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CASE NO.: Appeal (civil)  1269 of 2006

PETITIONER: Musaraf Hossain Khan

RESPONDENT: Bhagheeratha Engg. Ltd. & Ors

DATE OF JUDGMENT: 24/02/2006

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T [Arising out of SLP (C) No. 6656 of 2005]  

S.B. Sinha,  J.

       Leave granted.  

       The appellant herein filed a complaint petition in the court of Chief  Judicial Magistrate, Birbhum at Suri being CC No. 339 of 2004 alleging  inter alia therein that several cheques of diverse sums issued by the  respondent herein had been dishonoured, and, thus, they committed an  offence punishable under Section 138 of the Negotiable Instrument Act,  1881 (hereinafter referred to as ’the Act’).  

       The appellant herein entered into a contract with the Respondent No. 1  herein (Company) for supply of stone chips.  The company used to hand  over post-dated cheques to the appellant towards the price of stone chips as  also transport, handling, postage and other charges.  The Company had  issued six cheques of the following description in favour of the appellant:  

Sl.No. Cheque No. Dated Amount 1. 455997  10.06.2004  Rs. 5,33,795 2. 455998  10.07.2004  Rs. 5,33,795  3. 455999  10.08.2004  Rs. 5,33,795  4. 455993  10.06.2004  Rs. 6,49,085 5. 455994  10.07.2004  Rs. 6,49,085 6. 455995

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10.08.2004  Rs. 6,49,085

Total:  Rs. 35,48,640

       The aforementioned cheques were deposited with "Mayurakhi Gramin  Bank" Suri branch but they were returned by the Banker stating "full cover  not received".  A demand notice was sent by the appellant demanding  payment of the said cheque to the respondent in September, 2004.  Out of the  aforementioned sum of Rs. 35,48,640/- a sum of Rs. 5,33,795/- was paid by  respondent No. 4 on or about 15.9.2004.   The appellant alleged that a sum  of Rs. 30,14,845/- is still due and owing to him from the respondents. The  respondents admit the claim of the appellant.   They are said to have assured  him that the rest of the amount shall be paid, but the same has not been done.   

The appellant on the aforementioned allegations filed a complaint  petition in the court of Chief Judicial Magistrate, Birbhum at Suri  which  was registered as CC No. 339 of 2004.  By an order dated 10.11.2004 the  Chief Judicial Magistrate upon examining the appellant on oath took  cognizance of the said offence stating:   

"\005.Hd. Considered. Cog. Is taken.  Examined the complainant Mosaraf Hossain on  S/A.  A Prima facie case has been made out against the  accused persons u/s. 138 N.I. Act.  Issue summons upon the accds Persons at once.  To 3/2/05 for S/R & appear\005."

       The respondents allegedly received the summons sent to them at  Kolaghat, Midnapore, West Bengal.  Despite receipt of the summons instead of appearing before the Court  of the Chief Judicial Magistrate, Birbhum at Suri,  the respondents filed a  writ petition in the High Court of Kerala at Ernakulam which was registered  as W.P. (C) No. 2666 of 2005 praying, inter alia, for the following reliefs :   "a) declare that the petitioners herein are not liable to be  proceeded against on the basis of Ext. P4 complaint;  

b) declare that the petitioners herein are not liable to be  proceeded against on the basis of Ext. P4 complaint;  

c) issue an appropriate writ, order or direction quashing  Ext. P4 complaint; "

Interim relief by way of stay of all further proceedings pursuant to  the  said complaint  petition including the arrest of the petitioners; pending final  disposal of the said writ petition was also prayed for.  

A learned Single Judge of the Kerala High Court  on 25.1.2005 passed  the following order:  

"Notice and interim stay for six months."         The said order of stay is said to have been extended from time to time.

