Delhi District Court
M/S Global Hi-Tech Industries Ltd vs State on 8 April, 2013
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IN THE COURT OF MS. POONAM A. BAMBA
ADDITIONAL SESSIONS JUDGE-01
PATIALA HOUSE COURTS : NEW DELHI
Criminal Revision No. 21/13
1. M/s Global Hi-Tech Industries Ltd.
33, Atlanta, 3rd Floor,
Nariman Point
Mumbai - 40021
2. Mr. Narayan Parwal Tikrewal
506, Shimla House,
Golden Gate, Peddar Road,
Mumbai ... Petitioners
Versus
1. State
Through
Prosecution Branch
Patiala House Courts,
New Delhi
2. M/s South Eastern Carriers (P) Ltd.
C/o Container Corporation of India Ltd.
Compound-Godown-I,
Okhla Industrial Area, Phase-II,
New Delhi
Head Office :
SCO-42, Old Judicial Complex,
Civil Lines, Gurgaon. ... Respondents
Date of Institution Of the Revision : 06.02.2013
Date of Conclusion of Arguments
and Disposal : 08.04.2013
CR No. 21/13 Page No. 1 of 10
M/s Global Hi-Tech Ltd. v. State & Ors.
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Revision u/s 397 of the Code of Criminal Procedure
against the impugned order of Ld. MM
dated 19.12.2012
ORDER
08.04.2013 1.0 The revisionist has challenged the order of Ld. MM dated 19.12.2012 and has prayed that necessary directions be issued to the Ld. MM for returning the complaint case CC No. 779/11, titled as M/s. Sought Eastern Carriers Pvt. Ltd. Vs. M/s. Global Hi-Tech Industries Ltd. & Ors, to the complainant for filing the same in the court of competent jurisdiction. 2.0 Briefly stating, the facts as per the record/complaint are, that the respondent no. 2/complainant is a transporter; it was engaged by revisionist no. 1 for transportation of iron ore from Hospet Belt to the revisionist no. 1's plant at Bhujh (Kutch), Gujarat. Pursuant to the same, the respondent no. 2 transported the iron ore and submitted freight bills amounting to Rs.2,20,31,464/-; payment of Rs. 2,02,56,890/- was released in favour of the respondent no. 2; an amount of Rs.17,74,574/- remained due and payable; CR No. 21/13 Page No. 2 of 10 M/s Global Hi-Tech Ltd. v. State & Ors.
-3-towards that liability, two cheques bearing no. 206277, dated 15.01.2010 for Rs.10 lacs and cheque no. 206278, dated 16.01.2010 for Rs.7,74,574/-, drawn on HDFC Bank Ltd., Plot No. 1, Sector-8, Rabindranath Tagore Road, Gandhidham, Gujarat, were issued by Rohit Maskara - authorised signatory/Director of the revisionist no. 1. Said cheques on presentation by the respondent no. 2/ complainant with his bank, HDFC Bank, K. G. Marg, New Delhi, were returned unpaid for insufficient funds, vide return memos dated 19.01.2010; follow up with the revisionist for payment of dishonoured cheques remained futile; a demand notice dated 04.02.2010 through registered post and speed post was sent to the revisionist on 05.02.2010; no payment was made despite due service of the said demand notice, compelling the complainant/respondent no. 2 to file a complaint u/Ss 138/142 r/w Sec. 141 N.I. Act. After filing of evidence by the respondent, the Ld. MM took cognizance and summoned the revisionist/accused persons.
2.1 Vide order dated 28.04.2010, the notice was CR No. 21/13 Page No. 3 of 10 M/s Global Hi-Tech Ltd. v. State & Ors.
-4-framed against the accused persons. The matter was being adjourned for cross-examination of respondent no. 2/complainant's witnesses. On 19.12.2012, the revisionist filed an application u/Sec. 322 IPC to drop the proceedings against accused no. 4/Sunil Maskara and to mark the complaint to the Magistrate at Mumbai, having jurisdiction in the matter. The Ld. MM dismissed the revisionist's plea of lack of jurisdiction and prayer for return of the complaint vide order dated 19.12.2012. The said order is under challenge in this revision petition. 3.0 The revisionists have challenged the impugned order inter-alia, on the grounds that as per the complaint admittedly the revisionist is a permanent resident of Mumbai and is working for gain in Gujarat. The bank of the revisionist, on which the cheques in question were drawn, is situated in Gujarat; the alleged statutory notice was also sent to the revisionist's address at Mumbai; the transaction for which the complaint is filed was thus, outside the jurisdiction of Delhi; the Delhi Courts, therefore, have no jurisdiction and the complaint is liable to be returned. The revisionists have relied upon CR No. 21/13 Page No. 4 of 10 M/s Global Hi-Tech Ltd. v. State & Ors.
