Delhi High Court
Din Dayal Kayan vs Smc Global Securities Ltd. on 12 July, 2010
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. Nos. 2163/2010, 2164/2010, 2165/2010 & 2166/2010
DIN DAYAL KAYAN ..... Petitioner
Through Mr. Kunal Chatterji, Advocate.
versus
SMC GLOBAL SECURITIES LTD. ..... Respondent
Through Mr. Gaurav Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 12.07.2010 These four petitions under Section 482 of Code of Criminal Procedure, 1973 are directed against the summoning order dated 23rd April, 2009, taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1882 and summoning the petitioner to appear for dishonour of four cheques as per details given below:-
Cheque Number Date Amount 1. 059823 19.01.2008 Rs. 5,00,000/- 2. 703766 06.02.2008 Rs. 5,00,000/- 3. 703767 06.02.2008 Rs. 5,00,000/- 4 703782 21.03.2008 Rs. 4,00,000/-
2. In the petitions it is admitted that there were business dealings between the petitioner and the complainant, the respondent herein and the petitioner was acting as a sub-broker with a terminal of the respondent at the petitioner's address. It is further stated that the parties worked together up to 22nd January, 2008 and thereafter the petitioner stopped working with the respondent-complainant.
3. As per the complaint, the aforesaid cheques were presented for encashment and were returned back dishonoured without payment. Thereafter, legal notice was issued. It is not stated in the petitions whether any reply was sent to the legal notice. As per the counsel appearing for the respondent no reply to the legal notice was received.
4. Learned counsel for the petitioner submitted that the Income Tax Department had seized and blocked the account in question vide order dated 28th February, 2008. It is also submitted that the cheques in question were posted dated cheques and were given as a security. Copy of the order passed by the Income Tax Department has not been placed on record. The petitioner has not stated the reason and cause why the said order was passed. Mere issue of an attachment order without disclosure and statement why it was passed, will not justify invocation of inherent power of the court. Whether or not attachment of seizure or block order was justified and valid is another aspect. In the petitions it is also not stated whether the alleged order passed by the Income Tax Department was withdrawn, if so, on which date.
5. The details of the cheques have been given above. The cheque numbers are not in seriatim but are of different numbers except for cheque Nos. 2 and 3 which are both dated 6th February, 2008. Cheque No.4 is dated after the alleged order was passed by the Income Tax Department seizing and blocking the account. The petitioner has not filed along with petitions copy of the statement of bank account to show the balance and whether the balance available in the said account was sufficient or not, when the cheques were issued and/or presented. Further, these all are disputed questions of facts and have to be established and proved.
6. Learned counsel for the petitioner has relied upon Harman Electronics (P) Ltd. Vs. National Panasonic India (P) Ltd. (2009) 1 SCC
720. It is submitted that the petitioner is based in Kolkata and mere issue of notice from Delhi will not confer jurisdiction on criminal courts located at Delhi. A perusal of the complaint discloses that the respondent-complainant is based and is carrying on business from New Delhi. In paragraph 10 of the complaint it is stated as under:-
"10. That the cheque was deposited for realization of amount here in Delhi, the return memo was received here in Delhi, the knowledge of dishonor of the said cheque to the complainant accrued at Delhi registered office, statutory notice of demand was sent from Delhi, the complainant has its registered office at Delhi, the cheque got dishonoured in Delhi and hence the casue of action for filing the complaint arose to the complainant within the jurisdiction of this Hon'ble Court when the accused failed to make the payment of the cheque in dispute to the complainant within 15 days of the receipt of notice".
7. Thus, the complainant has not invoked jurisdiction of the courts in Delhi solely on the basis that the statutory notice of payment was sent from Delhi. They have stated other grounds/facts for filing the complaint in Delhi. In these circumstances, I am not inclined to accept this plea of the petitioner.
8. I do not find any merit in the present petitions and the same are dismissed. It is clarified that the observations made in this order are for the purpose of the disposal of the petitions and will not be binding on the trial Court.
9. At this stage, learned counsel for the petitioner states that the petitioner is a resident of Kolkata and the case is fixed tomorrow for his appearance before the trial court. He states that the trial court has already rejected the application of the petitioner seeking exemption from personal appearance. Counsel for the petitioner states that 2-3 days' time may be granted to enable the petitioner to come to Delhi. It is open to the petitioner to make the said request before the trial Court, but the petitioner must ensure that he is present and complies with the order of the trial Court.
SANJIV KHANNA, J.
JULY 12, 2010 NA