It is not disputed that the respondents herein undertook the work of  construction of major bridges between Dhankuni & Kharagpur in the State  of West Bengal as a part of ongoing project of the National Highway  Authority of India to widen and strengthen the National Highway.  It is  furthermore not in dispute that for the purpose of executing the said work the

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company entered into an engineering contract with the National Highway  Authority of India.    In the writ petition, it was stated:  

"The 1st respondent herein \026 a stone quarry owner, is a  person who supplied crushed stone aggregates \026 a raw  material that was needed for the aforesaid work  undertaken by the 1st petitioner company.  He along  with another had entered into an agreement with the 1st  petitioner company in that behalf, pursuant to which the  supply was made.  The 1st petitioner company gave  good business to the 1st respondent, paying him for than  Rs. 3 crores in the transaction.  However, towards the  end of the transactions, due to the aforesaid financial  imbroglio in which the 1st petitioner company was  placed in, an outstanding amount of about 35 lakhs  remained payable to the 1st respondent herein.  There is  no question  of the 1st petitioner  company running away  from  its responsibility of paying the amount due \026 but it  needed some time to augment its resources in the  context of the aforementioned financial entanglement it  found itself in."                       [Emphasis supplied]

       It was accepted that for securing the payment for supply of stone  chips post-dated cheques used to be given.   The reason for bouncing of the  said cheques is said to be that all of them were presented without prior  information to the Company.  The respondents further averred in the writ  petition that the National Highway Authority had not paid them a sum of Rs.  5.5 crores.  However, the statements made in the complaint petition to the  effect that a payment of a sum of Rs. 5,33,795/- out of the total demand of  Rs.35,48,640/-  was made, had been admitted.  Some purported questions of  law have been raised in the said writ petition contending as to why the order  taking cognizance was bad in law including that in term of Section 219 of  the Code of Criminal Procedure the first respondent could not file one  complaint in respect of all the dishonoured five cheques.           The contention of the learned counsel appearing on behalf of the    respondent is that as the cheques having been issued from the registered  office of the respondent company, a part of cause of action arose within the  jurisdiction of the Kerala High Court.  Strong reliance in this behalf has  been placed on by the learned counsel in Navinchandra N. Majithia vs.  State of Maharashtra [(2000) 7 SCC 640] and a decision of the learned  Single Judge of the Kerala High Court in Augustine vs. Omprakash  Nanakram   [2001 (2) KLT 638].

The primary question, which arises for consideration, is as to whether  the Kerala High Court had jurisdiction in the matter.   

In the writ petition, the jurisdiction of the High Court was invoked  stating:  

"It is in these circumstances that the petitioners herein  are approaching this Hon’ble court with a prayer to  quash Ext. P4 complaint.  It is respectfully that this  Hon’ble Court has the necessary jurisdiction to interfere  in the matter in as much as part of the cause of action  arose within the territorial jurisdiction of this Hon’ble  court.  The registered and Head Office of the 1st  Petitioner Company is at Vazhakkala, Kakkanad,  Ernakulam and the amount due under the cheques that  are the subject matter of Ext. P4 complaint was meant to  be payable at Ernakulam. In fact out of the 6  dishonoured  cheques, payment in respect of one cheque  was sent from Ernakulam along with Ext. P2 reply."

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       In  Navinchandra N. Majithia (supra)  a contract was entered into  by and between a company, Indian Farmers Pvt. Ltd. (IFPL) and Chinar  Exort Ltd. (CEL).  The appellant therein was the Managing Director of the  IFPL company.  CEL entered into an agreement with IFPL for purchase of  the entire shares of IFPL for which it paid earnest money.  It, however,  failed to fulfil its commitment to pay the balance purchase price within the  specified time. The IFPL terminated the agreement. A suit was filed by CEL  in the High Court of Bombay for specific performance of the said  agreement.  Two shareholders of CEL took over management and control of  the company as Directors and they formed another company named JBHL at  Shilong in the State of Meghalaya. Later the said suit was withdrawn upon  the appellant’s returning the amount paid by CEL which was earlier  forfeited by the appellant.  Pursuant to the said agreement JBHL made  payments for the purchase of shares of IFPL.  But the appellant therein  contended that as JBHL committed default in making the balance payment  and thereby committed breach of the agreement, the said agreement stood  terminated and the earnest money stood forfeited as stipulated in the  agreement.  In the aforementioned situation a complaint was filed by the  JBHL against the appellant at Shillong.  The maintainability of the said  complaint came to be questioned by Majithia by filing a writ petition before  the Bombay High Court which was dismissed.  Writ jurisdiction under  Article 226 of the Constitution was invoked on the ground that the entire  transaction on which the complaint was based had taken place at Mumbai  and not at any other place outside the said town, much less at Shillong.  It  was further contended that the jurisdiction to investigate into the contents of  the complaint was only with the police/courts in Mumbai.  The prayers  made in the said writ petition were:  

"(a) to quash the complaint lodged by JBHL or in the  alternative to issue a writ of mandamus directing the  State of Maghalaya to transfer the investigation  being  conducted by the officers of CID at Shillong to the  Economic Offences Wing, General Branch of CID,  Mumbai or any other investigating agency of the  Mumbai Police, and  

(b) to issue a writ of prohibition or any other order or  direction restraining the Special SP Police, CID,  Shillong and/or any investigating agency of the  Meghalaya Police from taking any further step in  respect of the complaint lodged by JBHL with the police  authorities at Shillong."

