Delhi District Court
Manjunath V. Acharya vs . on 21 October, 2009
Manjunath V. Acharya Vs.
M/s Shreya Developwell Pvt. Ltd.
IN THE COURT OF SH. SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - III (EAST)
KARKARDOOMA COURTS : DELHI
Crl.R. No. 61/2009
In the Matter of :
Manjunath V. Acharya
S/o Sh. Veeracharya Acharya
R/o B205, Tulsi Gagan,
President Cooperative Housing Society,
Sector21, Kharghar,
Navi Mumbai410206 ...Revisionist
VERSUS
M/s Shreya Developwell Pvt. Ltd.
Through its Director
Sh. Manoj Kumar Sharma
A08, Swastya Vihar,
New Delhi110092 ...Respondent
O R D E R :
1. The present revision petition is directed against the impugned order of the Ld. Trial Court dated 11.6.2009 vide which the revisionist was summoned for the offence punishable U/s.138 Negotiable Instruments Act (hereinafter referred to as "the Act").
2. The brief facts giving rise to the present revision petition are Page 1 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
that the respondent herein filed a complaint case against the revisionist U/s.138 of the Act alleging inter alia that the respondent entered into an agreement with the revisionist dated 01.9.2008 vide which a previous agreement to sell was cancelled and it was agreed that the revisionist would pay a sum of Rs.41 lacs alongwith interest amounting to Rs.16,72,000/ to the respondent. Against the said dues, the revisionist issued two post dated cheques for Rs.20 lacs drawn on Oriental Bank of Commerce, Navi Mumbai bearing no. 717923 dated 26.3.2009 and another cheque towards the interest amount bearing no. 666154 dated 26.3.2009 for Rs.16,72,000/ drawn on the Bharat Cooperative Bank (Mumbai) Ltd., Chamboor Branch, Mumbai. The said cheques were presented for encashment by the respondent with his bankers i.e. Bank of Maharashtra, Mayur Vihar, PhaseI, Delhi, but were returned back unpaid because of insufficiency of funds with memo of the bank of revisionist dated 15.4.2009 of Oriental Bank of Commerce and another memo dated 02.4.2009 of Bharat Cooperative Bank (Mumbai) Ltd. Thereafter, the respondent issued a legal notice on 21.4.2009 demanding the cheque amount from the revisionist but despite receiving the said notice the revisionist failed to pay the cheque amount and hence, the complaint. The Ld. Trial Court after considering the evidence led at the pre Page 2 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
summoning stage summoned the revisionist for the offence punishable U/s.138 of the Act vide impugned order.
3. Feeling aggrieved by the said order, the revisionist, a resident of Mumbai, has preferred the present revision petition.
4. I have heard Sh. Rakesh Kansal Advocate Ld. Counsel for the revisionist and Sh. Sanjay Bansal Advocate alongwith Ms. Madhumeet Kapur Advocate for the respondent. I have also considered the trial court record summoned during the proceedings.
5. During the course of arguments, it was submitted by Ld. Counsel for the revisionist that the impugned order has been erroneously passed as the Ld. Trial Court had no territorial jurisdiction to try the present case. It was submitted that the entire transaction regarding the purchase of immovable property took place at Mumbai whereas the property was situated in District Raigarh, Maharashtra. It was further submitted that the revisionist is also a resident of Navi Mumbai and the cheques were received for payment at Mumbai and were also dishonoured there and, therefore, only on the strength of issuance of Page 3 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
notice from Delhi alone that Ld. Trial Court lacked jurisdiction to try the alleged offence. It was further submitted that there had been no service of the legal notice of demand upon the revisionist and on that ground as well, the revisionist should not have been summoned. Ld. Counsel relied upon various judgments of the Hon'ble Apex Court and the Hon'ble High Court in support of his contention.
6. On the contrary, it was submitted on behalf of the respondent that the complaint before the Ld. Trial Court was not filed only on the strength of legal notice which was admitted to have been issued from Delhi but also on the ground that the respondent is a permanent resident of Delhi having his bank account in Delhi and having presented the cheque for encashment at Delhi. It was further submitted that the legal notice was duly posted in the ordinary course of business through registered post and the copy of the AD postal slip has already been placed on record, though the registered covers were not received back. Further, judgments were relied upon by the Ld. Counsel for the respondent in support of their contentions.
