Delhi District Court
Ms. R. Geetha Devi & Ors vs . M/S Schenker India Pvt. on 19 December, 2013
Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
1. Ms. R. Geetha Devi W/o R. Raju Singh
R/o 478 Babu Nagar Extention,
4A, Laxmi Industrial Area,
Gumti Pali, Rajasthan
2. Mr. R Raju Singh
R/o 478 Babu Nagar Extention,
4A, Laxmi Industrial Area,
Gumti Pali, Rajasthan
3. M/S Geetha Agro Product
R/o 478 Babu Nagar Extention,
4A, Laxmi Industrial Area,
Gumti Pali, Rajasthan .
...Petitioners
VERSUS
1. M/S Schenker India Private Limited
having its registered office at 9394,
Kapashera , New Delhi
Regional office at 12th floor ,
DLF building No.8 C DLF Cbyer City
PhaseII, Gurgaon
CR No.134/13 -:1:- 19.12.2013
Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13
2. State of NCT of Delhi. ........Respondents
CR No. 134/13
Date of Institution: 03.09.2013
Reserved for orders on: 10.12.2013
Order announced on: 19.12.2013
ORDER
1. Vide this order, I shall dispose of the revision petition preferred filed by the petitioner against the impugned order dt. 06.07.2013.
2. Stating briefly, it is alleged that petitioner no. 1 and Petitioner no. 2 are the partners of petitioner no. 3 namely M/S Geetha Agro Product having its office at Jodhpur, Rajasthan and respondent no.1 filed a complaint u/s 138 of NI Act against the petitioners for the bouncing of the cheque and the ld. trial judge was pleased to issue summon to the petitioners despite the fact that Delhi court has no territorial jurisdiction to try the present complaint. It is further stated that as per the case of the complainant/ respondent , cheque no. 113535 dated 09.04.12 for Rs.2 lacs drawn on HSBC bank having its branch at C 43 A (2) PWD Colony, Jodhpur , Rajasthan and the said cheque was presented by the complainant in Deusche bank, Delhi for clearance, as no branch of Deshce CR No.134/13 -:2:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13bank is in Jodhpur and it works through IDBI Bank. It is further alleged that the drawee bank as well as drawer bank are situated within territorial jurisdiction of Jodhpur, Rajasthan, therefore, court in Delhi has no territorial jurisdiction to entertain this complaint as none of the five ingredients namely drawing of the cheque, presentation of the cheque , return of the cheque memo, issuance of notice and non payment of cheque amount within the period of 15 days have been taken place in Delhi as such the trial court has no jurisdiction to entertain the complaint, therefore, impugned order is deserved to be set aside.
3. It is further contended that the demand notice u/s 138 NI Act was issued by the complainant / respondent from Gurgaon therefore, no cause of action has taken place in Delhi and the petitioners had approached Hon'ble High Court of Delhi for quashing the summoning order but the said petition was dismissed with liberty to the applicant/ petitioner to take all the plea by moving an appropriate application before the concerned court or to the appellate court. It is further contended that in terms of the said liberty, the petitioner filed an application dt. 29.4.13 before the concerned court for setting aside the summoning order but the ld. trial court dismissed the said application of the petitioner by relying on the Hon'ble CR No.134/13 -:3:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13Supreme Court judgment Adalat Prasad Vs. Roop Lal Jindal & Ors where it is held by Hon'ble Supreme Court that the trial court has no power to recall / review its order. It is further contended that the ld. trial court has no territorial jurisdiction to entertain the complaint as no part of cause of action accrued in Delhi.
4. It is further contended that the ld. trial court has not appreciated the fact that the territorial jurisdiction to entertain the complaint u/s 138 NI Act is to be decided on the point where the drawer bank is situated and the collecting bank is obliged to present the cheque in drawer bank in order to attract criminal liability of drawer u/s 138 NI Act. It is further contended that the territorial jurisdiction vest in the court where the drawee's bank is situated. In this regard, the petitioner has relied upon ICICI Bank Ltd. Vs. Subhash Chander Bansal & Ors 160 (2009)DLT379. It is further contended that as per averments contained in the complaint as well as in the pre summoning evidence, it is crystal clear none of the part of cause of action has taken place within Delhi so courts at Delhi has no territorial jurisdiction to entertain this complaint hence, the same deserved to be quashed. In this regard, he has relied upon Shri Ishar Alloy Steels Ltd vs Jayaswals Neco Ltd (2001) 3 SCC 609, Harman Electronics Pvt. Ltd vs National CR No.134/13 -:4:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13Panasonic India Pvt. Ltd. (2009) 1 SCC 720, K.Bhaskaran vs. Sankaran Vaidhyan Balan (1999) 7 SCC 510, Dalmia Cement Bharat Ltd vs Galaxy Traders and Investment (2001) 6 SCC 463, Gee Pee Foods Pvt. Ltd. Vs Digvijay Singh Crl. Revision 65/2012, Rajiv Aggarwal vs State Cri. Misc. No. 654/2011 and Times Business Solutions Ltd. Vs Debayani Bagchi in Crl. Misc. No. 280/10 passed by Delhi High Court.