       The said writ petition, as indicated hereinbefore, was dismissed by the  Bombay High Court.  This Court reversed the said order opining that the  entire cause of action arose within the jurisdiction of the High Court of  Bombay.   Upon noticing some earlier decisions of this Court, it was  observed :  

"Tested in the light of the principles laid down in the  cases noted above the judgment of the High Court under  challenge is unsustainable. The High Court failed to  consider all the relevant facts necessary to arrive at a  proper decision on the question of maintainability of the  writ petition, on the ground of lack of territorial  jurisdiction. The Court based its decision on the sole  consideration that the complainant had filed the  complaint at Shillong in the State of Meghalaya and the  petitioner had prayed for quashing the said complaint.  The High Court did not also consider the alternative  prayer made in the writ petition that a writ of mandamus  be issued to the State of Meghalaya to transfer the

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investigation to Mumbai Police. The High Court also  did not take note of the averments in the writ petition  that filing of the complaint at Shillong was a mala fide  move on the part of the complainant to harass and  pressurise the petitioners to reverse the transaction for  transfer of shares. The relief sought in the writ petition  may be one of the relevant criteria for consideration of  the question but cannot be the sole consideration in the  matter. On the averments made in the writ petition gist  of which has been noted earlier it cannot be said that no  part of the cause of action for filing the writ petition  arose within the territorial jurisdiction of the Bombay  High Court."

       In Augustine (supra)  a learned Single Judge of the Kerala High Court  again on arriving at a finding of fact obtaining therein was of the opinion that  the cause of action, therefore, arose within the jurisdiction of the Kerala  High Court.  It was, however, rightly  held:  

"So far as the question of territorial jurisdiction  with  reference to a criminal offence is concerned, the main  factor to be considered is the place where the alleged  offence was committed."

       Cause of action within the meaning of clause (2) of Article 226 shall  have the same meaning as is ordinarily understood.  The expression ’Cause  of action’ has a definite connotation.  It means a bundle of facts which  would be required to be proved.   

       In State of Rajasthan & Ors. vs. M/s Swaika Properties & Anr.  [(1985) 3 SCC 217] this Court observed that service of notice was not an  integral part of ’cause of action’ within the meaning of Article 226 (2) of the  Constitution of India.  

       In Aligarh Muslim University & Anr. vs. Vinay Engineering  Enterprises Pvt. Ltd. & Anr.  [(1994) 4 SCC 710] a three Judge Bench  opined that only because the office of the firm was at Calcutta, the High  Court of Calcutta could not exercise any jurisdiction, stating :  

"\005We are constrained to say that this is a case of abuse  of jurisdiction and we feel that the respondent  deliberately moved the Calcutta High Court ignoring the  fact that no part of the cause of action had arisen within  the jurisdiction of that Court.  It clearly shows that the  litigation filed in the Calcutta High Court was  thoroughly unsustainable."

       Yet again in Oil  and Natural Gas Commission vs. Utpal Kumar  Basu & Ors. [(1994) 4 SCC 711] it was held that a party becoming aware  of the contract to be given to a successful bidder "ONGC" on reading the  advertisement, which appeared in the Times of India at Calcutta or sending  representations or fax messages submitting tender from its Calcutta Office  pursuant to the said advertisement, would not confer any cause of action on  the Calcutta High Court, stating:  

"Therefore, broadly speaking, NICCO claims that a part  of the cause of action arose within the jurisdiction of the  Calcutta High Court because it became aware of the  advertisement in Calcutta, it submitted its bid or tender  from Calcutta and made representations demanding  justice from Calcutta on learning about the rejection of  its offer. The advertisement itself mentioned that the

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tenders should be submitted to EIL at New Delhi; that  those would be scrutinised at New Delhi and that a final  decision whether or not to award the contract to the  tenderer would be taken at New Delhi. Of course, the  execution of the contract work was to be carried out at  Hazira in Gujarat. Therefore, merely because it read the  advertisement at Calcutta and submitted the offer from  Calcutta and made representations from Calcutta would  not, in our opinion, constitute facts forming an integral  part of the cause of action. So also the mere fact that it  sent fax messages from Calcutta and received a reply  thereto at Calcutta would not constitute an integral part  of the cause of action."  

