Delhi District Court
Sh. K. Keshava Raju vs Sh. Ashok Kumar Aneja on 6 February, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Sh. K. Keshava Raju
S/o Late Sh. K. Vengma Raju
R/o 98 2nd Cross, Dallas Colony
J. P. Nagar, IV Phase
Bengaluru, Karnataka
...Petitioner/Revisionist
V E R S U S
1. Sh. Ashok Kumar Aneja
S/o Late Sh. Ram Gopal Aneja
R/o H. No. 215, 2nd Floor
Kailash Hills
New Delhi
2. State ... Respondents
Criminal Revision No. : 17/13(original no. 92/12)
Date of institution/transfer : 01.11.2012/14.01.2013
Date of reserving order : 31.01.2013
Date of pronouncement : 06.02.2013
Computer ID No. : 02406R0032712013
J U D G M E N T
The petitioner herein is aggrieved by the order dated 06.07.2012 of the Ld MM concerned, Saket Courts, New Delhi vide which he has been summoned as an accused U/s 138 of the N.I. Act 1881 (as amended up to date) on a complaint filed by the respondent no. 1 herein Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
2(hereinafter referred to as respondent) in case titled Ashok Kumar Aneja Vs. K. Keshava Raju, CC NO. 413/NA/2012.
2. The facts of the case in brief, as far as the same are relevant for the purpose of disposal of this revision petition, are that an agreement/contract dated 16.11.2010 was executed between the parties regarding the sale of one property bearing no. 77/1 situated at Konthanur Village, Uttarahalli, Hobli, Bengaluru, South Taluk, admeasuring 9720 sq. ft. owned by the petitioner herein. The total sale consideration for the above property was fixed at Rs. 2 crores and the respondent had paid a sum of Rs. 1 crore to the petitioner as a part of the above sale consideration through different instruments/modes and it was agreed between the parties that the balance sale consideration of Rs. 1 crore was to be paid before the cut-off date of 30.06.2012. However, an option was given to the petitioner herein, who is the owner of the above property, to rescind the above agreement/contract within a given period/duration from 01.06.2012 to 15.06.2012 and in that case he was made liable to refund the above advance amount of Rs. 1 crore to the respondent and also to pay him another amount of Rs. 1 crore as compensation for rescission of the above agreement.
3. In accordance with the above clause, the petitioner had subsequently rescinded the above agreement/contract and the advance amount of Rs. 1 crore Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
3was refunded to the respondent by crediting the said amount directly in the account of the respondent with PNB Branch, Vasant Vihar, New Delhi and the petitioner had also issued 29 post-dated cheques of different amounts and of different dates in favour of the respondent, all drawn at PNB, Bengaluru, as mentioned in detail in para 12 of the original complaint contained in the TCR attached herewith, totaling for a sum of Rs. 80 lacs, in discharge of his liability to pay the agreed compensation amount of Rs. 1 crore in terms of the above sale agreement, and the balance agreed amount of Rs. 20 lacs as compensation was to be subsequently transferred/credited in the above account of the respondent. However, it is stated that the above cheques were subsequently dishonoured when the same were presented by the respondent for encashment. This revision petition pertains to 3 cheques bearing nos. 208026, 206098 and 206097 all dated 4.04.2012 for Rs. 1,25,000/-, Rs. 10,00,000/- and Rs. 10,00,000/- respectively drawn on the above said bank, out of the above 29 cheques, which stood dishonoured and in respect of which the respondent herein had filed the above complaint resulting into the summoning of the petitioner as an accused. Seven other connected complaints were also filed by the respondent against the petitioner pertaining to 19 other cheques and connected revision petitions pertaining to those cheques are also being disposed of separately by this court.
Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
44. The grievance of the petitioner is that since no part of cause of action had arisen within the territorial limits of the courts of Delhi, the courts at Delhi has no jurisdiction to entertain and try the above complaint cases at Delhi and the cause of action, if any, in favour of the respondent had arisen only within the territorial limits of the courts at Bengaluru, Karnatka. It is his contention that the above immovable property is admittedly located in Bengaluru, the above sale agreement dated 16.11.2010 was executed at Bengaluru, all the above 29 cheques were admittedly issued at Bengaluru and the same were also drawn on PNB Bengaluru and returned unpaid by the drawee bank only at Bengaluru and hence, the courts at Delhi cannot have jurisdiction merely because the above cheques were presented for encashment at Delhi or the demand notice was given in respect of the above cheques from Delhi. He has also relied upon judgments of the Hon'ble Supreme Court in cases K. Bhaskaran Vs. Shankaran Vaidhayan and Anr 1999 (7) SCC 510 and Harman Electronics Pvt Ltd Vs. National Panasonic India Pvt Ltd 2009 (1) SCC
720.
5. On the other hand, the case of the respondent is that since the above cheques were presented for encashment in Delhi in the accounts of the respondent at Delhi and a legal notice of demand was also given to the petitioner from Delhi, the courts at Delhi has jurisdiction and hence there is no infirmity or illegality in the impugned order Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
5dated 06.07.2012 of the Ld MM concerned vide which the above petitioner has been summoned as an accused.
6. Though the Ld counsel for respondent Sh. Tarun Gumber has also objected to this revision petition on the aspect of limitation while submitting that the same has not been filed within the prescribed period of 30 days from the date of passing of the impugned order and he has also referred to a judgment of the Hon'ble Supreme Court in case Municipal Board Pushkar Vs. State Transport Authority, Rajasthan AIR 1965 SC 458 on this aspect, but the Ld counsel for petitioner Sh. Kapil Kumar has rightly submitted that the period of limitation had started not from the passing of the above impugned order but it had actually started from the date of knowledge or communication of the said order by or to the petitioner. He has also referred to one recent judgment of our own Hon ' b le High Court in case of Rajesh Garg Vs Tata Tea Ltd. & Anr. dated 18.02.2011 in Crl. Revision No. 688/2003 in this regard wherein, after discussing various judgments of the different Hon' b le High Courts as well as of the Hon ' b le Supreme Court, mostly given thereafter, it was held by their lordships that the above prescribed period of 30 days will only commence from the date of knowledge of the impugned order and not from the passing thereof. It is not the contention of the Ld counsel for the respondent that this revision petition has not been filed within the prescribed period of 30 days taken from the date of Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
6communication of the said order to the petitioner. Hence, this revision petition is held to have been filed within limitation.
7. Now returning back to the issue of territorial jurisdiction, in the case of K. Bhaskaran, Supra while discussing the essential ingredients for the commission of an offence U/s 138 of the N.I. Act and the provisions of Sections 177 to 179 of the Cr.P.C, with reference to the place having jurisdiction to try the said offence, the following observations were made by their lordships:-
" 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 of 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 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:
Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.7
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.
Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising 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 " .
8. In the subsequent case of Harman Electronics, Supra being relied upon by Ld counsel for the petitioner, the above propositions of law were again reiterated by the Hon'ble Apex Court, but while interpreting the above provisions of N.I. Act as well as Cr.P.C and the above five acts/components of the said offence, it was held by the Hon'ble Supreme Court that a distinction has been borne in mind between the ingredients of an offence and the commission of a part of the offence and no jurisdiction can be said to be at a place from where only a notice of demand has been served upon the accused as it Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
8is not the place from where such notice is given which has the jurisdiction, but it is the place where the notice has been actually served and the payment has not been made by the other party. Hence, the Hon'ble Supreme Court in the said case had set aside the concurrent orders of the court of Ld MM and Ld ASJ at Delhi summoning the petitioner as an accused in a case U/s 138 of the N.I. Act merely on the basis that the notice of demand was given from Delhi.
