Meena ............Complainant vs Uma Kochar .............Accused on 20 August, 2022

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Delhi District Court

Meena ............Complainant vs Uma Kochar .............Accused on 20 August, 2022

          IN THE COURT OF SH. KAPIL GUPTA,
        METROPOLITAN MAGISTRATE, (NI ACT)-07
   SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI

Ct. Case No. 4995190 of 2016

CNR No. DLSW02-004932-2015


Meena                                    ............Complainant

                                    Versus


Uma Kochar                                      .............Accused

                              JUDGEMENT

     (1)    Name of the complainant Smt. Meena

     (2)    Name of the accused        Ms. Uma Kochar

     (3)    Offence complained of or U/s 138 NI Act
            proved

     (4)    Plea of accused            Pleaded not guilty
     (5)    Date of institution of case 18.12.2015
     (6)    Date of conclusion of      06.08.2022
            arguments
     (7)    Date of Final Order        20.08.2022
     (8)    Final Order                Accused is acquitted.




 Ct. Case No. 4995190/2016                                             Page 1 of 14

1. The complainant, Mrs. Meena had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act') against the accused, Ms. Uma Kochar.

2. As per complainant, the accused was having friendly relations with her and on 01.08.2015 requested the complainant for a friendly loan of Rs. 6,50,000/ for a period of 3 months and the complainant gave the amount of Rs. 6,50,000/ to the accused in cash on 04.08.2015 at her home. It is alleged that the complainant approached the accused on 01.11.2015 for return of loan amount and the accused in discharge of her liability gave Rs. 8,000/ in cash and issued 6 cheques to the complainant all drawn on Punjab National Bank, Sector12A, Dwarka, New Delhi75 which are as follows:

1. Cheque bearing no. 204672 dated 04.11.2015 for an amount of Rs. 72,000/;

2. Cheque bearing no. 204674 dated 04.11.2015 for an amount of Rs. 72,000/;

3. Cheque bearing no. 204675 dated 04.11.2015 for an amount of Rs. 63,000/;

4. Cheque bearing no. 204677 dated 04.11.2015 for an amount of Rs. 83,000/;

5. Cheque bearing no. 204678 dated 04.11.2015 for an amount of Rs. 2,80,000/;

6. Cheque bearing no. 204679 dated 04.11.2015 for an amount of Rs. 72,000/ Ct. Case No. 4995190/2016 Page 2 of 14 It is averred that all 6 cheques upon presentment were returned dishonored with remarks "Insufficient Funds" vide cheque returning memo dated 04.11.2017. It is stated that the present case has been filed qua cheque bearing no. 204677, 204678 and 204679. It is alleged that the complainant thereby sent a legal notice dated 18.11.2015 to the accused, despite which the accused failed to repay the amount and thereafter the present complaint was filed.

3. In her presummoning evidence, the complainant stated that she maintains her bank account in Punjab National Bank, Nangal Devat, Rangpuri, Mahipalpur Branch, PS Kapashera, New Delhi and examined herself as CW1 vide her affidavit Ex.CW1/A. She reiterated the contents of the complaint and placed on record, cheque bearing no. 204677 dated 04.11.2015 for an amount of Rs. 83,000/, cheque bearing no. 204678 dated 04.11.2015 for an amount of Rs. 2,80,000/ and cheque bearing no. 204679 dated 04.10.2015 for an amount of Rs. 72,000/ all drawn on Punjab National Bank, Sector12A, Dwarka, New Delhi75 as Ex. CW1/1, Ex. CW1/2 and Ex. CW1/3 respectively, bank returning memo dated 04.11.2015 as Ex.CW1/4, another bank returning memo dated 04.11.2015 as Ex. CW1/5, legal demand notice dated 18.11.2015 as Ex.CW1/6, postal receipt as Ex.CW1/7, internet generated tracking report as Ex.CW1/8 and certificate u/s 65 B of Indian Evidence Act as Ex. CW1/9 and complaint as X.

