Delhi District Court
M/S Luxmi Enterprises vs M/S Dabur India Ltd on 10 February, 2015
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0166672014
Criminal Revision Number : 198/2/14 dated 27.09.2014
C.C. No. : 3341/1
U/S: : 138 of NI Act
PS: : Connaught Place
M/s Luxmi Enterprises
Through its sole proprietor
Sh. Pankaj Kataria
SCF No. 68, Sector7 Huda Market,
Faridabad, Haryana121006. ..... Petitioner/Revisionist
versus
1. M/s Dabur India Ltd.
8/3, Asaf Ali Road,
New Delhi110002.
2 The State
Through NCT of Delhi
..... Respondents
CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 1 of 16
Revision received by Court : 27.09.14
Arguments concluded : 10.02.15
Date of order : 10.02.15
ORDER:
1 The present revision petition assails the impugned order dated 08.09.2014 of Sh. Puneet Pahwa, Ld. MM (NI Act), Patiala House Courts, New Delhi vide which the Ld. Trial court held that the matter had reached up to the stage of Section 145 (2) of Negotiable Instruments Act, 1881 (in short NI Act) and over ruled the contention of the accused / revisionist that the present matter was liable to be returned back to the complainant/respondent as per the mandate of Hon'ble Supreme Court of India in case Dashrath Rupsingh Rathod Vs State of Maharashtra & Anr. Crl. No. 2287 of 2009 as decided on 01.08.2014.
2 Ld. Counsel for the revisionist argued that the respondent filed a criminal complaint u/s 138 of NI Act bearing CC No. 3341/1 against the revisionist/accused on the basis of dishonour of cheque no. 801484 dated 05.07.2011 for a sum of Rs. 757940.77/ drawn on State Bank of Patiala, 133, Sector9, Faridabad, Haryana. He argued that on 03.07.2014, the notice u/s 251 CrPC, u/s 138 of NI Act was served upon accused/revisionist by the Ld. Trial court and thereafter the matter was fixed for 08.08.2014 for recording of CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 2 of 16 post summoning complainant evidence. He argued that in the meanwhile, the Hon'ble Supreme Court of India passed the above said judgment in Dashrath Rupsingh Rathod (supra) on 01.08.2014 due to which the present matter was to be returned to the complainant because the evidence after summoning of the accused had not commenced and this fact was brought to the knowledge of the Ld. Trial court, which is duly reflected in the order sheet dated 08.08.2014. He argued that thereafter the Ld. Trial court heard the arguments on the issue if the case was liable to be returned back to the complainant in view of the above said judgment, however, the Ld. Trial court by impugned order held that the matter had reached the stage of Section 145 (2) of NI Act and rejected the contentions of the Ld. Counsel for accused/revisionist. He also referred to the judgment of Hon'ble Supreme Court of India in the matter Shivgiri Associates & Ors. Vs Metso Mineral (India) Pvt. Ltd. Crl. Appeal No. 1771 of 2014 as decided on 20.08.2014 and held that because in the present matter also the post summoning evidence had not been recorded, therefore, Ld. Trial court should have returned the complaint to the complainant/respondent for refiling the same in the appropriate court at Faridabad, Haryana in terms of directions of Hon'ble Supreme Court of India in Dashrath Rupsing Rathod (Supra). He argued that the drawee bank i.e. the banker of the revisionist/accused is situated at CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 3 of 16 Faridabad and therefore, the courts at Delhi have no jurisdiction to try the complaint of the complainant / respondent u/s 138 NI Act. 3 During arguments, he also referred to Section 145 (2) of NI Act and argued that only if the post summoning evidence is recorded then only the proceedings shall be deemed to have gone to the stage of Section 145 (2) of NI Act and only then the courts at Delhi would be having the jurisdiction in the matter. He argued that in post summoning complainant evidence, the evidence by way of affidavit has to be tendered again by the complainant and only thereafter the stage of Section 145 (2) of NI Act shall be deemed to have been reached. He also referred to the judgment of Hon'ble High Court of Delhi in M/s Goyal M G Gases Pvt. Ltd Vs State & Ors. Crl. MC No. 4407/2014 and connected matters as decided on 16.12.2014. He thus argued that the impugned order dated 08.09.2014 of Ld. Trial court be set aside and the Ld. Trial court should be directed to return the complaint to the complainant/respondent for refiling the same in the appropriate court at Faridabad, Haryana.
