Delhi District Court
District vs M/S. Mahek Enterprises on 31 July, 2013
IN THE COURT OF CIVIL JUDGEI/ METROPOLITAN MAGISTRATE, NEW DELHI
DISTRICT, NEW DELHI
Presided By : Sh. Apoorv Sarvaria, DJS
CC No. 212/13
Perfetti Van v Mahek Enterprises
Unique Case ID No. 02403R0059142013
Perfetti Van Melle India Pvt. Ltd.
nd
A17, 2 Floor, Moolchand,
Commercial Complex, Defence Colony,
New Delhi110024.
Corporate Office at
Global Business Park, TowarA,
st
1 Floor, MehrauliGurgaon Road,
Gurgaon122002 (Haryana)
.....Complainant
Versus
1. M/s. Mahek Enterprises
Gala No.2 & 4,
Gulmohar Housing Society
Madhuban Complex
At & Post Umberpada
SaphaleTehsil Palhar
DistrictThane401102
Maharashtra State.
2. Mr. Jignesh Iswarlal Vikmani
Proprietor/Partner of
M/s. Mahek Enterprises
Gala No.2 & 4,
Gulmohar Housing Society
Madhuban Complex
At & Post Umberpada
SaphaleTehsil Palhar
DistrictThane401102.
CS No. 120/13
Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 1 of 15
Maharashtra State.
3. Mrs. Rekha Vikmani
Proprietor/Partner of
M/s. Mahek Enterprises
Gala No.2 & 4,
Gulmohar Housing Society
Madhuban Complex
At & Post Umberpada
SaphaleTehsil Palhar
DistrictThane401102
Maharashtra State.
.....Accused
ORDER ON THE APPLICATION FILED BY THE ACCUSED UNDER SECTION
177 OF Cr.P.C FOR RETURN OF COMPLAINT
1. By this order, the application filed by the accused under Section 177, Cr PC for
return of complaint filed under Section 138 of the Negotiable Instruments Act ('NI
Act') shall be disposed of. In the application, it is stated that this court has no
territorial jurisdiction to try the present complaint as the only cause of action on
which the complainant is relying its case is that the cheques in question were
presented in New Delhi and the complainant's office is in New Delhi. However, on
identical facts, another complaint being CC No. 977/1/2009 was returned by the
th
Court of learned Metropolitan Magistrate, New Delhi vide order dated 14 October
2009. It is further stated in the application that the cause of action on the basis of
territorial jurisdiction of the court in that complaint had been invoked by the
complainant on the ground that legal notice under Section 138 of the NI act was
sent to the accused persons from New Delhi and complainant's banker was situated
at New Delhi.
2. It is, therefore, prayed in the application that the present complaint should be
CS No. 120/13
Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 2 of 15
returned to the learned Magistrate having competent territorial jurisdiction to
entertain the present complaint.
3. In reply to the application, it is stated that this court cannot judge the issue of
territorial jurisdiction as it would result in recalling the process issued against the
accused in the present case which cannot be done in view of the decision of the
Supreme Court in Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338 and
Subramanium Sethuraman v. State of Maharashtra (2004) 13 SCC 324. It is
further stated in the reply that that the complaint's banker is at Citibank NA in New
Delhi. Also, in terms of Clause 21 of the Distribution Agreement executed between
the complainant and the accused Ex. CW1/2, the payments were agreed to be
nd
made by the accused at Delhi. Also, the demand notice dated 2 July 2009 Ex.
CW1/11 was issued from Delhi calling upon the accused to make payment at Delhi.
Therefore, this court has terriotiral jurisdiction to entertain the present complaint.
4. As far as the issue that another criminal complaint bearing number 977/1/2009 was
returned by the learned Magistrate at New Delhi, it is stated in the reply that the said
order of return was passed at the presummoning stage and prior to the direction of
rd
the Supreme Court passed on 3 November 2009 in the case of Vinay Kumar
Shailendra v. Delhi High Court Legal Services Committee directing status quo to
be maintained. Also, the banker of the complainant was in Mumbai. It is further
stated in the reply that after the decision of Supreme Court in Harman Electronics
v. National Panasonic India Private Limited (2009) 1 SCC 720, the Delhi High
Court Legal Services Committee had filed a writ petition WP(C) No.11911 of 2009
under Article 226 of the Constitution of India seeking directions for return of criminal
complaints filed before any court in Delhi only on the basis that the demand notice
under Section 138 of the NI Act was issued by the complainant from Delhi. Vide
rd
order dated 23 September 2009, the said writ petition was disposed of with
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Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 3 of 15
directions to return all the complaints pending before the courts of Metropolitan
Magistrates in New Delhi for presentation in the court of competent jurisdiction in
which cognizance had been taken without actually having jurisdiction. The said
order of the High Court of Delhi was challenged by Vinay Kumar Shailendra before
the Supreme Court in SLP (C) No. 29044/2009 and the Apex Court has, vide order
rd
dated 3 November 2009, directed status quo to be maintained till further orders
and this order has not been modified till date. Thereafter, in GE Capital
Transportation v. Rahisuddin Khan 182 (2011) DLT 385, the Delhi High Court has
also laid down the law relying upon K Bhaskaran and ignoring the law of Harman
Electronics as K Bhaskaran has not been overruled by a larger bench of the
Supreme Court.
