Delhi District Court
By This Order vs Unknown on 14 February, 2013
IN THE COURT OF CIVIL JUDGEI/METROPOLITAN MAGISTRATE, NEW DELHI
DISTRICT, DELHI
Presided By : Sh. Apoorv Sarvaria, DJS
CC. No: 451/12
Apsom Infotex Ltd.
Through its Authorised Representative
Sh. K L Kapoor
A53, Okhla, Industrial Area,
PhII, New Delhi20.
... Complainant
Versus
Mohan Somvanshi,
Proprietor
Near State Bank,
Nagar Manmad Road,
Post Taluka Rahate, Ahmednagar423107
... Accused
ORDER
1. By this order, the application filed by the accused for dismissal or return of complaint on the ground of lack of territorial jurisdiction of this court shall be disposed of.
2. It is stated in the application that the complainant company had conducted exhibition in the year 2006 i.e. Exposign Printing Exhibition of various print machines at Mumbai which was attended by the accused/applicant. The accused/applicant met the officials of the complainant at Mumbai and one of the officials briefed the accused. Thereafter, the accused/applicant placed an order for purchase of the machine of the complainant at Mumbai and got prepared the demand draft of Rs. 6 lacs in favour of the complainant having its address at CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 1 of 12 Mumbai and the demand draft was also payable at Mumbai. Thereafter, the complainant issued an invoice dated 06.11.2006 from its office at Mumbai i.e. D2, Gosrani Compound, Purna Village, Agra Road, Bhiwandi, Maharashtra. Even the installation report of the complainant company also mentions Mumbai address of the complainant company. Thereafter, certain replacements in the machine were made by the complainant from its office at Mumbai as the machine was not performing well. Hence, the entire transaction for the sale of goods in question is stated to have taken place in Maharashtra i.e. outside the territorial jurisdiction of this court. It is also stated in the application that the accused/applicant is also residing outside the territoral jurisdiction of this court.
3. It is further stated in the application that part of the payment of the product had been made in the form of demand draft of Rs. 6 lacs in Mumbai and the two cheques in question in the present complaint i.e. cheque no.056873 dated 20.04.2009 for the amount of Rs.50,000/ and the cheque no. 056874 dated 20.04.2009 for the amount of Rs. 50,000/ were also issued outside the territorial jurisdiction of this court and the drawer bank is situated at Rahata, Ahmednagar, Maharashtra. It is further stated in the application that mere fact that the complainant had deposited the aforesaid cheques in its bank in New Delhi does not create the territorial jurisdiction of this court as both the cheques were also dishonoured in Maharashtra. Moreover, mere issuance of legal notice from New Delhi also does not create the territorial jurisdiction of this court.
4. The complainant has opted not to file a written reply to the application. However, written arguments have been filed on behalf of the complainant wherein it is stated that this court has no power to dismiss or return the complaint in view of the decision of the Supreme Court in Adalat Prasad v. Rooplal Jindal 2004 (7) SCC
338. It is further stated that this court has territorial jurisdiction to entertain the CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 2 of 12 present complaint.
5. During arguments, Sh. Ankur Gupta, Ld. Advocate for the accused/applicant has submitted that this court can entertain the objections relating to territorial jurisdiction of the court even after the issuance of summons to accused. In support of this submission, he relied upon the decision in Rakesh Sharma v. State (NCT of Delhi) Crl. MC No. 753/2011 (decision dated 09.11.2012 High Court of Delhi) and Rajneesh Singhal v. M/s. Dig Vijay Seeds Pvt. Ltd. (Crl. MC 1688/2011, decided on 22.08.2012, High Court of Delhi). He further submitted that the facts of the present complaint case are such that the territorial jurisdiction of this court is not invoked and only the Ld. Judicial Magistrate of Ahmednagar, Maharashtra has territorial jurisdiction to try this complaint case. In support of this submission, he relied upon the decisions in Ramaswamy S. Iyengar v. The State (NCT of Delhi) & Anr. (Crl. MC No. 4140/2009) III (2011) BC 180 (Delhi), Rajneesh Singhal v. Dig Vijay Seeds Pvt. Ltd. (Crl. MC 1688/2011, decided on 22.08.2012, High Court of Delhi), Madan v. Videocon Industries Ltd. (Criminal Writ Petition No. 1074/2011, decision dated 29.11.2012, Bombay High Court), Rama Mukherjee v. Escorts Ltd. (Crl. MC No. 1715/2011, decided on 27.04.2012, High Court of Delhi), Som Sugandh Industries Ltd v. Union of India & Anr. 2010 (2) Crimes
646. He also relied upon the recent decision of High Court of Delhi in Gee Pee Foods Pvt. Ltd. v. Digvijay Singh (Crl. Rev. P. 65/2012, decision dated 15.01.2013, High Court of Delhi).