In  Nakul Deo Singh v. Deputy Commandant [1999 (3) KLT 629], a  Full Bench of the Kerala High Court speaking through one of us, P.K.  Balasubramanyan, J., while considering the question as to whether receipt of  an order passed by an appellate authority in a disciplinary proceeding would  constitute cause of action, upon noticing the definition thereof as stated in  Mulla’s Code of Civil Procedure, 15th Edn., Vol. 1 at page 251 and a  decision of the Court of Appeal in Paragon Finance v. D.B. Thakerar & Co.  [(1999) 1 All ER 400], opined :

"\005The fact that a person who was dismissed from  service while he was in service outside the State would  have to suffer the consequence of that dismissal when  he is in his native place by being rendered jobless, is not  a fact which constitutes the bundle of facts giving rise to  a cause of action in his favour to challenge his  dismissal.  That right accrued to him earlier when he  was dismissed from service outside the State and he lost  his employment.  Similarly, when an appeal is filed by  him to an appellate authority who is outside the  jurisdiction  of this High Court and that appeal is  dismissed by the appellate authority, the merger  in the  decision of the Appellate Authority takes place when  the appeal is dismissed and not when the appellant  receives the order.  What a writ petitioner need plead as  a part of his cause of action is the fact that his appeal  was dismissed wholly or in part and not the fact that the  order was communicated to him.  That plea is relevant  only to show when the right of action arose in his  favour.  The receipt of the order only gives him a right  of  action on the already accrued cause of action and  enables him to meet a plea of laches or limitation raised  in opposition.  That the consequences of a proceeding in  the larger sense are suffered by a person in his native  place is not a ground to hold that the High Court within  the jurisdiction of which the native place is situate is  also competent to entertain a Writ Petition under Art.  226 of the Constitution.  When a person is dismissed or  reduced in rank, he suffers the consequences where he  was employed at the relevant time and not in his native  place to which he might have retired on his dismissal."             In Union of India and Others v. Adani Exports Ltd. and Another  [(2002) 1 SCC 567], this Court observed :

 "It is seen from the above that in order to confer  jurisdiction on a High Court to entertain a writ petition  or a special civil application as in this case, the High  Court must be satisfied from the entire facts pleaded in  support of the cause of action that those facts do

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constitute a cause so as to empower the court to decide a  dispute which has, at least in part, arisen within its  jurisdiction. It is clear from the above judgment that  each and every fact pleaded by the respondents in their  application does not ipso facto lead to the conclusion  that those facts give rise to a cause of action within the  court’s territorial jurisdiction unless those facts pleaded  are such which have a nexus or relevance with the lis  that is involved in the case. Facts which have no bearing  with the lis or the dispute involved in the case, do not  give rise to a cause of action so as to confer territorial  jurisdiction on the court concerned\005"                  

       It is no doubt true that in a criminal matter also the High Court may  exercise its extra-ordinary writ jurisdiction  but interference with an order of  Magistrate taking cognizance under Section 190 of the Code of Criminal  Procedure will stand somewhat  on a different footing as an order taking  cognizance can be the subject matter of a revisional jurisdiction as well as of  an application invoking the  inherent  jurisdiction of the High Court.  A writ  of certiorari ordinarily would not be issued by a writ court under Article 226  of the Constitution of India against a Judicial Officer. [See Naresh  Shridhar Mirajkar & Ors. vs.  State of Maharashtra & Anr. [AIR 1967   SC 1 : (1966) 3 SCR 744].  However, we are not oblivious of a decision of  this Court in Surya Dev Rai vs. Ram Chander Rai & Ors. [(2003) 6 SCC  675] wherein this court upon noticing Naresh Shridhar Mirajkar (supra)   and also relying on a Constitution Bench of this Court in Rupa Ashok  Hurra vs. Ashok Hurra [(2002) 4 SCC 388] opined that a Judicial Court  would also be subject to exercise of writ jurisdiction of the High Court. The  said decision has again been followed in Ranjeet Singh vs. Ravi Prakash  [(2004) 3 SCC 692].  It is, however, not necessary to dilate on the matter  any further.   The jurisdiction of the High Court under Section 482 of Code  of Criminal Procedure was noticed recently by this Court in State of U.P. &  Ors. vs. Surendra Kumar [(2005) 9 SCC 161] holding that even in terms  thereof, the court cannot pass an order beyond the scope of the application  thereof.  In Surya Dev Rai (supra), we may however, notice that this Court  categorically stated that the High Court in issuing a writ of certiorari  exercises a very limited jurisdiction.  It also made a distinction between  exercise of jurisdiction by the High Court for issuance of a writ of certiorari  under Article 226 and 227 of the Constitution of India.  It categorically laid  down that while exercising its jurisdiction under Article 226, the High Court  can issue a writ of certiorari only when an error apparent on the face of the  record appears as such; the error should be self evident.  Thus, an error  according to this Court needs to be established. As regards exercising the  jurisdiction under Article 227 of the Constitution of India  it was held:  

