JUDGMENT
Gitesh Ranjan Bhattacharjee, J.
1. The opposite party herein filed a complaint under Section 138/141/142 of the Negotiable Instruments Act in the Court of the Additional Magistrate at Sealdah, 24-Parganas. It seems that there was an agreement between the complainant-company which is a Government of India undertaking and the accused persons who are a partnership firm, namely, the Associated Transport Company and its three partners for engaging the said firm as the warehouse and handling agent of the complainant-company for storage and/or handling of fertilizer on hire commission basis. There was also an agreement, it seems, that the said firm would furnish security to the complainant-company. It is the allegation in the petition of complaint that in accordance with the said agreement the accused persons furnished security by issuing certain cheques. The cheques were issued by accused No. 2 on behalf of accused No. 1 which is the firm. The cheques were drawn on Indian Bank, Khidderpore branch, Calcutta, and the same were presented by the complainant for encashment at the Park Circus branch of the State Bank of India, Calcutta, which duly presented the same to the Indian Bank, Khidderpore branch, Calcutta. The cheques were, however, returned by the drawer bank on the ground of insufficiency of funds with a request to present again. On August 27, 1991, the cheques were again presented but they were again returned by the drawer bank with a note “refer to drawer”. Then on September 6, 1991, a letter was issued by the solicitors on behalf of the complainant to the accused persons at their Burdwan address, inter alia, stating the fact that the cheques were dishonoured on presentation and demanding payment of the concerned amount within 15 days from the date of receipt of the letter. It was also stated therein that the same might be treated as notice under Section 138 of the Negotiable Instruments Act. The allegation is that in spite of such demand by notice under Section 138 of the said Act no payment against the dishonoured cheques had been made by the accused persons. Accordingly, the complainant-company filed the petition of complaint through its secretary and principal officer under Section 138/141/142 of the Negotiable Instruments Act in the Court of the Additional Chief Judicial Magistrate, Sealdah, and the learned Magistrate took cognizance of that complaint and transferred the same to the Judicial Magistrate, Fifth Court, Sealdah, for enquiry and trial. The learned Magistrate, Fifth Court, thereafter examined the complainant and witnesses on oath, perused and considered the complaint along with the xerox annexures thereto as well as the evidence on oath and then recorded his opinion that prima facie case did exist against the accused persons under the said Sections of the Negotiable Instruments Act and directed for issuing summons to the accused persons. The accused persons who are petitioners herein have now come up in this court for quashing the said proceeding under Section 482 of the Code of Criminal Procedure.
2. Three contentions have Been canvassed by Mr. S.C. Bose on behalf of the petitioners. The first contention is that the petition of complaint does not disclose any cause of action against petitioners Nos. 3 and 4, Mahamaya Laha and Debi Prosad Laha, who are partners of the firm, petitioner No, 1. (Associated Transport Company). The second contention is that the Sealdah Court of the Magistrate has no territorial jurisdiction to entertain the complaint or to try the case. The third contention is that the direction of the learned Magistrate for issuing summons to the petitioners is bad inasmuch as the relevant provisions of law were not compiled with.
3. As regards the first contention that the petition of complaint does not disclose any cause of action against petitioners Nos. 3 and 4, I find that there is substance in the same and Mr. B.C. Roy, appearing for the complainant opposite party, in his usual fairness, conceded the validity of the contention raised by Mr. Bose regarding non-disclosure of any cause of action against petitioners Nos. 3 and 4. The cheques in question were issued by accused No. 2 (who is also a partner of the firm) on behalf of the firm, accused No. 1. Under Section 141 of the Negotiable Instruments Act, 1881, where an offence under Section 138 has been committed by a company or firm, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company or the firm for the conduct of its business as well as the company or the firm, as the case may be, becomes liable to be proceeded against and punished. Where an offence under the Act is committed by a company or a firm, the director of the company or the partner of the firm is also liable to be proceeded against and punished if it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of such director or partner, as the case may be. The petition of complaint in the present case does not contain any such averment against petitioners Nos. 3 and 4 as could prima facie make out a case against them under Section 141 of the said Act. That being so the proceeding in the court below so far as accused petitioners Nos. 3 and 4 are concerned must be quashed.
