Delhi High Court
Hartaj Singh vs Codrej Agrovet Ltd & Another on 31 May, 2010
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
12
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 50/2010
HARTAJ SINGH ..... Petitioner
Through: Mr. Nitin Mittal, Adv.
Versus
GODREJ AGROVET LTD & ANR. ..... Respondents
Through: Mr. Pawan Sharma, Standing
Counsel with Mr. Kushagra
Arora, Mr. Mohit Mudgil and
Ms. Laxmi Chauhan, Advs.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 31.05.2010 Crl. M.C. No.50/2010 & Crl. M.A. No.180/2010 (for stay)
1. The petitioner Col. Hartaj Singh submits that the criminal courts in Delhi do not have territorial jurisdiction to entertain and decide the criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by respondent No.1, Godrej Agrovet Ltd. for dishonour of cheque of Rs.15,48,639/-. Learned counsel for the petitioner in this regard has relied upon Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neko Ltd., (2001) 3 SCC 609, Harnam Electronics Pvt. Ltd. Vs. National Panasonic India Ltd., (2009) 1 SCC 720 and a decision of this Court in Online IT Shoppe India Pvt. Ltd. & Ors. Vs. State & Anr. Crl. M.C. No.2695/2009 and Crl. M.A. No.9081/2009. Learned counsel for the petitioner has submitted that the petitioner is based in Ladakh and the bank from which the dishonoured cheque was issued is situated at Panchkula, Haryana.
2. Respondent No.1 in the reply to the petition has stated that the payments made by the petitioner were credited in the account maintained by respondent No.1 at Delhi. Respondent No.1 has filed some of the invoices raised by respondent No.1 for supply of goods and it is pointed out that the said invoices were issued from Delhi. My attention is drawn to the airway bills and it is submitted that the supplies were made from Delhi. My attention is also drawn to the reply to the legal notice dated 12th January, 2009 given by the petitioner in which it is stated:-
"....in 2006 Godrej Agrovet Ltd. office in Pitampura New Delhi had asked me to give them 2 or 3 blank cheques duly signed by me to take payments from time to time. Cheque No.243426 of SBI Sector 10, Panchkula was one of the above cheques. I have not filed the amount as I do not know the exact figure. Probably the company has filed amount outstanding towards me."
3. In the reply affidavit, the respondent No.1 has stated that negotiations for arrangement of supply of goods took place in Delhi. As per the invoices the goods dispatched were on account and at the risk of the purchaser i.e. the petitioner and were subject to Delhi Jurisdiction.
4. In Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd.,(2006) 3 SCC 658, reference was made to Prem Chand Vijay Kumar v. Yashpal Singh(2005)4 SCC 417 wherein it has been held that for securing conviction under the Negotiable Instruments Act, 1881 the following facts are required to be proved :
(a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured;
(b) that the cheque was presented within the prescribed period;
(c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and
(d) that the drawer failed to make the payment within 15 days of the receipt of the notice.
5. Examining the question of territorial jurisdiction in criminal cases and refering to sections 177 to 179 of the Code of Criminal procedure,1973 in K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510, at page 517 it has been observed:
"11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under Section 177 of the Code "every offence shall ordinarily be enquired into and tried in a court within whose jurisdiction it was committed". The locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as the sole criterion to determine the place of offence. It must be remembered that offence under Section 138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act.
12. Even otherwise the rule that every offence shall be tried by a court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle. Section 177 itself has been framed by the legislature thoughtfully by using the precautionary word "ordinarily" to indicate that the rule is not invariable in all cases. Section 178 of the Code suggests that if there is uncertainty as to where, among different localities, the offence would have been committed the trial can be had in a court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon. It reads thus:
"179. Offence triable where act is done or consequence ensues.--When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be enquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued."
13. The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the courts to try the offence was sought to be determined.
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 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."