5. On the other hand, ld. counsel for the respondent has contended that the cheque in question was presented in Delhi with the banker of the respondent namely Daustche bank and the Daustche bank works through its correspondent bank IDBI Bank, Jodhpur since Daustche bank does not have its branches at Jodhpur, for clearance of the cheque in question in the name of the respondent and as such correpondent bank of Daustche bank namely IDBI bank sent the cheque in question to the drawer's bank at Jodhpur which was dishonoured and such cheuqe return memo collected by IDBI bank was sent to Daustche bank in Delhi i.e bank of the complainant. The said cheque was dishonoured by the drawee bank and the cheque return memo was sent to the Daustche bank and part of cause of action has arisen within the territorial jurisdiction of Delhi and the court at Delhi is having territorial jurisdiction to try the present complaint. In this regard, he has relied upon Nishant CR No.134/13 -:5:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13Aggarwal Vs. Kailash Kumar Sharma 2013 (7) SCALE 753.
6. I have heard ld. counsel for the parties and perused the record with their assistance.
7. The sole question which is in controversy in the present case is as to what should be the place of filing complaint in respect of matters u/s 138 NI ACt. As per settled provisions of law, offence u/s 138 Ni Act has fiive components namely (1) drawing of cheque, (2) presentation of cheque (3) returning of the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and finally (5) failure of the drawer to make payment within 15 days of the receipt of the notice. The said ratio of law is laid down in K.Bhaskaran (supra).
8. Before proceeding further, I would like to site the latest provision of law regarding territorial jurisdiction under section 138 NI Act as laid down by Superior Courts. It is relevant to note here that Hon'ble High Court of Delhi in Cephem Milk Specialties vs Nutri Chem & Ors 2013 X AD (Delhi) 1 observed as under:
4. The law with respect to the CR No.134/13 -:6:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.CR No. 134/13
territorial jurisdiction of the court under section 138 of the Negotiable Instruments Act has been set at rest by the Supreme Court in Nishant Aggarwal vs Kailash Kumar Sharma, 2013(7) SCALE 753 in which the Supreme Court, after considering Shri Ishar Alloy Steels Ltd. (supra) and Harman Electronics Private Limited (supra), held that the court where the cheque is deposited for collection, has jurisdiction to try the accused under section 138 of Negotiable Instruments Act in terms of the principles laid down in K.Bhaskaran vs. Sankaran Vaidhyan Balan, 1999 VIII AD (SC) 417=(1999) 7 SCC 510.
The Supreme Court held that the issue of territorial jurisdiction of the Courts did not even arise for consideration in Shri Ishar Alloy Steels Ltd. Vs Jayaswal Neco Ltd.
CR No.134/13 -:7:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13(2001) 3 SCC 609, and therefore it does not affect the ratio in K. Bhaskaran (supra). The Supreme Court further observed that in Harman Electronics Private Limited vs. National Panasonic India Private Ltd, (2009) 1 SCC 720, the court held that a notice of dishonor under section 138 of Negotiable Instruments Act alone would not confer the jurisdiction to try the accused at the place of issuance of he notice.
However, the Supreme Court re affirmed the jurisdiction of the court where the cheque is presented for collection in terms of K.Bhaskaran (supra).
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13. As observed earlier, we must note that in K. Bhaskaran (supra), this court has held that section 178 of the CR No.134/13 -:8:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13Code has widened the scope of jurisdiction of a criminal court and section 179 of the Code has stretched it to still a wider horizon. Further, for the sake of repetition, we reiterate that the judgment in Ishar Alloy (supra) does not affect the ratio in K. Bhaskaran (supra) which provides jurisdiction at the place of residence of the payer and the payee. We are satisfied that in the facts and circumstances and even on merits, the High Court rightly refused to exercise its extraordinary jurisdiction under section 482 of the Code and dismissed the petition filed by the appellant/accused.