7. In a recent judgment delivered by the Hon'ble Apex Court and Page 4 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
relied by both the parties i.e. Harman Electronics (P) Ltd. & Anr. Vs. National Panasonic (India) Ltd. I(2009) SLT 102, it was held that mere issuance of a notice from Delhi will not confer territorial jurisdictions on the courts in Delhi to entertain a complaint U/s.138 of the Act, as it would by itself not give rise to a cause of action. This view of the Hon'ble Apex Court was reiterated by the Hon'ble High Court of Delhi in ICICI Bank Ltd. Vs. Subhash Chand Bansal & Ors. 2009 (160) DLT 379. The Hon'ble Single Judge of the Hon'ble High Court of Delhi in this case directed that in all cases where cognizance has not been taken and where the Court lacks jurisdiction, the complaints shall be returned to the complainant. However, the Division Bench of the Hon'ble High Court of Delhi in a most recent judgment delivered in Delhi High Court Legal Services Committee Vs. Govt. of NCT of Delhi WP(C) 11911/2009 (circulated to all the Judicial Officers of Delhi) went ahead directing that the trial Courts shall return all the complaints whether cognizance has been taken or not, in which they had no territorial jurisdiction to entertain the complaints. The basis for deciding the territorial jurisdiction was the observation of the Hon'ble Apex Court in Harman Electronic's case (supra).
8. In the instant case, according to the original complaint before Page 5 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
the Ld. Trial Court and also as per the present revision and the documents annexed therewith, the agreement to sell was entered between the parties in respect of an agricultural land situated within the limits of District Raigarh, Maharashtra. The agreement of recession and cancellation against which the money was due to the respondent was executed at Navi Mumbai. It is also an admitted fact that the revisionist is a resident of Mumbai and the cheques which are the subject matter of the present revision were also issued from the Banks situated in Mumbai. However, it may be appreciated that this is not a civil suit where the jurisdiction of the Court is based upon the place where the suit property situated.
9. According to the provisions of Section 138 of the Act, the offence provided therein is complete only when the drawer of the cheque refuses or fails to pay the cheque amount despite service of notice of demand upon dishonourment of the cheques issued by him. Hence, the plea of the Ld. Counsel for the revisionist that the property for which the agreement was entered is situated in Maharashtra or the revisionist is a resident of Mumbai or the Banks on which the cheques were issued are situated in Mumbai have no bearance to the offence as alleged. It is also Page 6 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
to be noted with concern that the respondent is a permanent resident of Delhi and has bank account at Delhi. He presented the cheques in question for encashment at Delhi and received the information about their dishonourment at Delhi. It cannot be accepted from the drawee of a cheque to present the cheques at that branch from where they have been issued. Obviously, he would present the cheques only with his bankers. Accordingly, the respondent presented the cheque for encashment and they were dishonoured for insufficiency of funds in the accounts of the revisionist. The intimation about it was received by the respondent through his bankers at Delhi which was duly communicated to him and thereafter he issued the legal notice demanding the cheque amount from the revisionist dated 22.4.2009, through his counsel from Delhi.
10. In the light of above facts, it is thus very clear that the respondent did not invoke the territorial jurisdiction of the Ld. Trial Court only on the basis of notice from Delhi, as observed in Harman Electronic's case (supra). In that case, both the parties were carrying on business at Chandigarh, transactions were carried only from Chandigarh, cheques were issued and presented from Chandigarh but only notice was sent from Delhi. However, in the present case the transaction might have Page 7 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
taken place at Mumbai but the respondent is a permanent resident of Delhi, he presented the cheques at Delhi and received intimation about their dishonourment at Delhi and thus issued notice from Delhi. Therefore, the facts of the present case are different from that of Harman Electronic's case and the law laid down in that case have no applicability upon the facts of the present case and as such the said judgment or the subsequent judgments passed by the Hon'ble Delhi High Court referred to hereinabove i.e. ICICI Bank Ltd. and Delhi High Court Legal Services Committee (Supra) have also no applicability to the facts of the present case.
11. Hence, I disagree with the contention of the Ld. Counsel for the revisionist that the Ld. Trial Court had no territorial jurisdiction to entertain the complaint in question or to take cognizance of the offence alleged therein.
12. The other part of the argument advanced on the part of the revisionist was that no notice of demand was ever served upon the revisionist. It was further pointed out that even the address of the revisionist as mentioned on the notice is incorrect and, therefore, even Page 8 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
the presumption which is raised under Section 27 of the General Clauses Act and Section 114 of the Evidence Act cannot be made available to the respondent. It was submitted that no postal record was summoned or proved at the presummoning stage to show that the notice was actually delivered or refused to have been accepted by the revisionist. On the other hand, Ld. Counsel for the respondent contended that the presumption as aforesaid is in favour of the respondent as the notice was sent on the correct address and the postal records can be summoned during trial.
13. Ld. Counsel for the revisionist in support of its contention heavily relied upon a judgment delivered in HDFC Bank Ltd. Vs. Amit Kumar Singh 160 (2009) DLT 478. In that case, the entire law laid down by the Hon'ble Apex Court on this subject was discussed. Even the judgment in Harman Electronic's case was also discussed wherein it was held that "issuance of notice would not by itself give rise to a cause of action but communication of the notice would". It was held by the Hon'ble High Court of Delhi that a complainant in a case U/s.138 of the Act has, at the presummoning to satisfy the Ld. MM that the legal notice in terms of Section 138 (b) N.I. Act was in fact served on the drawer of the Page 9 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
dishonoured cheques. If some proof of delivery, or an internet generated or postal delivery report or a signed acknowledgment due card or the unserved cover with the postal endorsement is produced before the Ld. MM, it will be in the discretion of the Ld. MM to form an opinion if a presumption of service should be drawn.