"\005.The power may be exercised in cases occasioning  grave injustice or failure of justice such as when (i) the  court or tribunal has assumed a jurisdiction which it  does not have, (ii) has failed to exercise a jurisdiction  which it does have, such failure occasioning a failure of  justice, and (iii) the jurisdiction though available is  being exercised in a manner which tantamounts to  overstepping the limits of jurisdiction."

       In Kusum Ingots & Alloys Ltd. vs. Union of India & Anr. [(2004)  6 SCC 254] a three Judge Bench of this Court clearly held that with a view  to determine the jurisdiction of one High Court viz.-a-viz the other the facts  pleaded in the writ petition must have a nexus on the basis whereof a prayer  can be made and the facts which have nothing to do therewith cannot give  rise to a cause of action to invoke the jurisdiction of a court. In that case it  was clearly held that only because the High Court within whose jurisdiction  a legislation is passed, it would not have the sole territorial jurisdiction but

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all the High Courts where cause of action arises, will have jurisdiction.  Distinguishing, however, between passing of a legislation by a Legislature  of the State and an order passed by the Tribunal or Executive Authority, it  was held:        "When an order, however, is passed by a court or  tribunal or an executive authority whether under  provisions of a statute or otherwise, a part of cause of  action arises at that place. Even in a given case, when  the original authority is constituted at one place and the  appellate authority is constituted at another, a writ  petition would be maintainable at both the places. In  other words, as order of the appellate authority  constitutes a part of cause of action, a writ petition  would be maintainable in the High Court within whose  jurisdiction it is situate having regard to the fact that the  order of the appellate authority is also required to be set  aside and as the order of the original authority merges  with that of the appellate authority.         Lt. Col. Khajoor Singh v. Union of India  whereupon the learned counsel appearing on behalf of  the appellant placed strong reliance was rendered at a  point of time when clause (2) of Article 226 had not  been inserted. In that case the Court held that the  jurisdiction of the High Court under Article 226 of the  Constitution of India, properly construed, depends not  on the residence or location of the person affected by  the order but of the person or authority passing the order  and the place where the order has effect. In the latter  sense, namely, the office of the authority which is to  implement the order would attract the territorial  jurisdiction of the Court was considered having regard  to Section 20(c) of the Code of Civil Procedure as  Article 226 of the Constitution thence stood, stating:  (AIR p.540, para 16) "The concept of cause of action cannot in our  opinion be introduced in Article 226, for by  doing so we shall be doing away with the  express provision contained therein which  requires that the person or authority to whom  the writ is to be issued should be resident in or  located within the territories over which the  High Court has jurisdiction. It is true that this  may result in some inconvenience to persons  residing far away from New Delhi who are  aggrieved by some order of the Government of  India as such, and that may be a reason for  making a suitable constitutional amendment in  Article 226. But the argument of inconvenience,  in our opinion, cannot affect the plain language  of Article 226, nor can the concept of the place  of cause of action be introduced into it for that  would do away with the two limitations on the  powers of the High Court contained in it."