14. In the light of the above discussion, we hold that he ratio laid down in K.Bhaskaran (supra) squarely applies to the case on hand. The said CR No.134/13 -:9:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13principle was correctly applied by the learned Sessions Judge as well as the High Court. Consequently, the appeal fails and the same is dismissed.
9. It may be noted here that Hon'ble Supreme Court in Devendra Kishanlal Dagalia vs Dwarkesh Diamonds Pvt. Ltd and Ors. 2013 XII AD (S.C) 45 has observed as under:
17. The question concerning the jurisdiction of Magistrate to issue summons fell for consideration before this court in M/s. Escorts Limited vs. Rama Mukherjee (Criminal Appeal No. 1457 of 2013), 2013 (11) Scale 487. In the said case the court noticed the earlier decision in K. Bhaskaran vs. Shankaran Vaidhyam Balan & Anr., (1990 7 SCC
510. In the light of the language used in section 138 of the Act, the court found five components in section 138 CR No.134/13 -:10:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.CR No. 134/13
of the Act, namely
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; and
5. failure of the drawer to make payment within 15 days of the receipt of the notice"
After saying so, this court held that offence under section 138 of the Act can be completed only with the concatenation of all the above components and for that it is not necessary that all the above five acts should have perpetrated at the same locality; it is possible CR No.134/13 -:11:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.CR No. 134/13
that each of those five acts were 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 Act. Having noticed the aforesaid provisions, this court in Escorts Ltd. Held as follow:
"5. it is apparent, that the conclusion drawn by the High Court, in the impugned order dated 27.04.2012, is not in consonance with the decision rendered by this Court in Nishant Aggarwal vs Kailash Kumar Sharma, (2013(7) Scale 753). Therein it has been concluded, that the court within the jurisdiction whereof, the dishonoured cheque was presented for encashment, would have the jurisdiction to entertain the CR No.134/13 -:12:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.CR No. 134/13
complaint filed under section 138 of the Negotiable Instruments Act.
6. In addition to the judgment rendered by this court in Nishant Aggarwal's case, another bench of this court has also arrived at the conclusion drawn in Nishant Aggarwal's case, on the pointed issue under consideration. In this behalf, reference may be made to the decision rendered in FIL Industries Limited vs Imtiyaz Ahmed Bhat, Criminal Appeal No. 1168 of 2013 (arising out of SLP (Crl.) No.8096 of 2012), decided on12.08.2013.
Xxxxxxxx Ld. Counsel for the respondent, however, relied on the decision of this court in Harman Electronics Private CR No.134/13 -:13:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13Ltd and Another vs. National Panasonic India Private Limited (2009) 1 SCC 720, to submit that he Court at Shopian would have the territorial jurisdiction. We have perused the aforesaid decision of this Court in Harman Electronics Private Limited (Supra) and we find on a reading of paragraphs 11 and 12 of the judgment in the aforesaid case that in that case the issue was as to whether sending of a notice from Delhi itself would give rise to a cause of action for taking cognizance of a case under section 138 of the Negotiable Instruments Act when the parties had been carrying on business at Chandigarh, the Head Office of the respondentcomplainant was at Delhi but it had a branch at Chandigarh and all the transactions were carried out only from Chandigarh. On these CR No.134/13 -:14:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13facts, this court held that Delhi from where the notice under section 138 of the Negotiable Instruments Act was issued by the respondent would not have had jurisdiction to entertain the complaint under section 138 of the Negotiable Instruments Act. This question does not arise in the facts of the present case.
10. From the above discussion of law,it has become crystal clear that the NI proceedings can be commenced at any place where any of the five components as discussed above has taken place.Now adverting to the facts of the present case, it may be noted here that the cheques in question was presented before Deusche Bank, Delhi, the collecting bank of the respondent and the said cheque was dishonoured and return cheque memo was received at Delhi. Therefore, the Court at Delhi has territorial jurisdiction to entertain the present petition and in view of the above said case law at least one act out of the five ingredients of section 138 NI Act CR No.134/13 -:15:- 19.12.2013 Ms. R. Geetha Devi & Ors Vs. M/S Schenker India Pvt.
CR No. 134/13having committed at Delhi and as such, Ld. Trial Court at Delhi has territorial jurisdiction to entertain the present petition.
11. From the above discussion, I am of the opinion that counsel for the petitioner has failed to point out any illegality and perversity in the order passed by the Ld. Trial Court and, therefore, this petition is hereby dismissed.
12. TCR and copy of the order be sent to the Ld. Trial Court for information and compliance.
13. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya)
on the 19th of December, 2013 ASJ/ Dwarka Courts
New Delhi
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