4. The accused was summoned and notice under Section 251 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') was served upon her on 13.05.2016, to which she pleaded not guilty and claimed trial.

Ct. Case No. 4995190/2016 Page 3 of 14

She stated that she had issued the cheques in issue to the complainant as she had borrowed an amount of Rs. 4,75,000/ from her and has already repaid such amount along with interest to the complainant. She admitted receiving the legal notice.

5. Thereafter, the complainant examined herself as CW1, wherein she adopted her version as recorded in pre summoning evidence, in the post summoning evidence as well.

6. In her crossexamination conducted on behalf of accused, she stated that she does not work anywhere and is a housewife. She further stated that she had paid Rs. 6,50,000/ to the accused in cash, however, had not taken any receipt for the same and also did not take any receipt for the cash amount of Rs. 8,000/ given to her by the accused. She also stated that the accused had taken payment from her for a period of 3 months and upon asking for repayment, the accused gave her 6 cheques. She stated that the amount of Rs. 6,50,000/ given to the accused was arranged from her pension and she receives pension of Rs. 28,000/ per month. A register stated to be showing payment made to the complainant in installments was produced by the accused and the relevant pages were exhibited as Ex. CW1/D1 and signature at point A1 to A52 on such pages were admitted by the complainant, however, the complainant stated that such entries were for repayment of amount of Rs. 1,00,000/ advanced on an earlier occasion. She denied the suggestion that an amount of Rs. 4,35,000/ was advanced to the accused and she had filed the present case after repayment of such amount.

Ct. Case No. 4995190/2016 Page 4 of 14

7. Statement of the accused under Section 313 CrPC was recorded on 04.01.2018, wherein all the incriminating evidence was put to her and the accused stated that she had taken loan of Rs. 4,00,000/ from the complainant and gave 6 cheques as security towards repayment of the said loan. She stated that she has already repaid the entire loan amount. She admitted receiving the legal notice. She preferred to lead defence evidence.

8. The accused in her defence evidence examined herself as DW1 wherein she deposed that she had taken Rs. 4,75,000/ from the complainant in the year 2015 and had returned such amount within 1 month of taking of the loan. She further deposed that she had filed a diary regarding the payment made to the complainant by her and last 3 pages of such diary had already been exhibited as Ex. CW1/D1. She also deposed that she had given her cheques to the complainant as security and the complainant did not return her security cheques despite her repeated demands. She further deposed that the complainant has misused her cheques.

9. The accused/DW1 was cross examined on behalf of the complainant wherein she stated that she did not issue stop payment instructions when her cheques were not returned by the complainant. She stated that she had lodged FIR when the complainant did not return her cheques despite receiving payment in cash from her, however, stated that she does not remember the date, month and year when she lodged FIR against the complainant. She stated that the contents in Ex. CW1/D1 were written by her, however voluntarily stated that the same bears her signature and that of the complainant. She stated that dates are mentioned in Ex. CW1/D1, Ct. Case No. 4995190/2016 Page 5 of 14 however, the year is not mentioned. She denied the suggestion that transactions reflected in Ex. CW1/D1 pertain to the year prior to the year 2015.

10. Sh. Arshad was examined as DW2 and he deposed that he has been working at boutique of the accused since the year 2013 as a tailor. He further deposed that the complainant provides loans to people on interest on daily basis and the accused had also given amount to the complainant on daily basis. He also deposed that accused had given signed cheques to the complainant and used to take signature of the complainant on a register regarding the amount paid to complainant. He also deposed that the accused had taken Rs. 4,00,000/ to Rs. 5,00,000/ from the complainant and after returning the amount, the accused had demanded her cheques from the complainant, however, the complainant did not return the same.

11. In his crossexamination, DW2 stated that he does not know the bank account on which the cheque given by the accused to the complainant as security were drawn and does not even know the cheque numbers.

12. As per order of the court dated 31.01.2022, application u/s 311 CrPC moved on behalf of the accused was allowed and the accused was allowed to recall CW1/complainant for further crossexamination.