4 Per contra, Ld. Counsel for respondent M/s Dabur (India) Ltd./complainant argued that the present complaint under revision had already reached the stage of Section 145 (2) of NI Act on 01.08.2014 i.e. date of judgment of Hon'ble Supreme Court of India in Dashrath Rupsing Rathod CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 4 of 16 (Supra) and also on 08.09.2014 i.e. the date of impugned order. He argued that as per the procedure pertaining to the cases u/s 138 NI Act, the plea of defence of the accused is recorded at the time of framing of notice u/s 251 CrPC. He further argued that at the time of framing of notice and recording of plea of defence, if the trial court finds the defence of the accused to be plausible, if the court deems fit, it may dispense with the requirement of filing of application u/s 145 (2) of NI Act and allow the accused to cross examine the witness of the complainant. He contended that in the present case, it was only after recording of the defence plea as on 03.07.2014 that the case was fixed for cross examination of the complainant witness for 08.08.2014. He argued that it is evident that the filing of application u/s 145 (2) of NI Act was duly dispensed with by the Ld. Trial court and the matter had already reached the stage of Section 145 (2) of NI Act. He contended that the judgment of Hon'ble Supreme Court of India in Shivgiri Associates & Ors. (supra) is not applicable in the present matter because in that matter after issuance of summons, the matter was stayed by the Hon'ble Punjab & Haryana High Court at Chandigarh and therefore the matter had not reached even the stage of framing of notice and what to say of Section 145 (2) of NI Act, whereas, in the present matter, the court proceedings had already crossed the stage of appearance of accused and had reached the stage of cross examination of the CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 5 of 16 complainant witness. He thus argued that there is no material irregularity, illegality or infirmity in the impugned order of the Ld. Trial court and prayed that the present revision petition be dismissed.
5 I have heard the arguments on revision petition and perused the record including trial court record.
6 The factual matrix of the case shows that the complainant/respondent filed a complaint u/s 138 NI Act for dishonour of cheque of Rs. 7577940.77/ against the accused/revisionist. As per the complainant, the accused/revisionist was appointed as one of the stockist by the complainant company for sale of various products manufactured by the complainant company in pursuance of the understanding between the complainant and the accused/revisionist. The complainant/respondent supplied various products to the revisionist from time to time pursuant to the orders placed by the revisionist. The complainant / respondent raised various invoices in respect of supplies made to the accused/revisionist. Towards the payment of the said invoices, the revisionist issued a cheque bearing No. 801484 dated 05.07.2011 in favour of the complainant company for a sum of Rs. 757940.77/ drawn on State Bank of Patiala, Faridabad, Haryana, however, on presentation, the said cheque was returned dishonoured by the drawee bank with the remarks 'Exceeds Arrangement'. As per the complaint, the cheque in question was CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 6 of 16 issued by the accused/revisionist in discharge of a lawful debt and thereafter the complainant issued a legal notice to the accused/revisionist within a stipulated period of 30 days calling him to pay the above said cheque amount, however, the payment was not made by the accused/revisionist. 7 The record of the trial court shows that the notice u/s 251 CrPC was framed on 03.07.2014 to which the accused pleaded not guilty and claimed trial and also raised his defence plea to the effect that the amount of Rs. 757940.77/ was not payable to the complainant, he had to only pay Rs. 68,000/ (approximately) to the complainant which he was ready to pay at any time, the cheque in question was given in blank, only signed by him to the complainant, all the particulars in the cheque had been filled by the complainant and he had not received any legal demand notice. The Ld. Trial court vide order dated 03.07.2014 itself held that from perusal of the above said defence plea of the accused/revisionist, the accused had raised plausible defence and fixed the case for 'CE' for 08.08.2014. On 08.08.2014, the Ld. Counsel for accused/revisionist submitted that in view of the judgment passed by the Hon'ble Supreme Court of India in Dashrath Rupsing Rathod (Supra), the said court had no jurisdiction to try the present case. The matter was thereafter adjourned for arguments/deciding the issue of jurisdiction for 25.08.2014. On 25.08.2014, the matter was adjourned for 03.09.2014 on the CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 7 of 16 request of Ld. Counsel for accused/revisionist to advance arguments on the issue if the case was still at the stage of Section 145 (2) of NI Act or not. On 03.09.2014, the arguments were heard on the issue if the case was still at the stage of Section 145 (2) of NI Act or not and thereafter, was fixed for orders on 08.09.2014. On 08.09.2014 i.e. vide impugned order, the Ld. Trial court came to the conclusion that as in the present case, the notice u/s 251 CrPC had already