-5-judgments of Hon'ble High Court in Som Sugandh Industries Ltd. Vs. UOI, 2010 (1) JCC 105 (NI) and Mahik Enterprises Vs. State (NCT of Delhi) in Cri.M.C. Nos. 1988/2010, 1989/2010 and 2373/2010 in support of their contentions. 3.1 It is further submitted by the revisionists that they had filed an application for return of the complaint. But, the Ld. MM without appreciating that he had no jurisdiction as no part of cause of action had arisen in Delhi, dismissed the said prayer. The Ld. MM failed to consider that mere presenting of the cheque in Delhi and sending of legal notice from Delhi does not give rise to cause of action at Delhi.
4.0 On the other hand, Ld. counsel for the respondent no. 2 submitted that this petition is liable to be dismissed; the Ld. MM has rightly found that the Courts at Delhi have jurisdiction in the matter, in view of law laid down by Hon'ble Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr, (1999) 7 SCC 510 and by Hon'ble Delhi High Court in GE Capital Transportation Financial Services Ltd. Vs. Rahisuddin CR No. 21/13 Page No. 5 of 10 M/s Global Hi-Tech Ltd. v. State & Ors.
-6-Khan, 182 (2011) DLT 385. It is also submitted that the case law relied upon by the revisionists already stand overruled and clarification in this regard is recorded by Hon'ble High Court in GE Capital Transportation Financial Services Ltd.'s case (supra). 5.0 I have heard Ld. Counsel for both the sides and have perused the record carefully.
6.0 In view of the challenge to the jurisdiction of the Ld. Trial Court, let me refer to the judgment of Bench of the Hon'ble Supreme Court in K. Bhaskaran Vs. Shankaran Vaidhyan Balan & Anr, 1999 (7) SCC 510. While dealing with the territorial jurisdiction of the Courts in offence u/s 138 N. I. Act, the Hon'ble Court held that there are five components which constitute offence u/s 138 N. I. Act. The observations of the Hon'ble Supreme Court in this regard in paras no. 14 and 15 are reproduced hereunder for ready reference :
"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 CR No. 21/13 Page No. 6 of 10 M/s Global Hi-Tech Ltd. v. State & Ors.-7-
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 area, it may be enquired into or tried by a court having jurisdiction over any of such local areas."CR No. 21/13 Page No. 7 of 10
M/s Global Hi-Tech Ltd. v. State & Ors.
-8-6.1 Thus, as per the above, the court within the jurisdiction of which any of the above five components of the offence u/s 138 N. I. Act take place, would have jurisdiction in the matter. In the instant case, as per record, the cheques in question were drawn on HDFC Bank Ltd., Gandhi Nagar, Gujarat; the said cheques were payable at par at all the branches of HDFC in India; the cheques were deposited by the respondent no. 2 with its banker HDFC Bank, K.G. Marg, New Delhi; those cheques were returned unpaid by HDFC Bank, K. G. Marg, New Delhi on account of "insufficient funds". There was no occasions for HDFC, K. G. Marg, New Delhi for sending these cheques to Gujarat, the same being payable at par at all the branches. The respondent no. 2 then issued notice of demand from Delhi. Thus, prima facie part of cause of action arose in Delhi.
6.2 In view of the above, the judgments of Hon'ble High Court in Som Sugandh Industries Ltd.'s case (supra) and Mahik Enterprises's case (supra) relied upon by the revisionists are of no assistance to them. Moreso, in view of the further CR No. 21/13 Page No. 8 of 10 M/s Global Hi-Tech Ltd. v. State & Ors.
-9-observation made by Hon'ble Delhi High Court in G. E. Capital Transportation Finance Ltd. (supra). Relevant para 54 of the judgment is reproduced as under :
"54. Accordingly, the judgement of Supreme Court in K. Bhaskaran (supra) ought to be followed regardless of the contrary pronouncements made by the various benches of the High Court in the cases namely
(a) M/s Mahika Enterprises & Anr. Vs. State (NCT of Delhi & Anr.) judgments dated 01.10.2010 passed in Crl. M. C. 1988/2010, (b) V. S. Thakur Vs. State of NCT of Delhi & Anr. (Delhi) 2010 (1) JCC (NI) 40, (c) Som Sugandh Industries Ltd. & Anr. II (2010) DLT (Crl.) 475,
(d) Online IT Shoppe India Pvt. Ltd. & Ors. vs. State & Anr. 2010 (1) JCC (NI) 27. It may be pointed out that none of these judgments take into consideration the aforesaid Order dated 03.11.2009 passed by the Apex Court."
7.0 For the aforesaid reasons, I find no irregularity or illegality in the impugned order of the Ld. MM. The revision CR No. 21/13 Page No. 9 of 10 M/s Global Hi-Tech Ltd. v. State & Ors.
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petition is, accordingly, dismissed.
Trial Court Record be sent back along with the copy of this order.
Revision file be consigned to the Record Room. Announced in open Court (Poonam A. Bamba) Date : 08th April, 2012 ASJ-01/PHC/New Delhi CR No. 21/13 Page No. 10 of 10 M/s Global Hi-Tech Ltd. v. State & Ors.