13. In the further crossexamination of CW1, the complainant stated that she has not placed on record bank statement showing withdrawal of Rs. 6,50,000/. She denied the suggestion that accused had repaid the amount of Rs. 4,50,000/ in installments of daily basis.

Ct. Case No. 4995190/2016 Page 6 of 14

14. Further, additional statement of the accused under Section 281 CrPC r/w Section 313 CrPC was recorded on 26.02.2022 wherein the accused stated that the complainant had charged interest on the loan given to her and an amount of Rs. 4,50,000/ was given to her as loan by the complainant. She did not prefer to lead additional defence evidence.

15. Incharge VB PS Kapashera was examined as AW 1 in exercise of power under Section 311 CrPC by the court and he deposed that area Nangal Devat, Rangpuri, Mahipalpur does not fall within jurisdiction of PS Kapashera and as per his knowledge, falls within jurisdiction of PS Vasant Kunj South. Opportunity of the complainant to cross examine the witness was closed.

16. Incharge VB PS Vasant Kunj (South) was examined as AW 2 in exercise of power under Section 311 CrPC by the court and he deposed that area Nangal Devat, Rangpuri, Mahipalpur falls within jurisdiction of PS Vasant Kunj (South) and cases related to offences within jurisdiction of PS Vasant Kunj (South) have to be filed before Patiala House Court as per his knowledge. The witness was not cross examined by the complainant despite an opportunity being given.

17. I have heard the final arguments as advanced by Ld counsel for the parties at length and have given my thoughtful consideration to rival submissions made by them. I have also gone through the material placed on record.

Ct. Case No. 4995190/2016 Page 7 of 14

18. During the course of final arguments, Ld. counsel for the complainant submitted that the accused has admitted her signature on the cheques in issue. It was submitted that the accused did not give stop payment instructions to her bank and did not produce the FIR against the alleged misuse of the cheques in issue. It was argued that all ingredients under Section 138 NI Act have been proved by the complainant and hence the accused must be convicted.

19. Per contra, it was contended on behalf of the accused that the cheques in issue were merely given as security to the complainant and thus, the accused does not have any liability towards the complainant. It was contended that the complainant has not placed on record any receipt against the alleged loan given by her or statement of account and thus the present case deserved to be dismissed. It was submitted that loan to the tune of the amount as claimed by the complainant was not taken by the accused and the accused has repaid the entire loan amount taken by her. It was contended that the cheques in issue have been misused. It was prayed that the accused be acquitted of the offence u/s 138 NI Act.

20. Before proceeding further, it would be appropriate to discuss, that as per Section 138 of the NI Act, following ingredients have to be proved by the complainant:

1. The accused issued a cheque on account maintained by him with a bank.

2. The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.

Ct. Case No. 4995190/2016 Page 8 of 14

3. The said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.

4. The aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.

5. The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.

6. The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.

21. Without going into the merits on the contentions led on behalf of the parties, it is pertinent to discuss whether the court has territorial jurisdiction to try the present case. In the pre summoning evidence led on behalf of the complainant, it has been stated that she maintains her bank account in Punjab National Bank, Nangal Devat, Rangpuri, Mahipal Pur Branch, PS Kapashera, New Delhi.

22. At this juncture, it is appropriate to discuss Section 142 of the NI Act which states as follows:

Section 142. Cognizance of offences (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by Ct. Case No. 4995190/2016 Page 9 of 14 the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.

(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation. For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.