9. During the course of arguments, the Ld counsel for the petitioner has also relied upon two other judgments, i.e. one dated 22.08.2012 in case Rajneesh Singhal Vs. M/s Dig Vijay Seeds Pvt. Ltd, Crl. M.C. No. 1688/2011 and the other dated 21.09.2011 in case Shree Raj Travels & Tours Ltd Vs. Destination of the World, Crl. M.C. No. 1056/2011 and various other connected matters, both given by the Hon'ble Delhi High Court. In both the above cases, the Hon ' b le High Court, while appreciating the propositions of law laid down in the cases of K. Bhaskaran and Harman Electronics, Supra and also in one other case of Shri Ishar Alloy Steels Ltd Vs. Jayaswals Neco Ltd 2001 (3) SCC 609, had held that no jurisdiction had arisen within the territorial limits of Delhi Courts as all the acts constituting or comprising the ingredients of the above offence U/s 138 of the N.I. Act had taken place outside the jurisdiction of Delhi Courts and no jurisdiction can arise for the above said offence at a place merely by the presentation of the cheque at that place or by giving of a Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
9notice of demand from the said place.
10. In the case of Shree Raj Travels and Tours, Supra while referring to the propositions laid down in the above two cases of K. Bhaskaran and Harman Electronics, Supra the Hon'ble High Court had even come to a conclusion that in-fact clauses (2) & (3) laid down in the case of K. Bhaskaran, Supra meant one and the same thing and the place of presentation of a cheque can only mean the presentation of the cheque on the drawee bank and the territorial jurisdiction lies at the place where the drawee bank is located. In those matters the question before the Hon'ble High Court was whether the courts at Delhi has jurisdiction simply because the cheques in question were presented for encashment in Delhi. The Hon ' b le High Court had answered the above question in negative while referring to the law laid down by the Hon ' b le Supreme Court in the case of Shri Ishar Alloy, Supra wherein it was held by the Hon'ble Supreme Court, while dealing with the prescribed period for presentation of a cheque under the said Act, that the presentation of the cheque has to be on the drawee bank and not on the bank of the drawer of the cheque and since in that case the cheque in question was not presented on the drawee bank within the prescribed validity period of six months of the said cheque, the complaint was held to be not maintainable for meeting out the requisite ingredients. Though the judgment in the case of Ishar Alloy, Supra was Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
10given in the context of the period of limitation prescribed for the presentation of the cheque, but the ratio of the above judgment was applied in the cases of Rajneesh Singhal and Shree Raj Travels & Tours Ltd, Supra and it was held in these cases that the territorial jurisdiction also lies at the place where the drawee bank is located and not the bank of the drawer. Hence, if we go by the components/acts of the above offence as laid down by the Hon' b le Supreme Court in the case of K. Bhaskaran, Supra and as interpreted by the Hon' b le Delhi High Court in the cases of Rajneesh Singhal and Shree Raj Travels & Tours Ltd, Supra in these cases also the courts at Delhi have no jurisdiction and it is the courts at Bengaluru which have the territorial jurisdiction as all the above acts had taken place within the territorial limits of the courts at Bengaluru and the Delhi Courts cannot have any jurisdiction merely because the cheques were presented for encashment in Delhi and the legal notices of demand were given from Delhi, as has been argued by Ld counsel for the petitioner.
11. However, the Ld counsel for respondent has referred to and relied upon three other judgments of our own High Court itself which have been given in cases Hartaj Singh Vs. Godrej Agrovet Ltd & Anr dated 31.05.2010 in Crl. M.C. No. 50/2010, Patiala Casting P. Ltd & Ors Vs. Bhushan Steel Ltd 172 (2010) DLT 6 dated 11.08.2010 and GE Capital Transportation Financial Services Ltd Vs. Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
11Rahisuddin Khan 2011 VIII AD (Delhi) dated 09.09.2011 respectively. In all the three cases Hartaj Singh, Patiala Casting and GE Capital Transportation, Supra the propositions of law laid down by the Hon' b le Supreme Court in the above three cases of K. Bhaskaran, Ishar Alloy and Harman Electronics, Supra were discussed and appreciated. It was held by their lordships in the case of Hartaj Singh and Patiala Casting, Supra that since the cheque was presented for encashment at Delhi, the court at Delhi has jurisdiction to entertain and try a complaint U/s 138 of the N.I. Act and in case of Hartaj Singh, Supra there were also found some disputed facts about the jurisdiction and in case of Patiala Casting, Supra the notice of demand was also given from Delhi. In both the above cases, the judgment in case of Harman Electronics, Supra was differentiated for the reasons that it was not clear in the said case as to whether the cheque of that case was actually presented in Delhi or not. In the third case of GE Capital Transportation, Supra also all the existing law on the subject, as pronounced by different High Courts as well as the Hon' b le Supreme Court, was appreciated and their lordships had come to the conclusion that the court at Delhi has jurisdiction in such a case as the cheque was presented for encashment in Delhi, cleared at par in Delhi and the legal notice of demand was also given from Delhi.
