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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/-.