Delhi District Court
Sh. Chaitanya Singh vs Tanika Enterprises on 7 January, 2023
IN THE COURT OF SHRI SUBHASH KUMAR MISHRA
ADDL SESSIONS JUDGE-07, SOUTH EAST DISTRICT:
SAKET COURT: NEW DELHI
Cr Rev No. 316/2022
Sh. Chaitanya Singh
Proprietor Of M/s Orga Green
Having its Principal Place of
D-113, Sector-64,
Nodia, Uttar Pradesh
........Appellant
Vs.
1. Tanika Enterprises
Proprietorship Concern of
Mr. Arvind Kumar Singh
Having its principal place of business at:
Sector-58, Nodia,
Uttar Pradesh
2. Mr. Arvind Kumar Singh
Having address at:
Sector-58, Nodia,
Uttar Pradesh
..........Respondents
Date of institution : 30.07.2022
Judgment reserved on : 07.01.2023
Judgment pronounced on : 07.01.2023
JUDGMENT
1. Vide this judgment, the revision petition challenging the order of Ld. Trial Court, dated 14.07.2022, passed in the matter titled as "M/s Tanika Enterprises vs. M/s Orga Greens" bearing number Ct Case No.223/2022, whereby the SHO concerned was directed to register an FIR against the petitioner under section Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.1/11 406/420 of IPC, will be disposed of.
2. Shorn of unnecessary details, alleged facts of the case are that one Rohit Aggarwal, who was acquainted with the complainant/respondent (hereinafter referred to as "respondent") and the other accused persons, approached the respondent to invest in the business of petitioner/accused Chaitanya Singh (hereinafter referred to as "petitioner") for a fixed commission.
Accordingly, the respondent entered into a Business Correspondence Agreement dated 25.06.2017 with M/s Orga Greens i.e. company of the petitioner to invest a sum of Rs.10 lac for a minimum guaranteed commission of Rs.70,000/- per month. Respondent also transferred an amount of Rs.10 lac in the account of M/s Orga Greens bearing account no.397505500122.
Thereafter, the petitioner paid the commission for two months i.e. for the month of June and July 2019 amounting to Rs.5,833/- and Rs.57,900/- respectively.
Later on, another Stock Distributor Agreement dated 08.08.2019 was entered into between the respondent and M/s Orga Greens for which an amount of Rs.10 lacs was further transferred in the account of the petitioner.
Thereafter, the promised commission was paid till the month of December 2019 and thereafter the petitioner stopped paying the commission and started avoiding the respondent and also stopped taking his calls. Afterwards, petitioner assured the respondent that the said amount would be refunded by 31.01.2020 however, no refund was made.
Allegedly, the petitioner shut his office and home and became untraceable. Later on, the petitioner issued a cheque Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.2/11 no.125442 dated 24.02.2020 for a sum of Rs.20 lac but on presentation the same returned unpaid with the remark "Funds Insufficient".
3. At the very outset, it was argued by the counsel for respondent that the instant revision petition is not maintainable because the police has already registered an FIR in compliance of the impugned order and if the said order is set aside the same would amount to quashing the FIR for which this court is not empowered and that it can only be done by Hon'ble High Court in exercise of power under section 482 of CrPC.
In support of his arguments, he placed reliance on the following judgments:-
1. Kailash Dattatrya Jadhav and another vs. State of Maharashtra, 2016 SCC Online Bom 5030;
2. Ramavatar Agrawal and others vs. State of Chhattisgarh, 2021 SCC Online Chh 3002; and
3. Amarnath Agrawal vs. Jaisingh Agrawal and others, Writ Petition (Criminal) No. 116 of 2013, decided by Hon'ble Chhattisgarh High Court on 10th of February 2015.
4. Per Contra, counsel for petitioner argued that the instant petition is maintainable in view of the following judgments:-
a). Ajay Kumar and others vs State of Uttarakhand, Criminal Appeal No. 88 of 2021 decided on 29th of January 2021 by Hon'ble Supreme Court of India;
b). Satish vs. state of Haryana and others, CRM-M-31978-
2011 Decided on 28.11.2014 by Hon'ble Punjab and Haryana High Court; and
c). Nishu Wadhwa vs Siddharth Wadhwa and another, Writ Petition (Criminal) No. 1253/2016 decided by Hon'ble High Court of Delhi on 10th of January 2017.
5. I have given my thoughtful consideration to the aforesaid Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.3/11 arguments and have also gone through the judgments relied on by both the counsels in this regard.
6. In Ram Avtar Agrawal (Supra) and in Amarnath Agrawal (Supra) Hon'ble High Court of Chhattisgarh has held that a revision petition challenging registration of FIR is not maintainable as it would amount to quashing of the FIR.
7. In Kailash Dattatraya (Supra) also Hon'ble High Court of Bombay held that where on the basis of an order under section 156(3) of CrPC an FIR has been registered, the remedy of revision, challenging such order will not be an efficacious remedy and therefore the same cannot be quashed in revisional jurisdiction.