been framed and after finding the defence of the accused to be plausible, the case was straightway fixed for 'CE', therefore, the Ld. Trial court was of the opinion that the present case had reached the stage of Section 145 (2) of NI Act and had to be tried by that court. The Ld. Trial court also held that at the time of framing of notice and recording of defence plea, if the court deems it fit, after finding the defence of the accused to be plausible, it can dispense with the requirement of filing of application u/s 145 (2) of NI Act and allow the accused to cross examine the complainant witness. It was held that in the present case also, after recording of the defence plea, the case was fixed for CE, therefore, filing of application u/s 145 (2) of NI Act was dispensed with and hence it can be said that the matter had reached at the stage of Section 145 (2) of NI Act. Thus, by the impugned order, the Ld. Trial court declined to entertain the request of Ld. Counsel for accused/revisionist. 8 Section 251 CrPC provides that when the accused appears before the CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 8 of 16 Magistrate in a summons case, the Magistrate shall state to him the particulars of the offence of which he is accused and shall be asked whether he pleads guilty or has any defence to make. Section 252 and 253 CrPC provide for conviction of the accused on a plea of guilt made during the proceedings under Section 251 CrPC. Section 254 CrPC provides that where the Magistrate does not convict the accused under Sections 252 and 253 of the CrPC, he shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. He shall also hear the accused and take all such evidence as he may produce in his defence. Section 255 CrPC provides that after taking all such evidence as provided under Section 254 CrPC, he finds the accused not guilty, he shall record an order of acquittal or if he finds the accused guilty, he shall convict the accused. Thus from the scheme of Sections 251 to 255 CrPC, it is apparent that once notice under Section 251 CrPC has been framed and the accused pleads not guilty, the matter goes to the stage of recording of evidence under Section 254 CrPC. There is no other intermediate stage between framing of notice and recording of evidence.
9 As far as complaint under Section 138 of the NI Act is concerned, Section 143 of the said Act provides that all offences under the said Chapter are to be tried in accordance with the provisions of Sections 262 to 265 of CrPC, which CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 9 of 16 provide for summary trials. Section 145 (1) provides for reception of evidence on affidavit and 145 (2) provides an opportunity to the accused to move an application for crossexamination of the complainant or his witnesses. Even under such procedure, there is no intermediate stage between framing of notice under Section 251 CrPC and recording of evidence either under Section 145 (1) or (2) of the NI Act. Once notice under section 251 CrPC stood framed, a complaint under section 138 of the NI Act has reached the stage of recording of evidence.
10 The Hon'ble Supreme Court of India in the case of Dashrath Rupsing Rathod (Supra) has held in para 19 and 20 of the said judgment as under: "19. The interpretation of Section 138 of NI Act which commends itself to us is that the offence contemplated therein stands committed on the dishonour of the cheque, and accordingly the JMFC at the place where this occurs is ordinarily where the complaint must be filed, entertained and tried. The cognizance of the crime by the JMFC at that place however, can be taken only when the concomitants or constitutes contemplated by the Section concatenate with each other. We clarify that the place of the issuance or delivery of the statutory notice or where the Complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial jurisdiction of the Complaints even though noncompliance thereof will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 10 of 16 138 in particular and Chapter XVII in general of the NI Act. The vindication of this view is duly manifested by the decisions and conclusion arrived at by the High Courts even in the few cases that we shall decide by this judgment. We clarify 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 territorial jurisdiction is restricted 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.
20. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to Complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirely does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145 (2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place. To clarify, regardless to whether evidence has been led before the Magistrate at the presummoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 11 of 16 where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of complaint cases where proceedings have gone to the stage of Section 145 (2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.
(emphasis supplied) 11 The Hon'ble Supreme Court of India has thus held that the complaint cases where proceedings had gone to the stage of Section 145 (2) of NI Act or beyond shall continue in the same court where they are presently pending and all other complaint including those where the accused / revisionist have not been properly served had to be returned to the complainant for filing in the proper court.