6. On the other hand, Sh. CB Tiwari, Ld. Advocate for the complainant has relied upon the decisions in M. Aggarwal Creation Pvt. Ltd. & Anr. v. Indiabulls Financial Services 2012(2) DCR 688 and Mahindra & Mahindra Finance Services Ltd. v. Nitin 2012 (1) DCR 34 in support of his submission that this court has territorial jurisdiction to try the present complaint case.
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7. This court has heard Sh. Ankur Gupta, Ld. Advocate for the complainant and Sh. CB Tiwari, Ld. Advocate for the accused/applicant and perused the record. Whether objections relating to territorial jurisdiction can be entertained at post summoning stage?
8. The contention on behalf of the complainant that this court cannot entertain the objections relating to territorial jurisdiction at this stage appears to be without merits as the fact of taking cognizance of offence is distinct from invoking jurisdiction for trying a particular offence ( See Trisuns Chemical Industry v. Rajesh Aggarwal (1999) 8 SCC 686). Also, the Supreme Court has held in Krishna Kumar v. Share Shoppe 2010 (2) Apex Court Judgments 293 (SC) that the objections relating to the territorial jurisdiction can be entertained by the trial court even after summoning and the accused should approach the trial court with a suitable application for this purpose. Moreover, in Rakesh Sharma v. State Crl. MC No. 753/2011 (decision dated 09.11.2012), the High Court of Delhi has held that once accused is summoned and an objection relating to territorial jurisdiction has been raised by the accused, the Magistrate should dispose of the application objecting to territorial jurisdiction on merits and cannnot dismiss it on the ground that criminal court cannot review its order. (See also Rajneesh Singhal v. M/s. Dig Vijay Seeds Pvt. Ltd. of High Court of Delhi.)
9. In GE Capital Transportation Financial Services Ltd v. Lakhmanbhai Govindbhai Karmur Creative Construction 2011 [2] JCC [NI] 105 (Delhi), the High Court of Delhi has observed, after relying on M/s Religare Finvest Ltd v. State 173 (2010) DLT 185, that in case the accused enters appearance after being summoned, he shall still have a right to take a plea with regard to the aspect of territorial jurisciction of the court by placing such material facts on record, as may be CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 4 of 12 considered necessary at that stage and the Magistrate would then be in a position to ascertain the truth of the assertions made by the complainant and could then arrive at a different conclusion.
10. Therefore, the contention of the complainant that this court cannot decide objections relating to territorial jurisdiction of this court cannot be accepted and this court can certainly entertain objections relating to the said aspect as the same has not been decided earlier by this court.
Whether this court has territorial jurisdiction to try the present criminal complaint?
11. Coming to the merits of the present objections, from the records, it is clear that the transactions between the parties has taken place in Maharashtra as can be seen from the document filed by the complainant Ex.CW1/3 being the invoice dated 06.11.2006 which mentions the address of the complainant at Bhiwandi, Maharashtra and the consignee's address is also mentioned at Rahata, Ahmednagar. The two cheques in question in the present complaint are also drawn on Union Bank of India, Rahata, Ahmednagar, Pin423107. Therefore, the drawer's bank is also outside the territorial jurisdiction of this court. The dishonour of both the cheques has also taken place at Rahata, Ahmednagar, i.e. outside New Delhi as the return memos dated 11.05.2009 Ex.CW1/5 and Ex.CW1/5A have also been issued by the Union Bank of India, Rahata Branch. Moreover, the complainant has also admitted in Para 4 of its complaint that the cheques were sent for encashment to the bank of the accused i.e. Union of Bank of India, Rahata, Ahmednagar and the same was dishonoured with remarks "insufficient funds" vide memo dated 11.05.2009 of Union of Bank of India, Rahata, Ahmednagar. Therefore, the fact that the dishonour of cheques has also taken place in Rahata, Ahmednagar is not disputed by the complainant. The complainant had presented these two cheques in CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 5 of 12 New Delhi in its bank i.e. Bank of Rajasthan, South Extension, New Delhi. A legal notice dated 25.05.2009 has also been dispatched from New Delhi as can been seen from the postal receipt of registered AD Ex. CW1/7 and UPC Ex.CW1/8.
12. Considering the above factual matrix, now this court has to decide whether the fact of presentation of cheques in New Delhi and the fact of dispatch of legal notice U/s. 138 of the NI Act from New Delhi would invoke the territorial jurisdiction of this court considering the facts that the cheques were issued in Maharashatra and the transactions have also taken place between the complainant's office in Maharashtra and the accused at Ahmednagar which is in Maharashatra and the cheques have been dishonoured admittedly at Rahata, Ahmednagar, Maharashatra.