In Union of India and Others vs. Adani Exports Ltd. & Another  [(2002) 1 SCC  567], this Court observed :

"17. It is seen from the above that in order to confer  jurisdiction on a High Court to entertain a writ petition  or a special civil application as in this case, the High  Court must be satisfied from the entire facts pleaded in  support of the cause of action that those facts do  constitute a cause so as to empower the court to decide a  dispute which has, at least in part, arisen within its  jurisdiction. It is clear from the above judgment that

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each and every fact pleaded by the respondents in their  application does not ipso facto lead to the conclusion  that those facts give rise to a cause of action within the  court’s territorial jurisdiction unless those facts pleaded  are such which have a nexus or relevance with the lis  that is involved in the case. Facts which have no bearing  with the lis or the dispute involved in the case, do not  give rise to a cause of action so as to confer territorial  jurisdiction on the court concerned. ."          

       We have referred to the scope of jurisdiction under Articles 226 and  227 of the Constitution only to highlight that the High Courts should not  ordinarily interfere with an order taking cognizance passed by a competent  court of law except in a proper case.  Furthermore only such High Court  within whose jurisdiction the order of subordinate court has been passed,  would have the jurisdiction to entertain an application under Article 227 of  the Constitution of India unless it is established that the earlier cause of  action arose within the jurisdiction thereof.

       The High Court, however, must remind themselves about the doctrine  of forum non conveniens also.  [See Mayar (H.K) Ltd.& Ors. vs. Owners  & Parties Vessel M.V. Fortune Express & Ors.  - 2006 (2) SCALE 30]  

       In terms of Section 177 of the Code of Criminal Procedure every  offence shall ordinarily be inquired into and tried by a court within whose  local jurisdiction it was committed.  Section 178 provides for place of  inquiry or trial in the following terms:  

"(a) When it is uncertain in which of several local areas   an offence was committed, or  

(b) where an offence is committed partly in one local  area  and partly in another, or  

(c) where an offence  is a continuing one, and continues  to be committed in more local areas than one, or  

(d) where it consists of several acts done in different  local areas."

       A bare perusal of the complaint petition would clearly go to show that  according to the complainant the entire cause of action arose within the  jurisdiction of the district courts of Birbhum and in that view of the matter it  is that court which will have jurisdiction to take congnizance of the offence.   In fact the jurisdiction of the court of CJM, Suri, Birbhum is not in question.  It is not contended that the complainant had suppressed material fact and  which if not disclosed would have demonstrated that the offence was  committed outside the jurisdiction of the said court.  Even if Section 178 of  the Code of Criminal Procedure is attracted, the court of the Chief Judicial  Magistrate, Birbhum will alone have jurisdiction in the matter.   

Sending of cheques from Ernakulam or the respondents having an  office at that place did not form an integral part of  ’cause of action’ for  which the complaint petition was filed by  the appellant and cognizance of  the offence under Section 138 of the Negotiable Instruments Act, 1881 was  taken by the Chief Judicial Magistrate, Suri.  We may moreover notice that  the situs of the accused wherefor jurisdiction of a court can be invoked and  which is an exception to the aforementioned provisions as contained in  Section 188 of the Code of Criminal Procedure recently came up for  consideration by this court in Om Hemrajani vs. State of U.P. & Anr.  [(2005) 1 SCC 617].  It was held that the said provisions may be interpreted  widely.  The law was laid down in the following terms :

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"Section 177 postulates that ordinarily offence shall be  inquired into and tried by a court within whose local  jurisdiction it was committed. Section 178, inter alia,  deals with situations when it is uncertain in which of  several local areas, an offence is committed or partly  committed in one area and partly in another. The section  provides that the offence can be inquired into or tried by  a court having jurisdiction over any of the local areas  mentioned therein. Under Section 179, offence is triable  where act is done or consequences thereof ensued.  Section 180 deals with the place of trial where act is an  offence by reason of its relation to other offence. It  provides that the first-mentioned offence may be  inquired into or tried by a court within whose local  jurisdiction either act was done. In all these sections, for  jurisdiction the emphasis is on the place where the  offence has been committed. There is, however, a  departure under Section 181(1) where additionally place  of trial can also be the place where the accused is found,  besides the court within whose jurisdiction the offence  was committed. But the said section deals with offences  committed by those who are likely to be on the move  which is evident from the nature of offences mentioned  in the section. Section 181(1) is in respect of the  offences where the offenders are not normally located at  a fixed place and that explains the departure. Section  183 deals with offences committed during journey or  voyage. Section 186 deals with situation where two or  more courts take cognizance of the same offence and in  case of doubt as to which one of the courts has  jurisdiction to proceed further, the High Court decides  the matter. Section 187 deals with a situation where a  person within the local jurisdiction of a Magistrate has  committed an offence outside such jurisdiction. The  Magistrate can compel such a person to appear before  him and then send him to the Magistrate which has  jurisdiction to inquire into or try such offence.

