invoke the advocate’s office, because, the advocate did not send the notice in his individual capacity. If the meaning of place of giving notice is taken as an advocate office also, then the complainant can file anywhere in India simply sending demand notice through a local advocate of such jurisdiction.
But, the legislature had no such intention and the same has been confirmed by the Hon’ble Apex court in Bhaskaran case while interpreted to the proviso, it discussed as “It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business.”
In the above circumstances, the Hon’ble Kerala High Court in Harihara Puthra Sharma Vs State of Kerala and Anr II (2007)BC 576 case decided in the exact question that, criminal court does not get jurisdiction to entertain a complaint u/s 142 of the NI Act for the sole reason that the statutory notice demanding payment had been issued
…4… by the advocate of the complainant who has his office within the territorial limits of the court.
At this juncture, I have an intention to approach the Hon’ble Supreme Court or High Court through Public Interest Litigation or under RTI Act for getting clarification in a substantial question of law that whether a criminal court gets or had got jurisdiction to entertain a complaint under section 142 of the N.I. Act for the sole reason that the statutory notice demanding payment had been issued by the advocate of the complainant who has his office within the territorial limits of that court. Hence, I have to ascertain the fact before the Hon’ble higher courts that thousands of such type of cases are pending before many magistrate Courts including --------------Court. Hence, this petition is filed for seeking following information.
Therefore, I request you to provide the following required information sough for larger public interest.
TO BE ANSWERED INFORMATION:
1. Whether the Hon’ble ---------------- Court entertains or entertained any complaint under section 142 of Negotiable Instrument Act for the sole reason that the statutory notice demanding payment had been issued by the advocate of the complainant who has his office within the territorial limits of this court?
2. If, the 1st question answer is yes; how many such type of cases have been entertained and how many cases are pending therein as on today?
3. Whether any reference has been sent to the Hon’ble High Court by the Hon’ble ------------- Court u/s 395(2) of Cr.P.C. in the above mentioned substantial question of law?
4. If, I am declined to get answer or not satisfied from your answer, with whom I have to file appeal under RTI Act? Please provide the name & Address of the appellate authority.
Thanking you,
Yours faithfully,
