Delhi District Court
Indo Rama Synthetics vs . Enkay Texofood Industries on 15 January, 2011
CC No.971/A/10
Indo Rama Synthetics Vs. Enkay Texofood Industries
IN THE COURT OF SH. VIPLAV DABAS,
MM02 (NORTH), DELHI
C.C.No.971/A/10
In the matter of :
M/s. INDO RAMA SYNTHETICS (I) LTD.
...COMPLAINANT
VERSUS
M/S.ENKAY TEXO FOOD INDUSTRIES LTD.
....ACCUSED
ORDER
Dated : 15.01.2011
1. By this order, this Court proposes to dispose of the application under Section 201 of the Code of Criminal Procedure, 1973 dated 16.11.2010 for return of complaint to the proper Court moved on behalf of the accused.
2. Brief facts necessary for the disposal of the present application are as under:
(a) The complainant is a company having its Corporate office at 4th floor, Dr. Gopaldas Bhawan, 28, Barakhamba Road, New Delhi and 1/9 CC No.971/A/10 Indo Rama Synthetics Vs. Enkay Texofood Industries is engaged in the business of manufacturing and supplying synthetic fibres. The accused no.1 is a company having its registered office at Sitaram Sadan, fourth floor, 282, Shamal Das Gandhi Marg, Mumbai-400002 and accused no.2 is the Managing Director of the accused no.1 company.
(b) The banker of the complainant where the cheques were deposited is Corporation Bank, CAPS Branch, N-72, First Floor, Bombay Life Building, Connaught Circus, Delhi.
(c) The accused has drawn the cheque on his banker Dena Bank, Zampa Bazar Branch, Surat, Gujarat.
(d) The accused put in his appearance on 22.01.2008 upon passing of summoning order dated 10.07.2007.
(e) The present application was filed on 16.11.2009 when the matter was fixed for leading evidence u/s.254 of the Code of Criminal Procedure, 1973 vide order dated 07.09.2009. It is mentioned in the present application that in view of the latest judgments of Hon'ble Delhi High Court in Delhi High Court Legal Service Committed Vs. Govt. of NCT of Delhi, this court has no jurisdiction to try the present case. It is further submitted that complainant has its office in Surat as well as in 2/9 CC No.971/A/10 Indo Rama Synthetics Vs. Enkay Texofood Industries Maharashtra and accused persons also belonged to Surat and their place of work is also at Surat and Maharashtra. No cause of action has arisen in Delhi as the Bankers of both the parties are also in Surat and no part of the transaction took place in Delhi. So it is prayed that the complaint be return to the complainant to be presented before a court of competent jurisdiction.
3. Arguments on behalf of both the parties heard. Record perused.
4. Discussion This court is considering only the aspect of the power of MMs to return the complaint suo motu without touching the factual matrix of the present case conferring jurisdiction on this court. There is no provision for return of complaint in Code of Criminal Procedure, 1973 except under Section 201 of the Code of Criminal Procedure, 1973 which applies at pre summoning stage and S322 of the Code of Criminal Procedure, 1973 which applies in an inter district territorial dispute within a State and not in metropolitan area or interstate transfer. 3/9
CC No.971/A/10 Indo Rama Synthetics Vs. Enkay Texofood Industries Admittedly, Delhi is a metropolitan area. As per 16 (3) of the Code of Criminal Procedure, 1973 the jurisdiction & powers of every Metropolitan Magistrate extends throughout the metropolitan area. So, MM has jurisdiction over whole of metropolitan area. Delhi is divided into districts only for the purpose of administrative convenience. Moreover, as per proviso to Section 7 (1) of the Code of Criminal Procedure, 1973 Delhi being metropolitan area is an independent unitary sessions division and district. So, as per the Code of Criminal Procedure, 1973 Delhi is one district as a whole and therefore S322 of the Code of Criminal Procedure, 1973 cannot come to the rescue of the accused which applies in cases of states divided in various districts and not to metropolitan areas.
5. Return of complaint can be considered at following stages:
(a). Return at pre-summoning stage:-Section 201 of the Code of Criminal Procedure, 1973 provides that the MM can return the complaint at any time before passing of the summoning order upon satisfaction that matter is beyond jurisdiction. In ICICI Vs Subhash Chand Bansal, 160 (2009) DLT 379 Hon'ble Delhi High Court was 4/9 CC No.971/A/10 Indo Rama Synthetics Vs. Enkay Texofood Industries pleased to uphold the order passed by Ld. MM directing return of the complaints u/s 138 Negotiable Instrument Act, 1881 on the very first date before summoning of the accused i.e. prior to the summoning of the accused. So there is no doubt as to the power of return at pre-
summoning stage for want of jurisdiction. But in the present case as cognizance and summoning order has already been passed so Section 201 of the Code of Criminal Procedure, 1973 is not applicable.