13. The law relating to territorial jurisdiction of criminal court in complaints filed U/s. 138 of the NI Act has been dealt by the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 as under : (SCC @ p. 518 ) "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 CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 6 of 12 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."
14. In Harman Electronics Private Limited v. National Panasonic India Private Limited, (2009) 1 SCC 720, it was held that merely "giving" of notice in writing to the drawer would not invoke the territorial jurisdiction of the court from where notice was sent. It was further held in Harman Electronics as under: (SCC @ pp. 731732) "20. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A court derives a jurisdiction only when the cause of action arose within its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, the commission of an offence completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter that in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. [(2001) 6 SCC 463 : 2001 SCC (Cri) 1163 :
CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 7 of 12
AIR 2001 SC 676] emphasis has been laid on service of notice.
21. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower can not only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused visàvis the provisions of the Code of Criminal Procedure." (emphasis added)
15. In Shree Raj Travels & Tours Ltd v. Destination of the World (Subcontinent) Private Ltd, Crl. MC 1056/2011 (decision dated 21st September 2011, High Court of Delhi), it was observed as under:
"32. At a first blush reading of the decisions of the Supreme Court in Bhaskaran and Harman's cases (supra) it may strike to the reader that there is a conflict between the two decisions inasmuch as in Bhaskaran's case (supra) it was held that the expression 'giving of notice' occurring in proviso
(b) to Section 138 of the NI Act means 'sending of notice' whereas in Harman's case (supra) it was held that the said expression means 'receipt of notice'.
33. A careful reading of the two decisions shows that there is no conflict between the said decisions inasmuch as they have been rendered in different contexts. The decision in Bhaskaran's case (supra) was rendered in the context of starting point of limitation period of 15 days prescribed in proviso (b) to Section 138 of the NI Act and it was in that context i.e. the context of limitation that it was held by the Supreme Court that the expression giving of notice' occurring in proviso (b) to Section 138 of the NI Act means 'sending of notice'. The decision in Harman's case (supra) was rendered in the context of cause of action for filing a complaint under Section 138 NI Act within jurisdiction of a particular court and in that context it was held by the Supreme Court that the expression giving of notice' occurring in proviso (b) to Section CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 8 of 12 138 of the NI Act means 'receipt of notice'.
34. Now, same expression can have different meanings in different context as held by the Supreme Court in the decision reported as Malik Lal Majumdar v. Gouranga Chandra Dey (2004) 12 SCC 448 wherein it was observed that a word occurring in a statutory provision can have different meanings in different context within the same statute.
35. Thus, the inevitable conclusion would be that the 4 th act contemplated as an ingredient of the offence as highlighted in Bhaskaran's case i.e. ' giving notice in writing to the drawer of cheque' demanding payment of the cheque amount , for purposes of limitation would have a meaning as explained in Bhaskaran's case and for purposes of jurisdiction would have a meaning as explained in Ishar Alloy's case (supra) .
36. Before concluding I would be failing not to lodge a caveat. With electronic banking and facility payable at par of clearance provided by bankers and especially in metropolitan cities, where cheques are cleared by not being presented to the drawee bank but at nodal branches of the concerned banks, the subject matter of jurisdiction may have to be decided keeping in view that the drawee bank has created an agency where the cheque in question is transmitted for clearance and the situs where the clearance takes place would then arguably become the place where the cheque would be required to be treated as presented to 'the bank' i.e. the drawee bank. But, in such circumstances, properly constituted pleadings have to be found in a complaint and lodging the caveat, I leave it at that for the debate to be properly argued in an appropriate case with the necessary relevant pleadings.
37. I hold that on the pleadings in the complaint(s), no part of cause of action can be said to have accrued to the complainant at Delhi; that the notice demanding payment was posted from Delhi and that the cheque was deposited with the payee bank at Delhi would not constitute the acts contemplated as ingredients of an offence punishable under CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 9 of 12 Section 138 NI Act and thus I dispose of the petitions quashing the impugned order(s) dated 14.2.2011 and direct the learned ACMM to return the complaint(s) to the respondents for filing in a Court having territorial jurisdiction." (emphasis added)
16. In Dhananajay Johri v. Naveen Sehgal (Crl. MC 2172/2010, decison dated 24.11.2010), the High Court of Delhi has held, after relying upon the decision of the Supreme Court in Shri Ishar Alloy Steels v. Jaiswals Neco Ltd (2001) 3 SCC 609 that deposition of cheques by the complainant in its bank will not amount to presentation of cheques in " the bank" and it would not confer territorial jurisdiction of Courts at New Delhi merely because the presenting bank was in New Delhi. In Rajneesh Singhal v. M/s. Dig Vijay Seeds Pvt. Ltd. (Crl. MC 1688/2011, decided on 22.08.2012, the High Court of Delhi has held that where the cheque was drawn on Bank of Baroda, Krishna Nagar, Dehradun Branch and notice was also sent by the complainant to the accused at Dehradun, the entire cause of action had arisen at Dehradun and merely because the notice was sent from New Delhi and the cheque was presented by the complainant with its banker at Delhi will not be sufficient to confer the necessary territorial jurisdiction on the Delhi Courts to try and entertain the criminal complaint.