4. As regards the contention of Mr. Bose regarding the territorial jurisdiction of the court below to entertain the complaint and proceed with the case it is necessary at the first instance to take note of certain facts. The complainant-company, M/s. Pyrites Phosphates and Chemicals Ltd., which is a limited Company and a Government of India undertaking represented in the proceeding by its secretary and principal officer, P.S.R. Murthy, has its registered office at Bihar and marketing office at 9, Syed Amir Ali Avenue, Park Circus, P.S. Beniapukar, Calcutta-17, within the territorial jurisdiction of the court below. Accused petitioner No. 1, Associated Transport Company, which is a partnership firm has its office at Station Bazar, Burdwan. In the petition of complaints, it is stated in the cause title that the other accused persons, namely, accused Nos. 2, 3 and 4 work for gain at that address at Burdwan. Accused petitioner No. 2 issued the concerned cheques drawn on Indian Bank, Khidderpore Branch, Calcutta, which of course is outside the territorial jurisdiction of the court below. The cheques were presented for encashment at the complainant’s bank, namely, the State Bank of India, Park Circus branch, Calcutta. The cheques being dishonoured notice under Section 138 of the Negotiable Instruments Act was, issued to the accused petitioners at their Burdwan address. Section 138 runs thus :
” 138. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this Section shall apply unless–
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier,
(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.
Explanation.–For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.”
Section 142 runs thus :
“142. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).–
(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque ;
(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 ;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.”
5. Mr. Roy, on behalf of the opposite party, attracted my attention to an unreported decision of Monoj Kumar Mukherjee J. (as his Lordship then was) dated July 31, 1991, in Criminal Revision No. 807 of 1990 (Andhra Cement Co. Ltd. v. Shree Gopal Bajoria). In that case the petition of complaint under Section 138 of the Negotiable Instruments Act was filed in the Court of the Chief Metropolitan Magistrate, Calcutta. The notice demanding payment under Section 138, it seems, was served upon the accused at their Calcutta office after the cheque was dishonoured but the accused failed to make payment in terms of the demand so made. In the background of the facts of that case, the learned judge made the following observation :
“From a plain reading of the said Section (i.e., Section 138) it is evidently clear that a person becomes liable for punishment thereunder for two things, firstly, issue of a cheque for the discharge, in whole or in part, of any debt or other liability and, secondly, failure to make the payment of the amount under the cheque in spite of a valid notice given by the payee in accordance with the Act. While the former is an ‘act’ the Other is an ‘illegal omission’ which also is an ‘act’ in view of its definition under the General Clauses Act. Under Section 178(d) of the Code where an offence consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any such local areas. In the instant case, as admittedly the cheque was issued from Secunderabad the first of the above two acts cannot be said to have been done in Calcutta, but then, as the materials on record including the complaint indicate that the payment was to be made in Calcutta in terms of the demand, it must be said that the failure to do so, that is to say, the illegal omission took place in Calcutta. In other words, the second act was done in Calcutta. That necessarily means that the court at Calcutta has jurisdiction to try the case.”
