Delhi District Court
Sh. Yogesh Tyagi vs State on 23 March, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE(CENTRAL): DELHI
Criminal Revision No.33/13 (RBT)
Old Crl. Rev. No. 102/12
In the matter of:
1. Sh. Yogesh Tyagi,
S/o late Sh. Ram Singh,
R/o Anyogipuram, Garh Road,
PS Medical, Meerut, U.P.
2. Shree Krishna Shiksha Prasar Samiti
Through its Chairman,
Anyogipuram, Garh Road,
PS Medical, Meerut, U.P. .......Appellants
Versus
1. State
Government of NCT of Delhi,
Through its Secretary.
2. Times Business Solution Ltd.,
Having Registered Office At :
Times House 7, Bahadurshah Zafar Marg,
New Delhi - 2. ......Respondents
Date of Institution: 01.02.2013
Date of Judgment: 23.03.2013
J U D G M E N T
Present revision petition has been filed while challenging order Crl. Revision No.33/13 1 dated 16.10.2012 passed by learned Metropolitan Magistrate in criminal complaint No. 832/1/09 which is pending under Section 138 of Negotiable Instruments Act (hereinafter referred to as "the Act"). Petitioners herein are accused before the Trial Court in the said criminal complaint.
2. Vide the impugned order, application under Article 141 of Constitution of India filed by the appellant before the Trial Court came to be dismissed.
3. In the criminal complaint, accusation levelled by the complainant respondent no. 2 herein, in brief is that accusedpetitioner are stated to have approached the complainant and signed/submitted an order form dated 24.03.2009 so as to avail services of Regional Non IT Databased for a period of two years, as available on online jobsite timesjob.com i.e. of the complainant.
Cheque no. 084749 dated 15.05.2009 for a sum of Rs.39045/ drawn by the accused on State Bank of India, Garh Road, Meerut, in favour of the complainant to discharge legal debt/ liability towards the complainant, when presented for encashment was received back as dishonoured with remarks "payment stopped by drawer" but the accusedpetitioners failed to discharge the liability despite service of legal notice dated 13.06.2009.
4. A perusal of Trial Court record would reveal that vide order dated Crl. Revision No.33/13 2 06.09.2011 Trial Court ordered for issuance of process to the accused. On 17.05.2012 application under Article 141 of Constitution of India was filed before the Trial Court. As noticed above, application has been dismissed vide the impugned order.
Vide the impugned order, learned Metropolitan Magistrate has found no merit in the contention of learned counsel for the accused persons on the point of application of provisions of Section 201 CrPC. The other point decided by learned Metropolitan Magistrate vide impugned order is that the Court of Metropolitan Magistrate at Delhi is Court of competent jurisdiction to entertain and try the present case.
5. In the course of arguments before this Court learned counsel for the petitioner has not challenged the findings recorded by learned Metropolitan Magistrate so far as scope of Section 201 CrPC at post summoning stage in a complaint case is concerned.
Learned counsel for petitioner has challenged the impugned order only on the second aspect that is on the point jurisdiction of the Courts at Delhi. The contention is that in the present case, Courts of Metropolitan Magistrate, Delhi have no jurisdiction to entertain and try the complaint under Section 138 of the Act, as the cheque was to be presented to the Drawer's Bank at Meerut.
Learned counsel has contended that simple delivery of a cheque to ones banker for its encashment, from the account of drawer does not Crl. Revision No.33/13 3 confer jurisdiction on the Court within territorial jurisdiction of which the banker of the drawee is situate. It has been contended that herein the cheque in question having been drawn on State Bank of India, Branch Garh, Meerut, Courts of Metropolitan Magistrate at Delhi have not got any jurisdiction to try the complaint, the reason being that it is the place where it gets dishonoured which confers jurisdiction on the Court of Metropolitan Magistrate to entertain and try such a complaint under Section 138 of the Act. In support of his submission, learned counsel for petitioners has referred to following decisions :
1. Mahika Enterprises & Anr. vs. State (NCT of Delhi) & Anr. 2010 [4] JCC [NI] 361.
2. Harman Electronics Private Ltd. & Anr. vs. National Panasonic India Pvt. Ltd. (2009) 1 Supreme Court Cases
720.
3. Gopal Mishra vs. State & Anr. 167 (2010) DLT 387.
4. Vir Prakash Sharma vs. Anil Kumar Agarwal & Anr.
(2007) 7 Supreme Court Cases 373.
5. Times Business Solution Ltd. vs. Debayan Bagchi 2010 [1] JCC [NI] 113.
6. On the other hand, learned counsel for respondent no. 2 has referred to decision in GE Capital Transportation Financial Services Ltd. vs. Rahisuddin Khan 182 (2011) Delhi Law Times 385 and submitted that herein the multiple cheque payable at par on all branches of SBI having been presented by the complainant to its banker at New Delhi and the same have been got dishonoured at New Delhi itself, Courts Crl. Revision No.33/13 4 at Delhi have got jurisdiction to entertain and try the complaint. Reference has also been made to decision in K. Bhaskaran v. Sankaran Vaidyan Balan & Anr. IV (1999) CCR 63 SC.