17. In Som Sugandh Industries Ltd v. Union of India 2010 (2) Crimes 646 , the High Court of Delhi has held that only because the legal notice was issued from Delhi would not confer jurisdiction at Courts in Delhi in a criminal complaint filed U/s. 138 of the NI Act. In Ramaswamy S. Iyengar v. The State (NCT of Delhi) Crl. MC No. 4140/2009: III (2003) BC 180 (Delhi), the cheques in question were issued at Mumbai, the cheques were sent for collection to the drawee bank at Mumbai and even the notice of demand U/s. 138 of the NI Act was served upon the accused at Mumbai Address. In these circumstances, the High Court of Delhi has held that the CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 10 of 12 entire cause of action for filing the complaint U/s. 138 of the NI Act has arisen at Maharashtra and Delhi courts have no jurisdiction to try the complaint and the Ld. Magistrate was directed to return the complaint to the complainant for filing in the court of appropriate jurisdiction.
18. In Rama Mukherjee v. Escorts Ltd. (Crl. MC No. 1715/2011, decided on 27.04.2012), the High Court of Delhi has again held that merely because the cheques were presented in Delhi or the demand notice was sent from Delhi, would not confer jurisdiction on Delhi courts to try the criminal complaint. (See also Madan v. Videocon Industries Ltd. Crl. Writ Petition No. 1074/2011, decision dated 29.11.2012, Bombay High Court).
19. In Hema Chaturvedi v. Sunint Enterprises Pvt Ltd (Criminal MC No. 213/2010, decided on 29.10.2010, High Court of Delhi.), it was held that the fact that the complainant has its registered office at New Delhi and cheques were deposited in New Delhi and legal notice was issued from New Delhi, would not vest jurisdiction in Courts at New Delhi.
20. From the above decisions of the Supreme Court as well as High Courts, this court is of the considered view that the fact of presentation of cheques in New Delhi and the legal demand notice being sent from New Delhi would not by itself confer jurisdiction of Courts at New Delhi. In cases where cheques are presented by the complainant in a bank outside the city of the bank where the cheques in question are drawn, the test to determine where the cause of action for filing the criminal complaint would arise would be the place where the dishonour of the cheques take place. In the present complaint, the two cheques in question have not been mentioned to be payable at par all over India. Moreover, it is admitted case of the complainant that these two cheques were dishonoured vide return memo issued by the drawer's bank at Rahata Branch, Maharashtra. Therefore, the fact of dishonour CC No. 451/12 Apsom Infotex Ltd v. Mohan Somvanshi . Page 11 of 12 of two cheques in question took place at Rahata, Ahmednagar, Maharashtra.
21. The decision relied upon by the complainant in M. Aggarwal Creation Pvt. Ltd. v.
Indiabulls Financial Services is not applicable in view of the decision of Hema Chaturvedi v. Sunint Enterprises, in which it is categorically held that mere fact that the retgistered office of the complainant company is in Delhi would not confer jurisdiction of Courts at Delhi. The decision in Mahindra & Mahindra Finance Services Ltd. v. Nitin as relied by the complainant is also not applicable in view of the decisions in Harman Electronics, Shree Raj Travels & Tours Ltd, Dhananajay Johri, Rajneesh Singhal, Som Sugandh Industries Ltd, Ramaswamy S. Iyengar, Rama Mukherjee and Hema Chaturvedi as already discussed above.
22. Hence, in view of the aforesaid analysis, this court is of the considered view that it has no territorial jurisdiction to entertain the present complaint. The cheques in question were issued outside the territorial jurisdiction of this court, the dishonour of cheques has also taken place outside the territorial jurisdiction of this court and the legal notice was issued to the accused located at Maharashtra which is outside the territorial jurisdiction of this court. The mere fact of presentation of the cheques in New Delhi and sending of legal notice from New Delhi would not, by itself, confer territorial jurisdiction of this court. Hence, the present criminal complaint is returned to the complainant to be presented before the concerned Ld. Chief Judicial Magistrate or the Magistrate of first class, as the case may be, having jurisdiction to try the offence committed U/s. 138 of the NI Act at Rahata, Ahmednagar, Maharashtra. File be consigned to record room.
Announced in the Open Court (Apoorv Sarvaria)
on 14 February, 2013
th
Civil JudgeI/MM, New Delhi District/New Delhi
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