6. In the case of Harman Electronics (supra) which has been followed in Online IT Shoppe India Pvt. Ltd. (supra) the question raised and answered was different as is apparent from the quote from the decision of the Supreme Court;-
"12. The complaint petition does not show that the cheque was presented at Delhi. It is absolutely silent in that regard. The facility for collection of the cheque admittedly was available at Chandigarh and the said facility was availed of. The certificate dated 24-6- 2003, which was not produced before the learned court taking cognizance, even if taken into consideration does not show that the cheque was presented at the Delhi branch of Citibank. We, therefore, have no other option but to presume that the cheque was presented at Chandigarh. Indisputably, the dishonour of the cheque also took place at Chandigarh. The only question, therefore, which arises for consideration is that as to whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the Negotiable Instruments Act."
(emphasis supplied)
7. In the present case the place of issue of legal notice is not the basis of the claiming the jurisdiction of Delhi Courts.
8. It is clear from the stand taken and the averments made in the reply filed by the respondent No.1, that there is a factual dispute as to whether the negotiations and meetings were held in Delhi before the supplies were made. There is a dispute about the place or location where the debt or liability had accrued and were/are payable. There is a dispute about the place where the dishonoured cheque was delivered to the complainant. Reply of the petitioner dated 12th January, 2009 has been quoted above. These disputes cannot be decided without parties leading oral evidence and cross- examination of witnesses. Section 178 of the Code of Criminal Procedure, 1973 has been referred to and examined in K.Bhaskaran (supra). Per- se and ex facie it cannot be said that the act of filing the criminal complaint in Delhi after presentation of the cheque by the respondent-complainant to their bankers in Delhi and its dishonour is ingenious, insidious, guileful or guided by the intention to harass and abuse the process of law. It will not be appropriate to exercise extra-ordinary jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 at the initial stage itself and quash the summoning order.
9. Learned counsel for the petitioner has submitted that the averments made in the reply filed by respondent No.1 and the documents filed by the respondent No.1 with the reply, are not a part of the complaint, pre-summoning affidavit by way of evidence and the documents filed before the trial court. It is accordingly submitted that only the averments made in the complaint and the pre-summoning affidavit by way of evidence should be taken into consideration in order to decide the question of territorial jurisdiction. In this regard he relies upon the judgments in State of Orissa & Anr. Vs. Saroj Kumar Sahoo, (2005) 13 SCC 540, K.Ramakrishna & Ors. Vs. State of Bihar & Anr., (2000) 8 SCC 547, CBI Vs. Ravi Shankar Srivastava & Anr., (2006) 7 SCC 188 and U.P. Pollution Control Board Vs. Dr. Bhupendra Kumar Modi & Anr., (2009) 2 SCC 147.
10. In these judgments, it has been held that the inherent power under Section 482 of the Code of Criminal Procedure, 1973 can be exercised when it manifestly appears that there is a legal bar against institution or continuation of proceedings on the allegations made in the complaint taken on the face value or if the allegations accepted in their entirety do not disclose commission of an offence. In the present case, the learned trial court has taken cognizance and was satisfied that the court has territorial jurisdiction. Learned trial court has not dismissed the complaint on the ground of lack of territorial jurisdiction and no such objection was raised. In case these objections or contentions had been raised at the pre-summoning stage, the said respondent no. 1 could have filed an additional affidavit by way of evidence along with supporting documents to justify that the criminal courts in Delhi have jurisdiction. This question has now been raised before the High Court and the respondent No.1 have filed the affidavit and documents and have taken a clear and categorical stand. It is further pointed out that the respondent No.1 complainant is entitled to file documents even after the accused is summoned. Thus, there is merit in the contention raised by respondent No.1. In case the learned trial court had raised the said contention it was open to respondent No.1 to file an additional affidavit and documents to show and establish the territorial jurisdiction of the Delhi Courts. The said contention has now been raised and has been answered in the reply along with the supporting documents.
11. In view of the aforesaid, I do not find merit in the present petition and the same is dismissed. It is however clarified that this Court has taken a prima facie view. There are disputed questions of fact which have to be gone into and examined by the trial court. Dasti.
SANJIV KHANNA, J.
MAY 31, 2010/J