6. It has been- argued by Mr. Roy that in view of the said decision the court having jurisdiction over the place where the payment was to be made in terms of the demand made under Section 138 of the Negotiable Instruments Act has jurisdiction to try the case, the Sealdah court, in the present case, has jurisdiction inasmuch as the payment demanded was required to be made at the Calcutta office of the complainant’s company situated within the territorial jurisdiction of the court below. On the other hand, Mr. Bose, on behalf of the petitioners, relied upon the decision of Sunil Kumar Guin J. in Sarbnarayan Jha v. Khan Palchowdhury and Co. [1991] C.Cr.LR. 511 (Cal). In that case, the accused-company had their office at Hare Street, Calcutta. The petitioner-complainant had his business at Howrah. The accused issued cheques in favour of the petitioner-complainant drawn on the Hongkong and Shanghai Banking Corporation, Kadamtala Branch, Howrah. The cheque was dishonoured by the bank on the ground of insufficiency of funds. Thereafter, the complainant issued demand notice which was received by the accused persons at their official address lying within the jurisdiction of the Chief Judicial Magistrate, Calcutta. As the accused failed to pay the demanded amount to the complainant within the statutory period of 15 days from the receipt of the said notice, the complainant filed the complaint under Section 138 of the Negotiable Instruments Act. The learned Chief Metropolitan Magistrate was of the view that the offence under Section 138 was completed as soon as the cheques were returned unpaid by the bank on the ground of insufficiency of funds, etc., and he further held that as the cheques were dishonoured by the bank lying outside the local jurisdiction of the court, the Court of the Chief Metropolitan Magistrate had no territorial jurisdiction to entertain the complaint and on these findings the learned Magistrate directed return of the petition of complaint to the filing advocate. This court was moved against this decision of the learned Chief Metropolitan Magistrate. In that connection, Sunil Kumar Guin], after elaborate discussion, held that the cause of action for the offence under Section 138 arises only on omission or failure on the part of the drawers of the cheque to make payment to the payee as contemplated in Clause (c) of the proviso to Section 138 and as the said failure or omission to pay the amount of the dishonoured cheques took place within the local jurisdiction of the said court, the said court undoubtedly had got jurisdiction to entertain the petition of complaint and was, therefore not justified in directing the return of the petition of complaint to the filing advocate. It is evident that the failure or omission to pay in compliance with a demand notice issued under Section 138, wherever it may take place, must take place at one place and such omission or failure cannot take place at different places. In the case reported in Sarbnarayan Jha v. Khan Palchowdhury and Co. [1991] C.Cr.LR. 311 (Cal), the complainant-company had their office at. Howrah and demand notice under Section 138 was served upon the accused persons at their official address at Hare Street, Calcutta. Sunil Kumar Guin J., in the said decision, held that the failure or omission to comply with the demand notice took place at Calcutta within the jurisdiction of the Chief Metropolitan Magistrate. If we are to follow the ratio of that decision we will have to hold that the failure or omission to comply with the demand notice, if at all happens, happens at the office of the accused where the demand notice is served or received but not complied with. Going by that ratio we find that in this case the demand notice was served upon or received by the accused persons at Burdwan outside the jurisdiction of the Sealdah Court. In the unreported decision in Andhra Cement Co. Ltd. v. Shree Gopal Bajoria (C. R. No. 807 of 1990-31-7-1991) also the demand notice under Section 138 was served upon the accused at their Calcutta office demanding payment of the amount under the dishonoured cheque. In the circumstances, Monoj Kumar Mukherjee J. (as his Lordship then was) held that the illegal omission to comply with the demand took place in Calcutta, Here also the ratio of this decision is discernible that the failure to comply with the demand made under Section 138 takes place where the demand notice is served upon and received by the accused but not complied with. Going by the ratio of both the decisions discussed above, we find that in the present case, the demand notice was issued
to the petitioners/accused persons at their Burdwan address and they received the same there but failed to comply therewith. Therefore, the failure to comply with the demand notice occurred at Burdwan, The drawee bank of the dishonoured cheque in this case is also not situated within the territorial jurisdiction of the Sealdah Court. Therefore, none of the acts which constitute the offence in terms of the provisions of Section 138 of the Negotiable Instruments Act took place within the territorial jurisdiction of the Sealdah Court so that it could have jurisdiction under Section 178(d) of the Code of Criminal Procedure. The learned Magistrate, therefore, had no territorial jurisdiction to entertain the complaint or to proceed with the same. It may be noted here that over the dishonour of the cheques and matters associated therewith the complainant earlier lodged first information report against petitioner No. 2 under Section 420 of the Indian Penal Code at Burdwan Police Station. It, however, appears that the first information report under Section 420 of the Indian Penal Code was lodged on August 31, 1991, and the demand notice under Section 138 of the Negotiable Instruments Act was issued on September 6, 1991. Evidently, the cause of action for prosecution under Section 138 of the Negotiable Instruments Act, arose quite sometime after the lodging of the first information report under Section 420 of the Indian Penal Code.
