REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1715   OF 2008 (Arising out of SLP (Crl.) NO.73 of 2006)

Smt. Shamshad Begum    ....Appellant

Versus

B. Mohammed  ....Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of the Karnataka High Court dismissing the petition filed under Section 482

of the Code of Criminal Procedure, 1973 (in short the ‘Code’).  Prayer in the

petition was to quash all proceedings in CC No. 1042 of 2004 on the file of

learned  Vth  JMF  Court  Mangalore.   Appellant  is  the  accused  in  the

aforesaid case in relation to an offence punishable under Section 138 of the

Negotiable Instruments Act, 1881(in short the ‘Act’).  The petition was filed

before  the  High  Court  on  the  ground  that  the  Mangalore  Court  has  no

jurisdiction to try the case.  It  was stated that the agreement between the

parties was entered into Bangalore and the parties live in Mangalore and the

cheque  were  returned  from  the  banks  at  Bangalore  and  therefore  the

Bangalore Court has jurisdiction to try the case.   

3. In response, the respondent had submitted that before issuing notice

to the appellant he had shifted his residence to Mangalore and therefore he

had issued the notice from Mangalore which was received by the appellant

and the reply was sent by her to the complainant to the Mangalore address.

Therefore, as one of the components of the said offence i.e. notice in writing

to the drawer of the cheque demanding payment of cheque amount was sent

from Mangalore, Court at Mangalore had jurisdiction to try the case. The

High Court  noted  that  one of  the components  of the offence  was giving

notice in writing to  the drawer of the cheque demanding payment of the

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cheque amount.  The said action took place within Mangalore jurisdiction

and, therefore, the petition was without merit.  It was however stated that if

the presence of the appellant was not very necessary for continuation of the

proceeding,  on  appropriate  application  being  filed,  the  court  can  grant

exemption from appearance.

4. In support of the appeal learned counsel for the appellant submitted

that the Court at Mangalore had no jurisdiction.

5. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.

6. In K. Bhaskaran v.  Sankaran Vaidhyan Balan & Anr. [1999(7) SCC

510],  it was inter alia observed as follows:

“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 five different localities. But a 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:

“178. (a)-(c) * * * (d) where the offence consists of several acts done in

different local areas, it  may  be  enquired  into  or  tried  by  a  court  having jurisdiction over any of such local areas.”

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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.

17. The more important  point  to  be decided in  this case is whether the cause of action has arisen at all as the notice  sent  by  the  complainant  to  the  accused  was returned  as  “unclaimed”.  The  conditions  pertaining  to the  notice  to  be  given  to  the  drawer,  have  been formulated and incorporated in clauses (b) to (c) of the proviso to Section 138 of the Act. The said clauses are extracted below:

“(b)  the  payee  or  the  holder  in  due  course  of  the cheque,  as  the  case  may be,  makes  a  demand  for  the payment of the said amount of money by giving a notice in  writing,  to  the drawer  of  the  cheque,  within  fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c)  the  drawer  of  such  cheque  fails  to  make  the payment of the said amount of money to the payee or as the  case  may  be,  to  the  holder  in  due  course  of  the cheque  within  fifteen  days  of  the  receipt  of  the  said notice.”

7. As was noted in K. Bhaskar’s case (supra) the offence under Section

138 of the Act can be completed only with the concatenation of a number of

acts.  The acts which are components are as follows:

(1) Drawing of the cheque; (2) Presentation of the cheque to the bank; (3) Returning the cheque unpaid by the drawee bank;

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(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.

8. It  is  not  necessary  that  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 five different localities.  But concatenation of all the above

five is sine qua non for the completion of the offence under Section 138 of

the Act.   

9. In view of the aforesaid, the judgment of the High Court  does not

suffer from any infirmity to warrant interference.

10. The appeal is dismissed.

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………….……J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: November 3, 2008

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