Further it has been contended that in view of the decision in K. Bhaskaran case (Supra) and GE Capital's case (Supra), decisions relied by learned counsel for the petitioners do not come to aid of the petitioners and the present revision petition is liable to be dismissed.
7. Relevant portion of decision in GE Capital Transportation Financial Services Ltd. vs. Rahisuddin Khan's case (supra), is reproduced here under for ready reference: "(I) Negotiable Instrument Act, 1881
41. The Supreme Court in the case of K. Bhaskaran (supra) has held that the Court would have jurisdiction to try the case under Section 138, NI Act over a place from where legal notice is issued to the customer demanding a payment of the dishonoured cheque under Section 138 of NI Act apart from places where other components of the offence has taken place namely
(i) drawing of cheque;
(ii) presentation of the cheque to the bank,
(iii) returning of the cheque unpaid by the Drawee bank;
(vi) failure of the drawer to make payment within 15 days of the
receipt of the notice.
42. The judment of K. Bhaskaran (supra) has been reiterated by the devision bench of the Hon'ble Supreme Court in the case of Smt. Crl. Revision No.33/13 5 Shamshad Begum (supra).
43. However, the devision bench of the Supreme Court in M/s. Harman Electronics (supra) gave a contrary judgment to that of K. Bhaskaran (supra) and Shamshad Begum(supra) and held that the Court would not have jurisdiction over the place where legal notice is issued to the customer demanding payment of the dishonoured cheque under Section138 of NI Act.
44. However, even on the issue of place of issuance of legal notice, the decision of the Supreme Court in K. Bhaskaran (supra) is still the law of the land since it has not been overruled by a Larger Bench of Constitution Bench of the Supreme Court in Central Board of Dawoodi Bohra (supra), which has held that law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. The same has been reiterated by the Constitution Bench of the apex Court in Union of India & Anr. V. Raghubir Singh, 1989 (2) SCC 754.
56. Thus, in order to give a brief review of what has been discussed above:
(1) The Magistrate taking cognizance of an offence must not necessarily have the territorial jurisdiction to try the case as well. Only when an inquiry or trial begins, does the jurisdictional aspect become relevant. In fact, after taking cognizance of the offence, the Magistrate may have to decide as to which Court would have the jurisdiction to enquire into the case and such a situation can arise only during the post cognizance stage.
(2) At the precognizance stage, the Magistrate has only to examine the averments, as set out in the complaint and not more, for prima facie arriving at a decision as to whether some of the acts essential for completing an offence under Section 138 of the Act were done in the territorial jurisdiction of that Court.Crl. Revision No.33/13 6
(3) There appears no ambiguity on the aspect of the right of the petitioner / complainant to file a complaint in a Court having jurisdiction in the context of the five acts mentioned in the case of K. Bhaskaran (supra).
(4) Learned Metropolitan Magistrates are precluded from returning / dismissing the complaints in view of the order dated 03.11.2009 passed by the Supreme Court.
Finally in 2009, Delhi High Court Legal Services Committee (supra) the decision applies only to those cases where the complainant invokes jurisdiction of Delhi Courts solely on the ground that notice of demand was issued from Delhi despite the fact that it was served outside Delhi. The said judgment has been challenged in SLP No. 29044/2009 titled as Vinay Kumar Shailendra V. Delhi High Court Legal Services Committee Anr. wherein the Supreme Court vide order dated 3.11.2009 has directed to maintain status qua until further order. Hence, it is crystal to say that, keeping in view the "doctrine of precedent", the judgment delivered by the Division Bench of the Apex Court in K. Bhaskaran (supra) is still binding, as till date no Larger Bench of the Apex Court has altered or reviewed the said judgment qua territorial jurisdiction."
It may be mentioned here that in GE Capital vs. Rahisuddin Khan (supra), Hon'ble High Court has observed in para no. 54 that the judgment of Supreme Court in K. Bhaskaran (supra) ought to be followed regardless of the contrary pronouncements made by the various Benches of the High Court in the cases namely (a) M/s. Mahika Enterprises & Anr. v. State (NCT of Delhi & Anr.) Crl. Revision No.33/13 7 judgment dated 1.10.2010 passed in Crl. M. C. 1988/2010, (b) V. S. Thakur v. State of NCT of Delhi & Anr. (Delhi) 2010 (1) JCC (NI) 40, (c) Som Sugandh Industries Ltd. & Anr. II (2010) DLT (Crl. ) 475, (d) Online IT Shoppe India Pvt. Ltd. & Ors. v. State & Anr. ( (2010) DLT (Crl. 110=2010 (1) JCC (NI) 27.
8. Herein cheque in question was delivered by the complainant respondent no. 2 to its banker HDFC Bank Ltd. Parliament Street, New Delhi and it was received back from SBI Branch, Dlishad Garden, Delhi with remarks "Payment Stopped by Drawer".
