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Delhi District Court

Shri Kamal Jain vs Subodh Kumar Gupta on 13 January, 2012

IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
        JUDGE-02, EAST, KARKARDOOMA, DELHI

Criminal Appeal No.22/10
                                  Date of Institution:     05.06.2010
                                  Date of Arguments:       05.01.2012
                                  Date of Order:           13.01.2012
Shri Kamal Jain
                                                              Appellant
                                  Versus

Subodh Kumar Gupta
                                                           Respondent

                                  ORDER

This order will dispose of an appeal for setting aside the judgment dated 15.03.2011 and order on sentence dated 20.05.2010 passed by Sh. Pulastya Pramachala, Ld. M.M. (East), Karkardooma Courts, Delhi vide which the accused was sentenced to undergo simple imprisonment for a period of one year and to pay compensation to the complainant to the tune of Rs. 1,50,000/- within two months and in default of payment of amount of compensation it would be recoverable as per provisions of Section 421/431 Cr.P.C.

2. I have heard arguments of counsel for appellant C.A. No.22/10 Kamal Jain vs. Subodh Kr. Gupta Page 1 of 10 and counsel for respondent and gone through the file including trial court record.

3. The impugned order has been assailed on the grounds inter alia, that there are material contradictions in the statements of prosecution witnesses which have been ignored by the Ld. Trial Court; the complainant failed to produce any receipt issued by the appellant that he had ever given the alleged sum of Rs.1 lac; the Ld. Trial Court did not appreciate the fact that the whole story of the complaint was manipulated and failed to appreciate that the purchase order no.512 dated 05.05.2005 was cancelled on 20.08.2005; that in a purchase order the thumb impression was put on the same to give a real look to the manipulated document; that complainant in his notice dated 13.12.2005 never mentioned the ordered goods amount which clearly shows that the said purchase order was created after the notice given by the counsel for complainant. Ld. Trial Court has failed to take notice U/s 57 of the Evidence Act about the authenticity of the signatures and thumb impression put by the complainant in the purchase order. Ld. Trial Court ignored the affidavit and documents filed by the appellant in his defence.

Appellant has prayed for setting aside the impugned orders.

4. It has been argued on behalf of appellant that impugned judgment and order on sentence is liable for set aside as it was passed without jurisdiction. He relied on a case Harman Electronics (P) Ltd. & Anr. v. National Panasonic India Ltd., 156 (2009) DLT 160 (SC), the Apex Court observed that:

"24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefore, cannot be lost sight of. A court derives a jurisdiction only when a cause of action arose within his jurisdiction. The same can 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 offence. While issuance of a notice by the holder of 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, commission of an (sic. offence) completes.*** Jurisdiction of the court to try a criminal case is governed by the provisions of Criminal Procedure Code and not on common law principle."

5. Counsel for appellant further relied on a case Mahika Enterprises and Anr. v. State (NCT of Delhi) & Anr., 2010 (4) JCC (NI) 361. It was held by Delhi High Court C.A. No.22/10 Kamal Jain vs. Subodh Kr. Gupta Page 3 of 10 that:

"In K. Bhaskaran v. Shankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510, it had been held that the offence u/s 138 of the Act can be completed only with the concatenation of number of acts, that is (i) drawing of a cheque (ii) presentation of the cheque to the bank (iii) returning the cheque unpaid by the drawee bank (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount (v) failure of the drawer to make the payment within 15 days of the receipt of the notice. In case the five different acts were done in five different localities. Anyone of the court exercising jurisdiction in one of the five local areas can become the place of trial for the offence u/s 138 of the Act. In other words, the complainant can choose those court having jurisdiction over anyone of the local areas within the territorial limits of which anyone of those five acts was done."