Ct. Case No. 4995190/2016 Page 10 of 14

23. It has been held by the Hon'ble High Court of Delhi in the case titled as Liugong India Pvt. Ltd. v. State (Govt. of NCT of Delhi), 2018 SCC OnLine Del 8322 as follows:

"13. Vide The Negotiable Instruments (Amendment) Act, 2015 dated 15.06.2015, which came into force at once, Section 142(2) was inserted to The Negotiable Instruments Act, 1881 and Section 142A was also inserted. On 22.09.2015, The Negotiable Instruments (Amendment) Act, 2015 was promulgated and vide order dated 15.06.2015, the amendments to Section 142 of The Negotiable Instruments Act and the insertion of Section 142A to The Negotiable Instruments Act was made, which read as under : "142A. Validation for transfer of pending cases (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under subsection (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub section had been in force at all material times. (2) ) Notwithstanding anything contained in subsection (2) of section 142 or subsection (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub section (2) of section 142 or the case has been transferred to Ct. Case No. 4995190/2016 Page 11 of 14 that court under subsection (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments(Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under subsection (2) of section 142, as amended by the Negotiable Instruments (Amendment)Ordinance, 2015, before which the first case was filed and is pending, as if that sub section had been in force at all material time"

14. Thus in terms of the amendment to The Negotiable Instruments Act, 1881, jurisdiction in relation to an offence punishable under Section 138 of The Negotiable Instruments Act, 1881 lay only with the branch of the bank where the payee of the holder in due course maintained his / its account which in the instant case was the HDFC Bank Ltd., Kalkaji, New Delhi i.e. the bank of the petitioner herein i.e. the complainant of the CC no. 157/1/12 and thus the jurisdiction lay with the Court having jurisdiction over the area of Kalkaji i.e. South Eash District, New Delhi on the date when the application seeking Ct. Case No. 4995190/2016 Page 12 of 14 revival / restoration of the complaint, was taken up on 08.10.2015."

24. It is pertinent to mention that admittedly complainant maintains her bank account in Punjab National Bank, Nangal Devat, Rangpuri, Mahipalpur Branch. The Incharge VB, PS Kapashera in his examination as AW 1 deposed that area Nangal Devat, Rangpuri, Mahipalpur does not fall within jurisdiction of PS Kapashera and as per his knowledge, falls within jurisdiction of PS Vasant Kunj South. The opportunity of the complainant to cross examine the witness was closed after opportunity for the same being given. Further, Incharge VB, PS Vasant Kunj (South) in his examination as AW 2 specifically deposed that area Nangal Devat, Rangpuri, Mahipalpur falls within jurisdiction of PS Vasant Kunj (South) and cases related to offences within jurisdiction of PS Vasant Kunj (South) have to be filed before Patiala House Court as per his knowledge and the witness was not cross examined on behalf of the complainant despite an opportunity being given. In view of no cross examination of AW 1 and AW 2 on behalf of the complainant, it can be observed that complainant has not disputed the statement of such witnesses.

25. In view of the above discussion, it is observed that branch of the bank where complainant maintains her account i.e. Punjab National Bank, Nangal Devat, Rangpuri, Mahipalpur Branch was not located within the territorial jurisdiction of South West District, Delhi, where this court exercises its territorial jurisdiction but was located within territorial jurisdiction of New Delhi District, Delhi and cases pertaining to the New Delhi District, Delhi are tried by Patiala House Courts and as per Section Ct. Case No. 4995190/2016 Page 13 of 14 142(2)(a) of NI Act, the offence under Section 138 NI Act can be inquired into or tried only by court within whose local jurisdiction if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated and thus, in considered opinion of the court, this court did not have the territorial jurisdiction to conduct trial of the present case.

26. In view of the totality of facts and circumstances of the present case and on the basis of material as is placed on record, this court is of the considered opinion that this court did not have the territorial jurisdiction to conduct trial of the present case in terms of Section 142 of NI Act. Accordingly, the complaint filed under Section 138 of NI Act is hereby dismissed and the accused Ms. Uma Kochar D/o Sh. Sandeep Kochar is acquitted of the offence u/s 138 NI Act.

Announced in the court on 20.08.2022.

(Kapil Gupta) Metropolitan Magistrate(NI Act)07 South West District, Dwarka Courts, New Delhi Ct. Case No. 4995190/2016 Page 14 of 14

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Delhi District Court

Meena ............Complainant vs Uma Kochar .............Accused on 20 August, 2022