8. However, in Satish (Supra), Hon'ble Punjab and Haryana High Court held that criminal revision lies against an order under section 156(3) of CrPC. It is pertinent to mention that in the said order Hon'ble Punjab and Haryana High Court upheld the order of revisional court vide which it had set aside an order under section 156(3) of CrPC in furtherance of which an FIR was already registered.
9. In Nishu Wadhwa (Supra), Hon'ble Delhi High Court, while deciding the issue of maintainability of a revision petition against the order of registration of an FIR observed as under:-
"In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.4/11 situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under 156(3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
10. Hence, in Nishu Wadhwa (Supra), Hon'ble Delhi High Court has clearly held that an order allowing an application under section 156(3) of CrPC is not an interlocutory order and a revision petition against the same is maintainable even after registration of an FIR in furtherance of such order. It means that even after registration of an FIR, such orders are amenable to revision jurisdiction.
11. Ld. Counsel for the respondent argued that in Nishu Wadhwa (Supra) the aforesaid observations of Hon'ble High Court is only an orbiter and hence is not binding because the issue if a revision petition is maintainable still after registration of FIR was not an issue for the decision before Hon'ble High Court. In this regard he placed reliance on judgments in following cases:-
(A) State of Orissa Vs. Sudhanshu Sekhar, (1968) 2 SCR 154 (B) MCD Vs. Gurnam Kaur (1989) 1 SCC 101 (C) A-one granites Vs. State of UP (2001) 3 SCC 537
12. It is well settled that the statements which are not part of the 'ratio decidendi' constitute 'obiter dicta' and are not authoritative. However, this court is of view that the aforesaid observation was given by Hon'ble High Court while deciding on the issue of the maintainability of revision petition itself Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.5/11 against an order directing registration of an FIR and hence that is part of the 'ratio decidendi' and is not an 'obiter dicta'.
13. Therefore, this court does not find merit in above said argument and is of the view that a revision petition is maintainable against an order under section 156(3) of CrPC, even after registration of an FIR in compliance of such order.
14. Though in the revision, the impugned order has been assailed on various grounds yet during the arguments counsel for the petitioner submitted that petitioner is challenging the instant order only on the ground that the Ld. Trial Court did not have the territorial jurisdiction to pass the instant order and that he is not pressing the other grounds mentioned in the revision.
15. He argued that allegedly all the transactions in question had taken place in 'Noida, U.P', the cheque in question was dishonoured in the branch of petitioner's bank in 'Noida, U.P', the meetings had taken place between parties allegedly within the jurisdiction of P.S Defence Colony, Delhi therefore the Ld. Trial Court exercising jurisdiction over P.S 'Sundar Nagar' did not have jurisdiction to pass the impugned order merely because the respondent presented the cheque in question in his bank account situated within the jurisdiction of P.S 'Sundar Nagar'.
16. Per Contra, counsel for the respondent argued that as per section 179 of CrPC 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 inquired into or tried by a Court Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.6/11 within whose local jurisdiction such thing has been done or such consequence has ensued.
He argued that the Ld. Trial Court rightly passed the impugned order because following consequences ensued within its territorial jurisdiction:-
1. The respondent received the information about the dishonour of the cheque in question by its bank which is situated within the territorial jurisdiction of the learned trial court.
2. The complainant had gone to its bank situated within the territorial jurisdiction of the learned trial court to collect the dishonoured cheque after being informed by its bank.
3. The cheque was handed over to the respondent by its bank within the territorial jurisdiction of the learned trial court.
4. Cheque dishonour memo was given to the respondent by its bank within the territorial jurisdiction of the Ld. Trial Court.
5. The amount was to be credited in the account of the respondent in the bank situated within the territorial jurisdiction of the learned trial court.
6. After the cheque in question was dishonoured, the bank of the respondent deducted the fees from its account, which is situated within the territorial solution of the trial court.
17. In support of his aforesaid argument, counsel for the respondent relied on the judgment of Hon'ble Supreme Court of India delivered in Lee Kun Hee, President Samsung Corp, South Korea and others vs. State of Uttar Pradesh and others, (2012) 3 SCC 132.
18. Per contra, counsel for the petitioner argued that in Lee Kun Hee (supra) the goods was supplied from Ghaziabad, U.P and the bill of exchange was given in Ghaziabad, U.P, therefore Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.7/11 the court in Ghaziabad, U.P had jurisdiction to entertain the proceedings. But, in the instant case neither any transaction happened in P.S. Sunder Nagar, Delhi nor the cheque was given in P.S. Sunder Nagar, Delhi nor it was agreed by the parties either by any written or oral agreement that cheque will be presented for encashment in P.S. Sunder Nagar, Delhi and therefore the said case law does not apply to the fact of this case.