7. As regards the third contention that the learned Magistrate was not justified in issuing process on materials which include, besides the statements on oath of the complainant and witnesses examined, xerox copies of documents which were annexed to the petition of complaint, it has been submitted that process can be issued under Section 204 of the Criminal Procedure Code, when the Magistrate taking cognizance is of the opinion that there is sufficient ground for proceeding and his opinion must be based on the evidence tendered at that stage. It is further argued that xerox copy of any document which might have been annexed to the petition of complaint, where the original was not produced nor was the document proved according to the provisions of the Evidence Act, cannot be taken into consideration by the learned Magistrate in forming the opinion about sufficiency of the ground for proceeding. I, however, find it difficult to accept this contention. It is not that all the documents on which the complainant may rely are required to be formally proved at the initial stage when the Magistrate takes cognizance or considers the sufficiency of the ground for proceeding. If the oral evidence adduced at that stage makes out a prima facie case about the existence of any document of which a xerox copy is produced, the Magistrate certainly can take that fact into consideration along with the evidence on record on the reasonable
assumption that the original will be produced and proved at the time of hearing, unless there is something appearing at that stage which renders it impossible or improbable that the document in question can be proved at the hearing. In this case, it does not appear that there was anything from which the learned Magistrate could think that it would not be possible for the complainant to prove the concerned document at the time of hearing. In the circumstances, I do not find any legal infirmity in the order of the learned Magistrate directing issuance of summons to accused Nos. 1 and 2 except the infirmity of territorial jurisdiction which I have already discussed.
8. Since, however, as I have held, the only infirmity appearing in the case relating to accused Nos. 1 and 2 is that the learned Magistrate had no territorial jurisdiction to take cognizance or to issue process, I, however, think that the ends of justice will be met if instead of directing the quashing of the proceeding in the court below the proceeding is transferred to a competent court having territorial jurisdiction in the matter inasmuch as lack of territorial jurisdiction is not such an infirmity which would make the proceeding void ab initio. Section 460(e) of the Criminal Procedure Code provides that if any Magistrate not empowered by law to take cognizance of an offence under Clause (a) or Clause (b) of subsection (1) of Section 190 erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his being not so empowered. Section 462 of the Criminal Procedure Code, provides that no finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in wrong sessions, division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice, In the present case, the exercise of power by the learned Magistrate though erroneous on the ground of lack of territorial jurisdiction, does not seem to have occasioned a failure of justice. In the circumstances, I am of the opinion that the ends of justice will be secured in this case if the proceeding is transferred from the court below to the court of the learned Sub-Divisional Judicial Magistrate, Burdwan, who has territorial jurisdiction in respect of the cause of action on the basis of which the petition of complaint has been filed.
9. In the circumstances, I direct that the proceeding in question being Complaint Case No. C-087 of 1991 (T.R. 262 of 1991) pending in the Court of the Fifth Judicial Magistrate, SeaTdah, under Section 138/141/142 of the
Negotiable Instruments Act, so far if relates to the accused petitioner Nos. 1 and 2, stands transferred to the court of the learned Sub-Divisional Judicial Magistrate, Burdwan, for disposal according to law. The learned Sub-Divisional Judicial Magistrate will proceed from that stage at which the case is now lying in the court of the Fifth Judicial Magistrate, Sealdah. The Fifth Judicial Magistrate, Sealdah, is directed to forthwith transmit the record of the proceeding to the Court of the Sub-Divisional Judicial Magistrate, Burdwan. The impugned proceeding so far it relates to petitioner No. 4, Debi Prosad Laha (accused No. 4), is, however, quashed. The office is directed to inform both the courts accordingly. Sealdah Court be informed by special messenger at the cost of the petitioner.
10. The revisional application under Section 482 of the Code of Criminal Procedure stands disposed of thus.