12. Since this court is a court subordinate to the Hon ' b le Delhi High Court, it is not supposed to re-write Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
12or re-interpret the law on the subject and has simply to follow the dictum laid down by the Hon' b le High Court as well as by the Hon' b le Supreme Court. The above judgments of the Hon' b le Supreme Court being relied upon by Ld counsel for the petitioner have already been discussed and appreciated in detail in the case of GE Capital Transportation, Supra. Though the judgment of Hon' b le Delhi High Court in case Shree Raj Travels, Supra being relied upon by Ld counsel for petitioner is subsequent in time to the above three judgments of the Hon' b le Delhi High Court being relied upon on behalf of respondent, as it is dated 21.09.2011 whereas the judgments relied upon by the respondent are dated 31.05.2010, 11.08.2010 and 09.09.2011, but the Ld counsel for respondent has also filed on record a copy of one order dated 16.12.2011 of the Hon' b le Supreme Court passed in SLP Crl. Nos 9241-9255/2011 filed against the above judgment of the Hon ' b le High Court and vide the said order, the Hon' b le Supreme Court has already stayed the return of the criminal complaints U/s 138 of the N.I. Act of those cases filed at Delhi, as was directed by the Hon' b le High Court in the said case of Shree Raj Travels and Tours, Supra. Hence, the operation of the above judgment of the Hon ' b le High Court dated 21.09.2011 being relied upon by Ld counsel for the petitioner has virtually been stayed by the Hon' b le Supreme Court.
13. Moreover, the first judgment which has been Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
13referred on this aspect by any of the above two counsels before this court is dated 31.05.2010 and is in case of Hartaj Singh, Supra and all the other judgments of the Hon ' b le Delhi High Court being referred on the subject are subsequent to the same. All the above judgments have been given by a single bench of our Hon' b le High Court and as per the law on this aspect, as also discussed in detail in case of GE Capital Transportation, Supra it is the judgment which is pronounced prior in time which is to be held binding, unless the subsequent judgment has been given by a larger bench.
14. While dealing with the above five ingredients of the commission of the offence punishable U/s 138 of the N.I. Act, with reference to the territorial jurisdiction for the same, it was held by their lordships in the case of GE Capital Transportation, Supra that in terms of the propositions of law laid down by the Hon' b le Supreme Court in case of K. Bhaskaran, Supra the place where the cheque has actually been presented for encashment as well as the place from where a notice of demand is served or given by the complainant has the jurisdiction to entertain and try such a complaint and the law laid down in case of K. Bhaskaran, Supra has to be followed by all the courts, till the above judgment given by a two bench of the Hon ' b le Supreme Court is reversed, overruled or modified by a larger bench. In case of GE Capital Transportation, Supra there was also one other reason to uphold the Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.
14jurisdiction of the Delhi Court as the cheque involved in this case was cleared and encashed through the clearing at par system, which is also stated to have been done in the present case, though not specifically alleged in the complaint.
15. In view of the above, I hold that there is no illegality, impropriety or infirmity in the impugned order dated 06.07.2012 of the Ld MM concerned vide which the petitioner herein was summoned as an accused for an offence U/s 138 of the N.I. Act on account of dishonour of the above cheques. This revision petition as well as the connected revision petitions are, therefore, being dismissed. Let a copy of this judgment, alongwith the TCR, be sent back to the Ld trial court. The parties are directed to appear before the Ld MM concerned on 28.02.2013 at 11.00 AM for further proceedings.
File of the revision petition be consigned to record room.
Announced in the open
court on 06.02.2013 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
Cr. No. 17/13 Sh. K. Keshava Raju Vs. Sh. Ashok Kumar Taneja & Anr.