Dis-honour of cheque is now a common phenomenon. Aggrieved persons have no any other option save and except to knock the door of court. Now here question arises where case has to be instituted, the place where cheque was issued or where it was presented for encash ? Now in this blog we will clear this issue and after reading this blog aggrieved persons will file their case in concern court only.
First of all we should know what is dis-honour of cheque:
A dishonored cheque is defined as a cheque that has been presented to a banking institution for payment and has been returned to the depositor due to insufficient funds. Dishonored checks are also referred to as bounced cheque or returned cheque.
Now question arises that if someone's cheque has been dis-honoured then what should he do ?
then its answer is that First of all a legal notice should be sent to the the person who has issued the cheques within a period of 30 days of dishonour of cheque.. And if within within 15 days after receiving notice payment has not been made then aggrieved person will have right to file a complaint in the concern court. Now there is huge dilemma that in which court case has to be filed.
In this regard honble Supreme Court In Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr. three Judge Bench of the Supreme Court finally held that a Complaint of Dis-honour of Cheque can be filed only to the Court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn. The Court clarified that the Complainant is statutorily bound to comply with Section 177 etc. of the CrPC and therefore the place or situs where the Section 138 Complaint is to be filed is not of his choosing. The Supreme Court in this case Overruled the two Judge Bench Judgment in K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 wherein it was held that “the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice”.” if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.” The Court accepted the view of Judgment passed in Harman Electronics Pvt.Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1 SCC 720. “It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would.”.
Now the trial of Dis-honour f Cheque is very fast and considering the number of cases and urgency in nature several state governments has comprises special court who deals only these types of cases.