6. Counsel for appellant further relied on a case, Hema Chaturvedi v. M/s Sunint Enterprises Pvt. Ltd., 2011 (1) JCC (NI) 1. It was held by Delhi High Court that :

"Merely, because respondent has its Registered Office at Delhi by itself would not vest, jurisdiction in courts, at Delhi. Reliance placed on K. Bhaskaran (supra) by the counsel for the respondent does not advance his case any further as the Registered Office of the complainant has not been identified as the place where the complaint can be filed. Place of notice has also been clarified in Harman Electronics case (supra).

7. On the other hand counsel for respondent relied on a case M/s Sukant Papers v. Om Prakash Jain & Anr., C.A. No.22/10 Kamal Jain vs. Subodh Kr. Gupta Page 4 of 10 2011 (1) JCC NI 30. It was held by Delhi High Court that:

"I, therefore, find no force in the arguments advanced by the counsel for appellant. I consider that the appellant in the present case had no defence at all. He did not take the defence at the time of accepting notice. He did not lead defence evidence after statement under Section 281 Cr.P.C. The defence taken in statement under Section 281 or 313 Cr.P.C. cannot be given a status of evidence. Any statement under Section 281 and 313 Cr.P.C. cannot be considered by the court as defence evidence. The stand taken under Section 281 or 313 Cr.P.C. has to be proved by a person by cogent evidence. The appeal is hereby dismissed with costs of Rs.35,000/- to be payable by the appellant to the respondent."

8. My attention goes to a case GE Capital Transportation Financial Services Ltd. v. Rahisuddin Khan, Crl. Rev. P. No.170/2010 & Crl. MA 4840/2010 of Delhi High Court dated 09.09.2011 wherein, Delhi High Court observed that:

"56. Thus, in order to give a brief review of what has been discussed above:-

1) The Magistrate taking cognizance of an offence must not necessarily have the territorial jurisdiction to try the case as well. Only when an enquiry or trial begins, does the jurisdictional aspect become relevant. In fact, after taking cognizance of the offence, the Magistrate may have to decide as to which court would have the jurisdiction to enquire into the case and such a situation can arise only during the post-cognizance stage.

2) At the pre-cognizance stage, the Magistrate has only to examine the averments, as set out in the C.A. No.22/10 Kamal Jain vs. Subodh Kr. Gupta Page 5 of 10 complaint and not more, for prima facie arriving at a decision as to whether some of the acts essential for completing an offence under Section 138 of the Act were done in the territorial jurisdiction of that Court.

3) There appears no ambiguity on the aspect of the right of the petitioner/complainant to file a complaint in a court having jurisdiction in the context of the five acts mentioned in the case of K.Bhaskaran (supra)."

4) Learned Metropolitan Magistrates are precluded from returning/dismissing the complaints in view of the order dated 03.11.2009 passed by the Supreme Court.

In the present case, having perused the complaint filed by the petitioner/complainant without ascertaining the correctness of the allegations made therein, prima facie it has to be held that a part of the cause of action has arisen in Delhi and the same is based solely on the acts done as set out in para (22) hereinabove.

57. In K. Bhaskaran (supra) referred to the above referred five components which constitute offence under Section 138 NI Act, if these 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 offence. In Shamshad Begum (supra) the Apex Court relied on its decision by applying Special Leave in K. Bhaskaran (supra) and referred five components enumerated in that decision, it was held that it is not necessary that all the five acts should have perpetuated in the same locality and was possible that each of these acts could have been done at five different localities though in concatenation of all these five acts is sine quo non for completion of the offence. Further, in 2008 in M/s Harman Electronics (supra) the Apex Court held that issuance of notice would not by itself give rise to the cause of action, but communication of the notice would give. The Apex Court was of the view that for constituting offence under Section 138 NI Act, the notice must be received by the C.A. No.22/10 Kamal Jain vs. Subodh Kr. Gupta Page 6 of 10 accused though, it is deemed to have been received in certain situation. Finally, in 2009 Delhi High Court Legal Services Committee (supra) the decision applies only to those cases where the complainant invokes jurisdiction of Delhi Courts solely on the ground that notice of demand was issued from Delhi despite the fact that it was served outside Delhi. The said judgment has been challenged in SLP NO.29044/2009 titled as Vinay Kumar Shailendra vs. Delhi High Court Legal Services Committee Anr. wherein the Supreme Court vide order dated 03.11.2009 has directed to maintain status quo until further order. Hence, it is crystal to say that, keeping in view the 'doctrine of precedent', the judgment delivered by the Division Bench of the Apex Court in K.Bhaskaran (supra) is still binding, as till date no larger Bench of the Apex Court has altered or reviewed the said judgment qua territorial jurisdiction."

