Criminal Petition Nos. 4 and 5 of 2009. Case: Dinesh Chandra Shib Vs Hiralal Saha. Guwahati High Court
| Case Number | Criminal Petition Nos. 4 and 5 of 2009 |
| Counsel | For Appellant: B.N. Majumder and S. Choudhury, Advs. And For Respondents: S. Talapatra and T.K. Debbarma, Advs. |
| Judges | P.K. Musahary, J. |
| Issue | Negotiable Instruments Act, 1881 - Sections 3, 72, 138 and 142; Dowry Prohibition Act, 1961 - Section 4; Criminal Procedure Code (CrPC), 1973 - Sections 177, 178, 179 and 482; Indian Penal Code - Sections 406 and 498A; Constitution of India - Article 227 |
| Citation | 2010 CriLJ 3689, (2010) 1 GLR 316, 2009 (3) GLT 605 |
| Judgement Date | June 12, 2009 |
| Court | Guwahati High Court |
Judgment:
1. Both those petitions have been filed by the petitioner under Section 482 of Code of Criminal Procedure, 1973, read with Article 227 of the Constitution of India, challenging the maintainability of complaint cases being C.R. Case No. 2841/2006 and C.R. Case No. 2842/2006, filed by the respondent which are pending before the Judicial Magistrate, First Class, court. No. 5, Agartala, Tripura. Similar facts and questions of law are involved in these two petitions and as such, for the sake of convenience, heard together for disposal.
2. The details of the facts are not necessary to be narrated, however, for consideration of the question of law involved, it may be stated that both the petitioner and the respondent are businessmen. The petitioner Sri
3. Heard Mr. B. N. Majumder, Learned Counsel for the petitioners.
(1) The petitioner resides at West Bank Jagannath Dighi under Police Station R.K. Pur in South Tripura District and ho carries on brick field and other business with establishments at
(2) The cheques in favour of the respondent to be drawn at Tripura Gramin Bank, Udaipur Branch, is located in South Tripura District,
(3) The witnesses named in the complaint petitions are all from Udaipur in the South Tripura District,
(4) The agreement/compromise as mentioned in the complaint petitions was arrived at a meeting held on 20.6.2005 at
(5) The demand notice was issued by the respondent upon the petitioner at his residence at West Bank of
(6) The cause of action arose at Udaipur within the territorial jurisdiction of Chief Judicial Magistrate, which is within the Sessions Division of South Tripura District, and,
(7) The residence of holder of the cheque and/or submission of a cheque to a Bank where the holder of the cheque has the Account does not give the cause of action to a criminal court where the Bank or the complainant is residing.
4. According to Mr. Majumder, Learned Counsel for the petitioner, the learned trial court vide order dated 7.11.2008 dismissed the petitions filed by the petitioner with an observation that a bare reading of complaint (Annexure-P/1 to the petition) would show that the complainant willfully suppressed the relevant facts relating to handing-over of the money to the petitioner by the respondent as well as handing-over of the cheque by the petitioner to the respondent by making false statements in paragraph-21 of his complaint petition. The learned trial court also observed therein that the complainant is having his address and also the relevant cheque herein was submitted to the bank within the jurisdiction of this Id. Court and the learned court has pecuniary jurisdiction to try the instant case.
In this regard, Mr. Majumder, learned Counsel, submits that the residence of holder of the cheque and/or submission of a cheque to a Bank where the holder of the cheque has the account would not give the cause of action to a criminal court where the Bank or the complainant is residing rather in view of Section 138 of Negotiable Instruments Act, 1881, read with Section 72 of the said Act would show that the cause of action arises only when the cheque is returned unpaid by a Bank on which the same was drawn.
5. In support of his above submissions,
(1) Shri Ishar Alloy Steels Ltd. v. Jayaswals NECO Ltd. (2001) 3 SCC 609, wherein the Apex Court held, amongst others, that a combined reading of Sections 3, 72 and 138 of the Negotiable Instruments Act, 1881, would leave no doubt that the law mandates that the cheque to be presented at the Bank on which it is drawn if the drawer is to be held criminally liable.
(2)
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