9. Under the aforesaid circumstances, the expression  abovenoted in Section 188 is to be construed. The same  expression was also there in the old Code. From the  scheme of Chapter XIII of the Code, it is clear that  neither the place of business nor place of residence of  the petitioner and for that matter of even the  complainant is of any relevance. The relevant factor is  the place of commission of offence. By legal fiction,  Section 188 which deals with offence committed outside  India, makes the place at which the offender may be  found, to be a place of commission of offence. Section  188 proceeds on the basis that a fugitive from justice  may be found anywhere in India. The finding of the  accused has to be by the court where the accused  appears. From the plain and clear language of the  section, it is evident that the finding of the accused  cannot be by the complainant or the police. Further, it is  not expected that a victim of an offence which was  committed outside India should come to India and first  try to ascertain where the accused is or may be and then  approach that court. The convenience of such a victim is  of importance. That has been kept in view by Section  188 of the Code. A victim may come to India and  approach any court convenient to him and file complaint  in respect of offence committed abroad by an Indian.  The convenience of a person who is hiding after  committing offence abroad and is a fugitive from justice

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is not relevant. It is in this context, the expression in  question has to be interpreted. Section 188 has been the  subject-matter of interpretation for about 150 years."  

       In this case, the averments made in the writ petition filed by the  respondent herein even if given face value and taken to be correct in their  entirety would not confer any jurisdiction upon the Kerala High Court.  The  agreement was entered into within the jurisdiction of the Calcutta High  Court.  The project for which the supply of stone chips and transportation  was being carried out was also within the State of West Bengal. Payments  were obviously required to be made within the jurisdiction of the said court  where either  the contract had been entered into or where payment was to be  made.   

The appellant did not deny or dispute any of the averments made in  the complaint petition.  In the writ petition it merely wanted some time to  make the payment.  It is now well known that the object of the provision of  Section 138 of the Act is that for proper and smooth functioning of business  transaction in particular, use of cheques as negotiable instruments would  primarily depend upon the integrity and honesty of the parties.  It was  noticed that cheques used to be issued as a device inter alia for defrauding  the creditors and stalling the payments.  It was also noticed in a number of  decisions of this Court that dishonour of a cheque by the bank causes  incalculable loss, injury and inconvenience to the payee and the entire  credibility of the business transactions within and outside the country suffers  a serious setback.  It was also found that the remedy available in a civil  court is a long-drawn process and an unscrupulous drawer normally takes  various pleas to defeat the genuine claim of the payee.  [See Goa Plast (P) Ltd. vs. Chico Ursula D’Souza -(2004) 2 SCC 235]   and Monaben Ketanbhai Shah and Anr. vs. State of Gujarat & Ors. - (2004) 7 SCC 15].  

       In  Prem Chand Vijay Kumar vs. Yashpal Singh & Anr. [(2005) 4  SCC 417], we may, however, notice that it was held that for securing  conviction under Negotiable Instruments Act, 1881 the facts which are  required to be proved are:  "(a) that the cheque was drawn for payment of an amount  of money for discharge of a debt/liability and the cheque  was dishonoured;  

(b) that the cheque was presented within the prescribed  period;  

(c) that the payment made a demand for payment of the  money by giving a notice in writing to the drawer within  the stipulated period; and  

(d) that the drawer failed to make the payment within 15  days of the receipt of the notice."

       For the purpose of proving the aforementioned ingredients of the  offence under Section 138 of the Act, the complainant-appellant was  required to prove the facts constituting the cause of action therefor none of    which arose within the jurisdiction of the Kerala High Court.  It is, apt to  mention that In Prem Chand Vijay Kumar (supra) this Court held that  cause of action within the meaning of Section 142 (b) of the Act can arise  only once.   

       For the reasons aforementioned, we are of the opinion that the Kerala  High Court had no jurisdiction to entertain the writ petition as no part of  cause of action arose within its jurisdiction.           For the foregoing reasons this appeal is allowed.  The impugned  Judgment and order is set aside.  Interim orders passed by the High Court

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shall stand vacated.  The respondent shall now appear before the court  concerned.           In the facts and circumstances of the case, appellants are entitled to  costs which is assessed at Rs. 10,000/-.