9. In GE Capital Transportation Financial Services Ltd. Vs. Lakhmanbhai Govindbhai Karmur Creative construction & Ors, 2011(2) JCC (NI) 105, relied on behalf of petitioners, Learned Metropolitan Magistrate rejected the arguments of the complainant that presentation of the cheque at a service branch of the Drawee Bank situated at Delhi would confer jurisdiction on the courts at Delhi. It was observed, in the said order, that, the cheque for encashment was issued by a drawee bank located outside the territorial jurisdiction of Delhi and hence, the complaint was not maintainable in Delhi. It was also held that mere issuance of notice in Delhi would not vest jurisdiction on the Courts at Delhi. In revision, the learned ASJ upheld the decision of the learned Crl. Revision No.33/13 8 Metropolitan Magistrate and dismissed the revision petition preferred by the petitioner. Hon'ble Judge has observed that two acts of presentation of the cheque and issuance of legal notice from Delhi, constitute two of the five acts contemplated by K. Bhaskaran (supra)."
But on the point of Core Banking System, Hon'ble Judge has observed as under: "15. It is however made clear that while passing the present order, this Court has refrained from dealing with the aguments urged by the learned counsel for the petitioner on the issue of the core banking system adopted by banks in the country, which requires outstation cheques to be paid at par at all the branches of a drawee bank in any part of the country which as per the petitioner, is an additional ground for conferring territorial jurisdiction on Courts at Delhi, for the reason that, aforesaid arguments, this Court finds that there exist other grounds which are considered sufficient to hold that, on a prima facie view, courts at Delhi would be vested with territorial jurisdiction to entertain the complaint filed by the petitioner under Section 138 of the Act."
10. In the impugned order, learned Metropolitan Magistrate has observed that the cheque in question though drawn on SBI Bank Branch at Meerut was payable at par by all branches of SBI Bank, and as such it could be presented in any branch of the SBI Bank, same having been delivered by the complainant to its bankers (HDFC Bank) at New Delhi, the cheque is deemed to have been presented at Delhi.
11. As is available from the cheque in question, it was a multiple Crl. Revision No.33/13 9 cheque payable at par by all branches of SBI. Even if, the accused - petitioner was having his account with SBI Branch Garh Road, Meerut, it was payable at par at all other branches of SBI. Since the complainant delivered cheque to its bankers - HDFC New Delhi which in turn presented the same to SBI Branch, Dilshad Garden, through proper channel, the cheque in question can safely be said to have been presented to the SBI so as to confer territorial jurisdiction on the courts at Delhi, as cheque return memo was issued by SBI branch, Dilshad Garden, Delhi.
12. So far as decision in Harman Electronics case (supra) cited by learned counsel for petitioner is concerned, in view of decision in G.E. Capital Vs. Raisuddin Khan (Supra), decision of Hon'ble Apex Court in K. Bhaskaran's case (supra) is to be followed as the same is law of the land, having not been overruled, in view of doctrine of binding president. Therefore, decision in Harman Electronics case does not come to the aid of the petitioner as has also been rightly observed by learned Metropolitan Magistrate.
13. In Gopal Mishra's case (supra), the cheque in question was drawn in a bank at Jaipur and was dishonored by that bank at Jaipur. Facts do not reveal that that was a case of issuance of multiple cheque payable at par by all branches of SBI. Crl. Revision No.33/13 10
14. In Vir Parkash Sharma's case (supra) cited by learned counsel for petitioner, Hon'ble Apex Court observed that there was nothing on record to show that any part of cause of action arose within the jurisdiction of the concerned court; that only because cheques issued were dishonored, same by itself did not mean that par had cheated the complainant. The point involved therein was not the point in issue herein. Therefore, same also does not come to the aid of the petitioner.
15. In Times Business Solution's case (supra) relied on by learned counsel for petitioner, Hon'ble Judge upheld the orders passed by learned Metropolitan Magistrate that the courts at Delhi had no jurisdiction to entertain and try the complaint. In the said case, respondents had issued cheques from the account maintained by them with their respective banks situated in different parts of the country. Drawer's bank was situated outside Delhi. Complainant presented cheques by depositing the same with its banker, who in turn presented the same to drawers bank. Hon'ble Judge observed that at the most banker of the petitioner - complainant could be termed as forwarding bank and / or collecting bank and further that to attract criminal liability of the drawer of the cheque, the same had to be presented at drawer's bank, on which the cheque was drawn. Crl. Revision No.33/13 11
Facts of the case do not reveal that it was a case of multiple cheque payable at par on all the branches of bank of the drawer. Therefore, this decision also does not come to the aid of the petitioner.
Conclusion
16. Herein, having regard to all the facts and circumstances and the acts in the acceptance of the order placed by the petitioner to avail of online service available at Timesjobs.com, the availing of online service, presentation of cheque at Delhi and issuance of legal notice, from Delhi, the courts at Delhi have got jurisdiction to entertain and try the complaint U/s 138 of Negotiable Instruments Act.
17. In view of above discussion, this court does not find any merit in the contention raised by learned counsel for petitioner that the Courts at Delhi have no jurisdiction as the cheque was not presented at the concerned branch of the drawer's bank.
As a result, revision petition is hereby dismissed. Trial Court Record be returned and file of revision petition be consigned to Record Room.
Parties to appear before learned Trial Court on 03.04.2013.
Announced in Open Court
on 23.03.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Revision No.33/13 12