5. This court has heard Sh. Aseem Mehrotra, learned Advocate for the
applicant/accused and Shri Angad Verma, learned Advocate for the complainant
and perused the record. In support of his submissions, learned Advocate for the
complainant has relied upon the decisions in GE Capital Transportation v.
Rahisuddin Khan 182 (2011) DLT 385 , K Bhaskaran v. Sankaran Vaidhyan
Balan (1999) 7 SCC 510, Subramanium Sethuraman v. State of Maharashtra
(2004) 13 SCC 324 and Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338 and
rd
also the order dated 3 November 2009 of SLP number 15974/2009 wherein the
status quo was ordered to by the Hon'ble Supreme Court.
Findings
Whether objections relating to territorial jurisdiction can be entertained at
post summoning stage?
6. At the outset, this court would first deal with the objection raised by the complainant
that this court cannot adjudicate on the issue of territorial jurisdiction after the
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summoning order has been passed . 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.)
7. 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
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.
8. Therefore, the contention of the complainant that this court cannot decide
objections relating to territorial jurisdiction of this court cannot be accepted and this
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Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 5 of 15
court can certainly entertain objections relating to the said aspect as the same has
not been decided earlier by this court.
9. Even otherwise, in view of the specific direction passed by the High Court of Delhi
rd
in the present complaint vide order dated 23 April 2013 (Crl MC 1592 of 2013)
directing the trial court to decide the issue of terriotiral jurisdiction at the first
instance, the preliminary objection raised on behalf of the complainant is not
maintainable.
Whether this court has territorial jurisdiction to try the present criminal
complaint?
10. Having decided that this court can deal with the issue of territorial jurisdiction even
after the summoning of the accused, it would now decide the issue on merits.
11. The brief facts of the present complaint, in a nutshell, are that the complainant has
filed the present complaint in respect of 7 cheques: bearing number 886135 dated
th th
10 February 2009 for Rs. 2,77,640/, bearing number 886136 dated 18 February
st
2009 for Rs. 2,06,980/, bearing number 886137 dated 21 February 2009 for Rs.
th
1,29,898/, bearing number 886138 dated 26 February 2009 for Rs. 82,298/,
rd
bearing number 886140 dated 3 March 2009 for Rs. 2,06,980/, bearing number
th
886792 dated 5 March 2009 for Rs. 2,13,026/ and bearing number 886793 dated
13th March 2009 for Rs. 2,89,634/, all drawn on the Bank of Maharashtra, Branch
Manor, District Thane, - 401403 issued on behalf of the accused M/s Mahek
Enterprises in favour of the complainant. From the material on record, it can be
seen that the return memos Ex. CW1/9 (Colly) have been issued by the Bank of
Maharashtra from its branch at Manor, District Thane, Maharashtra - 401403.
Therefore, the cheques in question have been dishonoured at Maharashtra in the
concerned branch of the bank of Maharashtra. The return advice Ex. CW1/10 are
CS No. 120/13
Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 6 of 15
nd
admittedly issued by Citibank, Delhi. The legal notice dated the 2 July 2009 Ex.
CW1/11 has been addressed to the address of the accused at District Thane,
Maharashtra and it has been issued from New Delhi as can be seen from the postal
receipts Ex. CW 1/12.
12. In para 3 of the complaint, the complainant has averred that the accused had issued
the cheques in question drawn on Bank of Maharashtra, Shivajinagar, Pune in
favour of the complainant. Therefore, the complaint has not specifically averred
about the place where the cheques were handed over/delivered to the complainant.
Merely because Clause 21 of the distribution agreement Ex. CW1/C provides that
place of payment for all goods sold is Delhi does not go to prove that the cheques
were handed over in Delhi.
13. As admittedly the cheques have been drawn in Maharashtra and also have been
dishonoured at Maharashtra i.e. outside the territorial jurisdiction of this court, the
only point that is left to be decided is whether this court can invoke its territorial
jurisdiction on the ground that the complainant had presented the cheques at New
Delhi and the fact that the legal notice was issued from New Delhi.
14. 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
CS No. 120/13
Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 7 of 15
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 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."
CS No. 120/13
Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 8 of 15
15. 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 :
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
CS No. 120/13
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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)
16. 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
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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
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.
th act
35. Thus, the inevitable conclusion would be that the 4
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 CS No. 120/13 Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 11 of 15 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 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)
17. In Dhananajay Johri v. Naveen Sehgal (Crl. MC 2172/2010, decison dated CS No. 120/13 Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 12 of 15 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.
18. 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 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.
19. In Rama Mukherjee v. Escorts Ltd. (Crl. MC No. 1715/2011, decided on CS No. 120/13 Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 13 of 15 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).
20. 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.
21. 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 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 cheques were dishonoured vide return memo issued by the drawer's bank at District Thane, Maharashtra. Therefore, the fact of dishonour of the cheques in question took place at District Thane, Maharashtra.
22. The decisions relied upon by the complainant are 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. CS No. 120/13 Perfetti Van Melle Pvt. Ltd. v. Mahek Enterprise & Anr. Page 14 of 15
23. 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 District Thane, Maharashtra. The complaint complete in all detail with all the original documents be returned to the complainant after necessary endorsement to be filed in the appropriate court. Photocopy of the complete documents be kept on record. File be consigned to record room. Order be uploaded to www.delhidistrictcourts.nic.in.
Announced in the Open Court (Apoorv Sarvaria)
on 31 July, 2013
st
Civil JudgeI/MM, New Delhi District
New Delhi
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