For ready reference, the five acts said to be the components of the offence
punishable under Section 138 of the Negotiable Instruments Act, as mentioned by the Supreme Court in K. Bhaskaran's case (supra), may be reproduced here :
(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 om
the cheque demanding payment of the
(5) Failure of the drawer to make payment within 15 days of the receipt of the notice.
It may be recalled that it is by reference to Section 178(d) of the Code that it was mentioned that the offence could be tried by a court having jurisdiction over any of the local areas in which any of the aforesaid five acts would be committed. Undoubtedly, Clause (d) of Section 178 of the Code lays down that 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 of such local areas.
29 It is not difficult to observe that the acts mentioned at serial no.1 and at serial no.5 are the acts performed by the offender.
Interestingly, if the act at Serial no.2 is to be treated as 'depositing the cheque by the payee/complainant in an amount held by him
with his own banker' it would be the 'act' of the victim of the offence and not of the offender. The act mentioned at serial no.3 is
an act performed by the Drawee bank, who can be treated as the agent of the drawer i.e. the offender. Similarly, if the act at Sr.No.4 H
is to be considered as mere 'giving' of notice (without reference to the act of 'receiving' the same, it would also be the 'act of the victim of the offence and not of the offender. It needs serious thinking y
whether the clause (d) of Section 178 of the Code, when it speaks
acts done in different local area of which the offence in question consists ', speaks of, or contemplates, the acts of the victim or the complainant. In my opinion, in the scheme of the relevant
provisions, it cannot be doubted that the phrase 'several acts done in different local areas' refers to the acts of the offender and not of the victim or the complainant. An offence consists of acts or illegal
omissions of the offender and not of the victim (though effect on victim may be relevant in respect of some offences). It is, therefore, not possible to hold that Their Lordships of the Supreme Court of India contemplated the act no.2 viz :- Presentation of the cheque to the Bank as the lodging or depositing of the cheque by payee with his own account, which would only be the act of the victim. Similarly, the act no.4 contemplated by Their Lordships could not
have been mere giving of notice (which remains the act of victim) but must be understood as the 'giving of notice received by the ou
drawer of the cheque' (without which the act no.5 - which is the act of the offender - cannot take place and the offence would not be complete). Thus, the five 'acts' having been mentioned in the
context of section 178(d) of the Code, must be construed as referring to the 'acts' of the offender; and therefore, the
interpretation of the act no.2 and act no.4, as done in the aforesaid judgments must be held as the only correct interpretation of the
observations in K. Bhaskaran's case.
Bombay High Court
Bench: A.M. Thipsay
Sharda Polycolours Private Limited & ors ... Versus
The State of Maharashtra & Anr ..
PRONOUNCED ON: JUNE 14, 2013
Citation;2013 All M R (cri) 3256