The tenor of the above said judgment of the Hon'ble Supreme Court of India has to be construed to mean that the matters in which the accused had appeared and had reached the stage of recording of evidence were to be retained in the courts where they were pending. The same is amplified by the CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 12 of 16 fact that it was clarified that those cases where the accused was not properly served would not be retained irrespective of the fact that presummoning evidence had already been led. The submissions of the Ld. Counsel for revisionist to the effect that only after tendering again of evidence by way of affidavit in post summoning complainant evidence and only thereafter the stage of Section 145 (2) of NI Act shall be deemed to have been reached is nothing but hyper technical and the same if accepted would do injury to the directions of the Hon'ble Supreme Court of India. The purpose of Section 145 (2) of NI Act is that the court may and shall on the application of the prosecution or the accused has to summon and examine any person giving evidence on affidavit as to the facts contained therein. In the case, in hand, Ld. Trial court vide order dated 03.07.2014 i.e. the date on which the notice u/s 251 CrPC was served upon accused/respondent and after recording above noted plea of defence of accused, came to the opinion that the accused raised plausible defence and straightway fixed the matter for the complainant evidence. It thus seems that the Ld. Trial court after recording plausibility of the defence of the accused/revisionist came to the conclusion that in view of plausibility of defence even without filing of a formal application u/s 145 (2) of NI Act, the case could be straightway fixed for CE and in facts, fixed the case for complainant evidence and thereby dispensed with the filing of the CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 13 of 16 application u/s 145 (2) of NI Act. It thus seems that in the present case, the proceedings had even gone beyond the stage of Section 145 (2) of NI Act and thus was to be tried by the court where it was pending and there was no occasion before the Ld. Trial court to return it for filing in the proper court. The judgment of Hon'ble High Court of Delhi in case titled as M/s Goyal M G Gases Pvt. Ltd (supra), as relied upon by the Ld. Counsel for revisionist, is distinguishable on the facts of the present case as in that case, the moot question involved was as to whether Delhi Courts would have territorial jurisdiction to try the cases instituted u/s 138 of NI Act merely because the cheques in question were 'payable at par' at all branches of drawee bank being 'multicity cheques' and one of the branches of drawee bank was situated at Delhi. The Hon'ble High Court of Delhi in that case came to the conclusion that the presentation of cheque at nonhome branch of drawee bank being the cheque which was payable at par/multicity cheques will not change the character of drawee bank and would not confer territorial jurisdiction on Delhi courts. The other judgment of Hon'ble Supreme Court in case titled as Shivgiri Associates & Ors. (supra), as relied upon by Ld. Counsel for revisionist, is also distinguishable from the facts of the present case and shall not help revisionist because in that case after the summons were issued to the accused/appellant, the appellant approached the Hon'ble CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 14 of 16 High Court of Punjab & Haryna at Chandigarh and on 23.09.2013, the Hon'ble Supreme Court of India while issuing the notice ordered that proceedings before the Ld. Trial court shall remain stayed and hence it was evident that evidence, post summoning, had not been recorded. It was not clear from the said judgment as to whether the notice u/s 251 CrPC had been framed and if that case was fixed for CE after dispensing with the application u/s 145 (2) of NI Act in view of the plausible defence of accused. The said judgment being distinguishable on the facts of the case is also not applicable and shall not help the revisionist. In view of the above said discussion, it can be safely held that in the present matter, the proceedings had already gone beyond the stage of Section 145 (2) of NI Act and therefore in view of the directions of Hon'ble Supreme Court of India as contained in the case of Dashrath Rupsingh Rathod (supra), the present case has to be tried in the court where the said complaint case is pending i.e. before the Ld. Trial court and there is no occasion to return the same to the complainant for filing in the court of Faridabad, Haryana.
12 In these circumstances, I do not find any infirmity or illegality in the impugned order. Hence, present revision petition is dismissed being devoid of any merits.
13 TCR be sent back to the concerned court alongwith copy of the order. CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 15 of 16 14 Revision file be consigned to record room after completion of other necessary formalities in this regard.
Announced in the open
Court on 10.02.2015 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE04
NEW DELHI DISTRICT/ PATIALA
HOUSE COURTS/NEW DELHI
CR No. 198/2/14 CC No. 3341/1 PS Connaught Place M/s Luxmi Enterprises Vs M/s Dabur India Ltd. & Anr. Page 16 of 16