Punjab-Haryana High Court
Goenka Tradelinks Pvt. Ltd vs Indiabulls Financial Services Limited on 22 May, 2013
CRM-M No.34763 of 2012 (O&M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.R.M-M No.34763 of 2012 (O&M)
Date of decision : 22.05.2013
Goenka Tradelinks Pvt. Ltd.
...... Petitioner
versus
Indiabulls Financial Services Limited
...... Respondent
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
***
Present : Mr. Awanish Kumar, Advocate
for the petitioner.
Ms. Kiranbala Jain, Advocate
for the respondent.
***
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
AJAY TEWARI, J. (Oral)
The present petition has been filed under Section 482 Cr.P.C.
read with Article 227 of the Constitution of India for quashing of complaint case no.5121/2010 dated 13.10.2010, filed by the respondent, and the summoning order dated 13.10.2010 passed by Judicial Magistrate Ist Class, Gurgaon. Further prayed for quashing of order dated 21.07.2012 cancelling the bail of the petitioner and order 28.08.2012 dismissing the recalling application by the trial Court.
Reply filed on behalf of the respondent is taken on record.
CRM-M No.34763 of 2012 (O&M) ::2::
Learned counsel for the petitioner contends that the trial Court erred in law and failed to appreciate that no offence u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the 1881 Act") was made out in the complaint as the offence under Section 138 of the 1881 Act can be made out for legally enforceable debt or liability. He further contends that the respondent in its reply to the consumer complaint instituted by the petitioner herein had categorically stated that as on 04-08-2010, the total outstanding due towards petitioner was `14,52,367/-, vide email dated 17-09-2010, the respondent claimed the total outstanding to be `24,65,829/- and the respondent in its claim before the Arbitrator on 31-12-2009 claimed `22,17,846/- to be due towards the petitioner which was awarded by the Arbitrator. Learned counsel for the petitioner further contends that in light of above, only inescapable conclusion is that as on 27-07-2010, the petitioner did not owe `30,00,000/- to the Respondent and hence the petitioner cannot be prosecuted for cheque involving the alleged amount. The respondent suppressed vital facts from the trial Court that the Petitioner had paid 15 instalments to them and the complaint is not maintainable as the trial Court does not have jurisdiction to try the complaint as the petitioner carried on his business at Kolkata and was sanctioned loan at Kolkata and issued the alleged cheque at Kolkata.
On the other side, learned counsel for the Respondent contends that on 30-04-2008, a sum of `30,00,000/- (rupees thirty lacs only) was sanctioned in favour of the petitioner. Thereafter, a loan agreement was executed. The petitioner was to repay the loan by way of EMIs @ `1,09,698/- for a tenure of 36 months. After receipt of the loan facility, the CRM-M No.34763 of 2012 (O&M) ::3::
petitioner paid some of the EMIs and thereafter, the ECS/Cheques issued against the EMIs stared bouncing. The petitioner in discharge of the aforesaid loan liability issued a cheque no.203015 date 27-07-2010 for a sum of `30,00,000/- in favour of the respondent. Relying on the assurances, the respondent deposited the cheque for encashment with its banker. The cheque was bounced and was returned unpaid with the remarks "Payment stopped by drawer" vide memo dated 10-08-2010. The said factum of dishonour of cheque was intimated to the respondent company by its banker vide cheque return memo dated 10-08-2010. The trial Court, Gurgaon after going through the complaint, evidence produced in support of the complaint and the documents, vide order dated 13-10-2010 issued summons / process to the petitioner for his appearance.
In support of his contentions, learned counsel for the petitioner has placed reliance on the judgment in the matter of Harman Electronics vs. National Panasonic (2009) 1 SCC 720 to contend that jurisdiction in a criminal case is governed by the provisions of Code of Criminal Procedure and not on common law principle and it was held that the Delhi High Court had no jurisdiction to try the case.
Learned counsel for the respondent has argued that the complainant can choose any of the Courts having jurisdiction over anyone of the local areas within the terrotorial limits of which any one of the several acts was done. In the circumstances, the petitioner is not entitled for quashing of complaint and other consequent proceedings as the trial is going on. In support of his contentions, learned counsel for the respondent also placed reliance on the judgment in the matter of Apex Health Care CRM-M No.34763 of 2012 (O&M) ::4::
Private Limited and others vs. M/s Alchemist Hospitals Limited reported in 2012(5) R.C.R. (Criminal) 694 in which this Court has passed a detailed judgment the relevant paras of which are quoted herein below:-
"23. Learned counsel for the petitioners, Mr. Cheema has referred to the provisions of Section 202 Cr.P.C.
to contend that the trial Court while issuing the summoning order has not held an enquiry as such the summoning order against petitioners No.2 and 3, who are residents of New Delhi, is liable to be quashed. He has relied upon the judgment of S.K. Bhowmik Vs. S.K. Arora and another, 2007 (4) RCR (Crl.) 650, in which the scope of amended Section 202 Cr.P.C. w.e.f June 23, 2006 was considered and it was held that in a criminal complaint against an accused who resides beyond the jurisdiction of a Magistrate makes it mandatory upon the Magistrate to hold an enquiry under Section 202 Cr.P.C. (as amended) to find out whether or not there was sufficient grounds for proceedings against the accused. In the said judgment it was held that examination of complainant and witnesses as envisages under Section 200 Cr.P.C. cannot be equated or to be a substitute for the enquiry/ investigation required under Section 202 Cr.P.C.. The nature of the enquiry, required to be held under Section 202 Cr.P.C. to see is prima facie case was made out or not.