(b) Return at post summon stage : As per the Code of Criminal Procedure, 1973 MM is not empowered to return the complaints after summoning order is passed excepts u/s 322 of the Code of Criminal Procedure, 1973 which is applicable in inter district transfer within the same state only and Delhi being a metropolitan area S322 of the Code of Criminal Procedure, 1973 is not applicable.
(c) The question of return of complaint at post cognizance/ summoning stage can be further described in the light of the following three judgments.
(i) ICICI Vs Subhash Chand Bansal, 160 (2009) DLT 379:-In this case, following the mandate of Hon'ble Supreme Court as laid down in Adalat Prasad Vs. Roop Lal Jindal, (2004) 7 SCC 338 5/9 CC No.971/A/10 Indo Rama Synthetics Vs. Enkay Texofood Industries Hon'ble High Court was pleased to hold that after taking cognizance of offence u/s.138 Negotiable Instrument Act, 1881 it is not open to MMs to suo motu return the complaint as it would amount to review of order which is barred under Code of Criminal Procedure, 1973.
(ii) Delhi High Court Legal Services Committee VS. Govt. of NCT of Delhi WP (C) No.11911/2009 order dated 23.09.2009 :-In this case the Hon'ble Delhi High Court directed the MMs to return all complaints u/s 138 Negotiable Instruments Act, 1881 even after having taken cognizance and summoning of accused for want of territorial jurisdiction using its power under Article 226 of constitution. In pursuance to this order, vide notification no.1384/ DHC/Gaz./G-3/NIAct/2009 dated 25.09.2009 directions were given by Hon'ble High Court of Delhi to MMs for returning of complaints u/s.138 of Negotiable Instruments Act even at post cognizance/summoning stage which are beyond the territorial jurisdiction of Delhi. Thus legal position as to return of complaints u/s.138 Negotiable Instruments Act changed upon passing of this judgment and MMs got the power to return the complaints for 6/9 CC No.971/A/10 Indo Rama Synthetics Vs. Enkay Texofood Industries want of territorial jurisdiction even after passing of summoning order.
(iii)India Bulls Financial Services Ltd. Vs Delhi High Court Legal Services CC 20840/2009 dated 17.12.2009:- People aggrieved by order passed in Delhi High Court Legal Services Committee's case (supra) approached Hon'ble Supreme Court under Article 136 of Constitution challenging the verdict. Hon'ble Supreme Court was pleased to admit the petition and directed that the cases, where the petitioners are the complainants, may not be returned, as directed in the impugned judgment. The SLP is yet to be disposed of. Hon'ble Justice Vipin Sanghi of Delhi High Court has taken into account the factum of above said SLP in Crl Rev P 170/2010 vide order dated 19.04.2010 and has opined that the outcome of the SLP be awaited. The passing of aforesaid order by Hon'ble Supreme Court has the effect of staying of the return of complaints by Magistrates at post cognizance/ summoning stage as directed by Hon'ble High Court in Delhi High Court Legal Services Committee Vs. Govt. of NCT of Delhi and thus eclipsing the notification no.1384/DHC/Gaz/G-3/NI 7/9 CC No.971/A/10 Indo Rama Synthetics Vs. Enkay Texofood Industries Act/2009 dated 25.09.2009 issued to the District Courts within Delhi in pursuance to which complaints beyond the jurisdiction of Delhi were directed to be returned even at post cognizance/ summoning stage.
6. Further more u/s 462 of the Code of Criminal Procedure, 1973 it is provided that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the court of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
7. So, even if trial is conducted in wrong territory the same is protected u/s 462 of the Code of Criminal Procedure, 1973. In this case, the accused has not come out with any grounds which have occasioned the failure of justice till date. Moreover, the accused has been appearing since 2005 without raising any objection as to jurisdiction. The filing of this application at this stage after facing six years of trial 8/9 CC No.971/A/10 Indo Rama Synthetics Vs. Enkay Texofood Industries when the same is about to conclude has constrained this court to infer that the present application is aimed at delaying the proceedings and is not bonafide one.
8. In view of the aforesaid discussion and the fact that the application has been filed at post cognizance/summoning stage, this court is of the view that the present complaint cannot be returned by this court suo motu. Accordingly, the application u/s 201 of the Code of Criminal Procedure moved on behalf of the accused is hereby dismissed.
Announced in the open court on (VIPLAV DABAS)
today 15.01.2011 MM02(N)/Delhi
15.01.2011
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