9. In view of principles of law laid down in case GE Capital Transportation Financial Services Ltd. v. Rahisuddin Khan, (supra), the principles of law laid down in case of Harman Electronics (P) Ltd. & Anr. v. National Panasonic India Ltd., (supra), Hema Chaturvedi v. M/s Sunint Enterprises Pvt. Ltd., (supra), relied on by counsel for appellant will not provide any benefit to the appellant. Principles of law laid down in case Mahika Enterprises and Anr. v. State (NCT of Delhi) & Anr., (supra), instead of supporting the case of appellant, support the case of complainant/respondent because the legal notice Ex.CW1/C dated 13.12.2005 was served on the appellant C.A. No.22/10 Kamal Jain vs. Subodh Kr. Gupta Page 7 of 10 by a counsel Sh. Sanjeev Nirwani who has his address as 22, Mausam Vihar, Delhi-51 that is in the territorial jurisdiction of East District, Karkardooma Courts, Delhi. As per law laid down in K. Bhaskaran v. Shankaran Vaidhyan Balan & Anr., (supra) and GE Capital Transportation Financial Services Ltd. v. Rahisuddin Khan, (supra), the court in whose jurisdiction the notice in writing to the drawer of cheque demanding payment of cheque amount was issued has jurisdiction to entertain, try and decide the case. Accordingly, it is held that arguments of counsel for appellant that impugned judgment and order on sentence have no legal force, as these were passed without jurisdiction, are not tenable.

10. On perusal of trial court record I find that appellant has not disputed issuance of cheque. It was contended that cheque was issued to agent of the complainant/respondent named Akash for arrangement of the finance. The appellant has neither examined himself nor produced said Akash to prove his plea. Therefore, mere contention without production of evidence in this regard will not provide any benefit to the appellant/accused. My findings in this regard finds support C.A. No.22/10 Kamal Jain vs. Subodh Kr. Gupta Page 8 of 10 from a case reported as Ratna Constructions Company v. Hemendra Manubhai Chowksi And Anr., 2008 (2) DCR 219 wherein, it was held by Andhra Pradesh High Court that:

"Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability, thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused." [Emphasis supplied]

11. The principles of law laid down in a case M/s Sukant Papers v. Om Prakash Jain & Anr., (supra), relied on by counsel for respondent/complainant are fully applicable on the present case. In the absence of any evidence on behalf of the appellant/accused his contentions will not provide any benefit to him.

12. On perusal of impugned judgment, I find that Ld. M.M. has dealt with all the facts and evidence properly and had arrived on just and fair conclusion. I concur with the findings of Ld. M.M. in holding the accused/appellant guilty for the offence punishable u/s 138 of N.I. Act.

13. In view of the above reasons and discussion, I am of the view that there is no infirmity, illegality or inaccuracy in the impugned judgment and there is no merit in the appeal. The appeal is accordingly dismissed.

14. A copy of this order is given to appellant free of cost.

15. Appellant be taken in judicial custody to serve the sentence.

16. Trial Court Record be returned with copy of this order.

17. File be consigned to Record Room.

Announced in the Open Court on 13.01.2012 (DR. T. R. NAVAL) Additional Sessions Judge-02,East Karkardooma Courts, Delhi C.A. No.22/10 Kamal Jain vs. Subodh Kr. Gupta Page 10 of 10