24. I have considered the ratio of the said judgment and I am of the opinion that the criminal complaint under Section 138 of the Act is governed by the provisions of the Negotiable Instruments Act as well as the provisions of Cr.P.C. under Sections 177, 178 and 179 Cr.P.C. for the purpose of territorial jurisdiction. Section 177 Cr.P.C. provides that every CRM-M No.34763 of 2012 (O&M) ::5::
offence shall ordinarily be enquired into and tried in a Court within whose jurisdiction it was committed. Section 178 Cr.P.C. provides that if there is uncertainty as to where, among different localities, the offence would have been committed the trial can be held in a Court having jurisdiction over any of those localities. Section 179 Cr.P.C. further stretches the jurisdiction of the Court holding that 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 within whose jurisdiction such act has been done or such consequence has ensued. The matter regarding jurisdiction came up before the Apex Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another, (1999) 7 SCC 510. The Apex Court held that 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. 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 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.
25. If the five different acts were done in five different localities, any one of the courts exercising jurisdiction CRM-M No.34763 of 2012 (O&M) ::6::
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.
26. The objective of Section 202 Cr.P.C. was to ascertain whether grounds exist for proceeding against a person who has been arraigned as an accused in a private complaint. The Magistrate under Section 202 Cr.P.C. has got an authority to postpone the issue of process and hold an enquiry himself or direct the investigation to be made by police officer or by any such person as he thinks fit. The word "investigation" to be made by police officer, indicates that the scope of enquiry is connected with an offence which is mentioned in the complaint and could be investigated by a police officer. The offence under Section 138 of the Act is a non-cognizable offence as per Section 2 (l) Cr.P.C. in which police officer has got no authority to arrest without warrant. By necessary implication from the language used in amended Section 202 Cr.P.C., it is apparent that the provisions of Section 202 Cr.P.C. enabling a Magistrate to hold an enquiry and postpone the issuance of process is not applicable to the proceedings under Section 138 of the Act.
27. Taking into consideration the nature of the proceedings under Section 138 of the Act and the law laid down in K. Bhaskaran's case (supra) that the complainant can choose any one of the course having CRM-M No.34763 of 2012 (O&M) ::7::
jurisdiction over any one of the local areas in which any one of the five acts i.e. drawing of the cheque; presentation of the cheque to the bank; returning the cheque unpaid by the drawee bank; giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and failure of the drawer to make payment within 15 days of the receipt of the notice, the provisions of Section 202 Cr.P.C. cannot be said to be applicable in proceedings under Section 138 of the Act, otherwise it would defeat the objectives of the provisions of Section 138 of the Act. However, a Magistrate exercising powers under Section 138 of the Act can himself, while appreciating the preliminary evidence, hold an enquiry for his satisfaction regarding the prima facie commission of offence under Section 138 of the Act when the respondent/ accused is resident of different locality, keeping in mind that the list of the accused has not been unnecessarily enlarged with an oblique motive to cause harassment to the accused described as residents of distant areas but holding of an enquiry by police in every case under Section 138 of the Act under Section 202 Cr.P.C. is not the rule of law. It is not out of place to mention here that the judgment in K.Bhaskaran's case (supra) still holds the field despite a little variance in one of the five circumstances in the recent judgment by the Hon'ble Supreme Court in Harman Electronics Private Limited and another Vs. National Panasonic India Private Limited, (2009) 1 SCC 720, in which it was held that the single factor of issuance of notice under Section 138 (b) of the Act will not ipso facto tentamount to conferring a jurisdiction on the Courts of the area from where only notice has been issued.
CRM-M No.34763 of 2012 (O&M) ::8::
Besides this, the judgment in S.K. Bhowmik's case (supra) did not deal with a case constituting of non-
cognizable offences particularly offence under Section 138 of the Act. It is held that in the light of the judgment of K.Bhaskaran's case (supra), the ratio of the judgment of S.K. Bhowmik's case (supra) is not applicable in the complaint under Section 138 of the Act and the summoning order in complaint under Section 138 of the Act cannot be questioned solely on the ground of violation of provisions of section 202 Cr.P.C."
After hearing both the counsels at length and perusing the case file and considering facts of the case, I find myself in agreement with the learned counsel for the respondent. The trial Court has duly considered the preliminary, oral as well as documentary evidence and no interference is warranted in the impugned orders at this stage. I hesitate to give any opinion on merits as that may prejudice the case of the parties during trial.
Petition stands dismissed.
Since the main case has been decided, the pending criminal miscellaneous application, if any, also stands disposed of.
( AJAY TEWARI ) 22.05. 2013 JUDGE ashish