Delhi High Court
Transgeitz Enterprises & Another vs Ravi Kumar Zutshi on 2 June, 2010
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
11
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1937/2010 & Crl. M.A. No.7481-7482/2010
TRANSGEITZ ENTERPRISES & ANR ..... Petitioners
Through: Mr. Samdarshi Sanjay, Adv.
versus
RAVI KUMAR ZUTSHI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 02.06.2010
1. Petitioner by this petition filed on 17th May, 2010 has challenged the summoning order dated 28th August, 2004 on the ground of lack of territorial jurisdiction of the Courts in Delhi. The petitioner relies upon the decision of the Supreme Court in Harman Electronics (P) Limited & Anr. Vs. National Panasonic (India) Limited, 156 (2009) DLT 160 (SC) and a judgment of this Court in Surjeet Singh Vs. G.E. Capital Transport Financial Services & Anr., 167 (2010) DLT 449.
2. I am not inclined to exercise inherent power of High Court under Section 482 of the Code of Criminal Procedure, 1973 due to delay and latches on the part of the petitioner in approaching this Court. The summoning order was passed on 28th August, 2004. The petitioner had appeared before the trial court in 2004 and has submitted to the jurisdiction of the trial court and did not question and challenge lack of territorial jurisdiction. Proceedings before the trial court have continued.
3. Along with this petition, the petitioner has filed a copy of letter dated 26th November, 2003 written on behalf of M/s.Transgeitz Enterprises to the complainant. This letter is addressed to the complainant at his Delhi address. The letter reads:-
"Ref: TE/F-10/03 Dt: 26.11.03 To Shri Ravi K. Zutshi C-477 Yojna Vihar Delhi-110093.
Sir, Shri Pranob Dasgupta, partner transgietz enterprises is pleased to issue the enclosed cheque No.139408 dated 26.11.2003 for Rs.5,61,125.00 drawn on Corporation Bank, Ranchi towards repayment of the principal loan and interest accrued thereon upto 30th September, 2003.
We further request you to deposit the cheque only after the Ist week of Jan'2004.
Thanking you Yours faithfully For TRANSGIETZ ENTERPRISES Sd/-
(Manager)"
4. Thus, as per this letter the cheque, which has been dishonoured on presentation and is subject matter of the complaint, was sent by the petitioner No.1 to the respondent-complainant at Delhi for encashment.
5. The Supreme Court had examined the question of territorial jurisdiction in criminal cases in K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 and at page 517 has observed:
"11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under Section 177 of the Code "every offence shall ordinarily be enquired into and tried in a court within whose jurisdiction it was committed". The locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as the sole criterion to determine the place of offence. It must be remembered that offence under Section 138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act.
12. Even otherwise the rule that every offence shall be tried by a court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle. Section 177 itself has been framed by the legislature thoughtfully by using the precautionary word "ordinarily" to indicate that the rule is not invariable in all cases. Section 178 of the Code suggests that if there is uncertainty as to where, among different localities, the offence would have been committed the trial can be had in a court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon. It reads thus:
"179. Offence triable where act is done or consequence ensues.--When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be enquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued."
13. The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the courts to try the offence was sought to be determined.
14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The 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.
15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:
"178. (a)-(c) * * *
(d) where the offence consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas."
16. Thus it is clear, 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. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act."
6. In the case of Harman Electronics (supra) which has been followed in Surjeet Singh (supra) the question raised and answered was different as is apparent from the quote from the decision of the Supreme Court;-
"12. The complaint petition does not show that the cheque was presented at Delhi. It is absolutely silent in that regard. The facility for collection of the cheque admittedly was available at Chandigarh and the said facility was availed of. The certificate dated 24-6-2003, which was not produced before the learned court taking cognizance, even if taken into consideration does not show that the cheque was presented at the Delhi branch of Citibank. We, therefore, have no other option but to presume that the cheque was presented at Chandigarh. Indisputably, the dishonour of the cheque also took place at Chandigarh. The only question, therefore, which arises for consideration is that as to whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instruments Act."
(emphasis supplied)
7. In these circumstances, it cannot be said that the respondent-complainant has invoked and filed a criminal complaint in Delhi to deliberately and intentionally cause inconvenience and harass the petitioner who is a resident of Ranchi.
8. Learned counsel for the petitioner has submitted that the letter dated 26.11.03 is not written by petitioner No.2 but by his Manager and is disputed by the petitioner. It is not possible to accept this contention. Whether or not the Manager had any authority or not, is a disputed question of fact and the same has to be examined in the trial and not at this stage.
9. In view of the aforesaid position, the present petition is dismissed. It is clarified that the observations made in the present order are for the purpose of disposal of the present petition and will not be binding on the learned trial court.
SANJIV KHANNA, J.
JUNE 02, 2010 J/VKR