19. Counsel for the petitioner placed his reliance upon the judgment of Hon'ble Supreme Court of India delivered in Dashrath Roopsingh Rathore Vs. State of Maharashtra, (2014) 9 SCC 129 wherein it was held that if an offence punishable under section 138 of the Negotiable Instrument Act is committed as a part of single transaction with the offence of cheating and dishonestly inducing delivery of property, then such offence may be tried either at the place where the inducement took place or where the cheque forming part of same transaction was dishonoured or at the place where the property which the person cheated was dishonestly induced to deliver or at the place where the accused received such a property.
20. Ld. Counsel for the petitioner argued that in the instant case allegedly the offence punishable under section 138 of Negotiable Instrument Act is a part of the transaction of the offence of cheating and none of the aforesaid acts i.e. act of inducement or cheque dishonour or delivery of the property by respondent or receiving of the same by petitioner had happened within the territorial jurisdiction of the learned trial court, and therefore it did not have territorial jurisdiction to pass the Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.8/11 impugned order.
21. In Dashrath Roopsingh Rathore (supra) Hon'ble Supreme Court of India has held that in the commercial world a party who is cheated and induced to deliver property on the basis of a cheque which is dishonoured has the remedy of instituting prosecution, not only at the place where the cheque was dishonoured which at times maybe place other than the place where the inducement or cheating takes place but also at the place where the offence of cheating was committed.
It means that by the said judgment, a victim has been given liberty to institute the prosecution at places other than the place of dishonour of cheque, in cases where cheating is also the part of a single transaction. However, it does not restrict a person to institute persecution at a place other than as mentioned above if at such place also, either the offence has been committed or its consequence has ensued.
22. In Lee Kun Hee (supra), it was observed by Hon'ble Supreme Court as under:-
"13. Besides the aforesaid, under Section 179 of the Code of Criminal Procedure, even the place(s) wherein the consequence (of the criminal act) "ensues", would be relevant to determine the court of competent jurisdiction. Therefore, even the courts within whose local jurisdiction, the repercussion/effect of the criminal act occurs, would have jurisdiction in the matter. The reciprocal consideration, flowing out of the agreement dated 1.12.2001, is comprised of a monetary payback. The aforesaid monetary payback was allegedly transmitted by the recipient of goods (Samsung, Dubai) to the intermediary buyer (Sky Impex Limited), by way of a bill of exchange valued at US$ 14,32,745, on 1.2.2002. The aforesaid bill of exchange was then endorsed by Sky Impex Limited, to the complainant- JCE Consultancy. JCE Consultancy Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.9/11 maintains, that it holds the said bill of exchange at Ghaziabad in India. The execution of the bill of exchange (by Samsung, Dubai) and its endorsement (by Sky Impex Limited) is in consonance with the terms and conditions of the agreement dated 1.12.2001. Upon alleged denial of payment to JCE Consultancy (under the bill of exchange dated 1.2.2002), a legal notice dated 20.12.2004 came to be issued demanding payment. In its response dated 21.12.2004, Samsung, Dubai, allegedly dishonestly/fraudulently/falsely denied liability/responsibility. Since the complainant is allegedly holding the bill of exchange dated 1.2.2001 at Ghaziabad in India, the consequence emerging out of the said denial of encashment of the bill of exchange, in our view, would be deemed to "ensue"
at Ghaziabad in India. In the instant view of the matter, the competent Court at Ghaziabad in India, in our view, would have jurisdiction in the matter under Section 179 of the Code of Criminal Procedure." (emphasis supplied)
23. In Lee Kun Hee (supra), only because the complainant had been allegedly holding the bill of exchange at Ghaziabad in India, independent of another factors, it was held that the consequence emerging out of the denial of encashment of the bill of exchange was deemed to "ensue" at Ghaziabad in India and the competent Court at Ghaziabad in India was held to have jurisdiction in the said matter under Section 179 of the Code of Criminal Procedure.
24. In the instant case as well, the respondent had been holding the cheque in question at Sunder Nagar and its payment was denied by the petitioner despite the dishonour of the said cheque, hence, as per section 179 of CrPC and law laid down in Lee Kun Hee (supra), the consequence of the alleged act had ensued in Sunder Nagar i.e. within the territorial jurisdiction of the Ld. Trial Court.
Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.10/1125. Having discussed as above, this court finds that the Ld. Trial Court was well within its territorial jurisdiction to pass the impugned order and hence needs no interference. Accordingly, the revision stands dismissed.
26. Nothing said herein above, shall, however, be construed as any expression of opinion on the merits of the case.
27. TCR be sent back along with a copy of this order. File be consigned to record room, as per rules.
(Subhash Kumar Mishra) Additional Sessions Judge-07, South-East, Saket Courts, ND 07.01.2023 Cr Rev No. 316/2022 Chaitanya Singh Vs. Tanika Enterprises & Anr. Page No.11/11