14. On the other hand, Ld counsel for the respondent placed reliance of a judgment delivered by the Hon'ble Apex Court in C.C. Alava Haji Vs. Palepetty Muhammed & Anr. (2007) 6 SCC 555. In that case, it was held that there is no need to make averments in the complaint that the service of the notice was evaded by the accused or that the accused had a role to play in the return of notice unserved, as in view of the Section 27 of the General Clauses Act and Section 114 of the Evidence Act, once the notice is sent by registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected but complaint must contain basic facts regarding the mode and manner of issuance of notice to the drawer. It was further held that mandatory requirement of issue of notice in terms of Section 138 (b) stands complied with when the notice is sent in the said manner. However, the drawer can rebut the presumption of service of notice by Page 10 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
saying that he had no knowledge that the notice was brought to his address or the address mentioned on the cover was incorrect etc.
15. This judgment of the Hon'ble Apex Court in C.C. Alava Haji's case was not dealt with in detail by the Hon'ble Delhi High Court in HDFC Bank's case. However, it was only noted that from the plain reading, it transpires that there has to be some feedback in the form of the postal endorsement that the notice was refused or not taken delivery of or that the noticee has left.
16. In the present case in hand, the postal covers were not returned back at all. Therefore, the recourse has to be made to the law laid down in C.C. Alava Haji's case (Supra) and the presumption has to be raised U/s. 27 of the General Clauses Act r/w 114 Evidence Act, since, since postal receipt for the issuance of the said notice has been placed on record by the respondent alongwith the original complaint and that document cannot be said to have been manufactured. It is also to be worth noting that at presummoning stage, it is only a prima facie satisfaction of the court as to whether any offence has been made out or not which is not equivalent to proof of guilt of the accused. Complainant Page 11 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
has a right to prove his case at the trial where the entire evidence can be summoned and similarly the accused also has a right to rebut the presumption by crossexamining the witnesses or by leading his independent evidence for that purpose. A thorough inquiry is not contemplated by Section 202 of the Cr.P.C. as it would not only consume a lot of time of the already overburdened courts of the Magistrates but would also frustrate the very purpose of the complainant approaching the court. It may even lead to accused escaping punishment or evade the process of law.
17. Another part of the judgment in C.C. Alava Haji's case (Supra) did not come for consideration before the Hon'ble High Court of Delhi. It was further held in that case that if any drawer who claims that he did not received the notice sent by post, can, within 15 days of receipt of summons from Court in respect of the complaint U/s.138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of the receipt of the summons (by receiving a copy of complaint) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of the receipt of the summons from the Court alongwith the copy of the complaint U/s.138 of the Act, Page 12 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
cannot obviously contend that there was no proper service of notice as required U/s.138, by ignoring statutory presumption to the contrary U/s.27 of the General Clauses Act and Section 114 of the Evidence Act.
18. The above observation of the Hon'ble Apex Court clinches the issue. Even if it is presumed that the revisionist did not received the notice, he did receive the copy of the complaint alongwith the process fees receipt from the complainant on 18.7.2009, as averred by him in his revision, however, despite that he failed to tender any amount towards the cheque in question to the respondent till date, what to say of 15 days thereafter. Hence, now he cannot contend that he did not received any notice, as per the verdict of the Hon'ble Apex Court, quoted as above.
19. The other contention of the Ld. Counsel for the revisionist that the address of the revisionist was incorrectly mentioned on the notice, complaint, etc. is also of no use in view of the above contention. However, it may be noted that the name of the revisionist, his flat no. and other particulars were correctly mentioned except the fact that instead of 'President Cooperative House Society', the words "Resident Cooperative Housing Society" was mentioned, other particulars being correct Page 13 of 14 Manjunath V. Acharya Vs. M/s Shreya Developwell Pvt. Ltd.
including the name of the revisionist, father's name, Flat No. B205, Tulsi Gagan, Sector21, Kharghar, Navi Mumbai. It may be a typographical error but not such that the letter could not have reached the revisionist.
20. In view of the above discussion, I am of the considered view that the Ld. Trial Court rightly took the cognizance and summoned the revisionist U/s.138 of the Act and the impugned order of cognizance does not suffer from any illegality, impropriety or incorrectness and further that the Ld. Trial Court had the territorial jurisdiction to summon and try the revisionist for the offence U/s.138 of the Act. Accordingly, the impugned order dated 11.6.2009 is upheld and the present revision is dismissed. Revision file be consigned to Record Room and the trial court record be sent back alongwith copy of this order. Parties are directed to appear before Ld. Trial Court on 29.10.2009.
Announced in the Open Court On 21st day of October 2009 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) III KARKARDOOMA COURTS : DELHI Page 14 of 14