Delhi District Court
Feblas Impex Pvt. Ltd. vs . Fiayaz Ahmed on 6 May, 2011
CC No.1315/A/2010
Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed
IN THE COURT OF SH. VIPLAV DABAS,
MM02 (NORTH), DELHI
C.C.No.1315/A/10
M/S.FEBLAS IMPEX PVT. LTD.
...COMPLAINANT
VERSUS
FIAYAZ AHMED
....ACCUSED
ORDER
Dated : 06.05.2011
1. By this order, this Court proposes to dispose of the application for dismissal of complaint for want of jurisdiction, dated 05.03.2011 moved on behalf of the accused.
2. Brief facts necessary for the disposal of the present application are as under:
(a) The complainant has filed the complaint under Section 142 of the Negotiable Instruments Act R/w. Section 190 Cr.P.C. wherein the complainant alleged the dishonor of cheque amounting to Rs.50,000/- 1/10
CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed (Rupees Fifty thousand only). Upon summoning, the accused put in his appearance on 17.12.2005. The matter is fixed for cross examination of the complainant since 06.12.2006. On 05.03.2011, accused has moved the present application.
(b) The alleged cheque in question was drawn on Bombay Mercantile Co-operative Bank Limited, Varanasi Branch and the said cheque was presented for payment at Syndicate Bank, Sadar Bazar, Delhi.
(c) The complainant is a registered company having its Office in Delhi while the accused is situated in Varanasi, U.P.
(d) As per the present application, the cheque in question was issued and came for encashment in Varanasi Branch, accused address is of Varanasi and the complainant has taken the services of the accused at Varanasi. So a prayer to dismiss the complaint for want of jurisdiction has been made on behalf of the accused as this court has no jurisdiction to try and entertain the present complaint as no cause of action arose within the jurisdiction of this court.
(e) The complainant has averred in the complaint that the 2/10 CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed complainant has supplied the goods on consignment basis from Delhi, presented the cheque for encashment at Delhi, the demand notice was sent from Delhi and cause of action for filing the present complaint arose at Delhi within the territorial jurisdiction of this Hon'ble Court. Reply to the application is also filed by the complainant. Complainant denied that each and every transaction has taken place in Varanasi and as such this Hon'ble Court has no jurisdiction to entertain the present case. It is submitted by the complainant that the accused approached and requested the complainant to appoint him as Consignee and an agreement to this effect was executed between the parties at Delhi for a period of one year. The complainant supplied the material from Delhi and the accused issued and delivered the cheque in question at Delhi towards the discharge of his liabilities. The complainant presented the said cheque for encashment at Delhi and received the intimation at Delhi.
3. Arguments/submissions on behalf of accused/applicant as well complainant heard.
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CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed
4. Discussion This court is considering only the aspect of the power of MMs to return the complaint suo motu without touching the factual matrix of the present case conferring jurisdiction on this court. There is no provision for return of complaint in the Code of Criminal Procedure, 1973 except under Section 201 of the Code of Criminal Procedure, 1973 which applies at pre summoning stage and S322 of the Code of Criminal Procedure, 1973 which applies in an inter district territorial dispute within a State and not in metropolitan area or interstate transfer. Admittedly, Delhi is a metropolitan area. As per 16 (3) of the Code of Criminal Procedure, 1973 the jurisdiction & powers of every Metropolitan Magistrate extends throughout the metropolitan area. So, MM has jurisdiction over whole of metropolitan area. Delhi is divided into districts only for the purpose of administrative convenience. Moreover, as per proviso to Section 7 (1) of the Code of Criminal Procedure, 1973 Delhi being metropolitan area is an independent unitary sessions division and district. So, as per the Code of Criminal 4/10 CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed Procedure, 1973 Delhi is one district as a whole and therefore S322 of the Code of Criminal Procedure, 1973 cannot come to the rescue of the accused which applies in cases of states divided in various districts and not to metropolitan areas.
5. Return of complaint/dismissal of complaint can be considered at following stages:
(a). Return at pre-summoning stage:-Section 201 of Code of Criminal Procedure, 1973 provides that the MM can return the complaint at any time before passing of the summoning order upon satisfaction that matter is beyond jurisdiction. In ICICI Vs Subhash Chand Bansal, 160 (2009) DLT 379 Hon'ble Delhi High Court was pleased to uphold the order passed by Ld. MM directing return of the complaints u/s.138 of the Negotiable Instrument Act, 1881 on the very first date before summoning of the accused i.e. prior to the summoning of the accused. So there is no doubt as to the power of return at pre-
summoning stage for want of jurisdiction. But in the present case as cognizance and summoning order has already been passed so Section 5/10 CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed 201 of the Code of Criminal Procedure, 1973 is not applicable.
(b) Return at post summon stage : As per the Code of Criminal Procedure, 1973, MM is not empowered to return the complaints after summoning order is passed except u/s 322 of the Code of Criminal Procedure, 1973 which is applicable in inter district transfer within the same state only and Delhi being a metropolitan area S322 of the Code of Criminal Procedure, 1973 is not applicable.
(c) The question of return of complaint at post cognizance/ summoning stage can be further described in the light of the following three judgments.
(i) ICICI Vs Subhash Chand Bansal, 160 (2009) DLT 379:-In this case, following the mandate of Hon'ble Supreme Court as laid down in Adalat Prasad Vs. Roop Lal Jindal, (2004) 7 SCC 338 Hon'ble High Court of Delhi was pleased to hold that after taking cognizance of offence u/s.138 of the Negotiable Instruments Act, 1881 it is not open to MMs to suo motu return the complaint as it would amount to review of order which is barred under the Code of Criminal Procedure, 1973 6/10 CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed
(ii) Delhi High Court Legal Services Committee VS. Govt. of NCT of Delhi WP (C) No.11911/2009 order dated 23.09.2009 :-In this case the Hon'ble Delhi High Court directed the MMs to return all complaints u/s 138 of the Negotiable Instruments Act, 1881 even after having taken cognizance and summoning of accused for want of territorial jurisdiction using its power under Article 226 of constitution. In pursuance to this order, vide notification no.1384/ DHC/Gaz./G-3/Negotiable Instruments Act, 1881/2009 dated 25.09.2009 directions were given by Hon'ble High Court of Delhi to MMs for returning of complaints u/s.138 of Negotiable Instruments Act, 1881 even at post cognizance/summoning stage which are beyond the territorial jurisdiction of Delhi. Thus legal position as to return of complaints u/s.138 of the Negotiable Instruments Act, 1881 changed upon passing of this judgment and MMs got the power to return the complaints for want of territorial jurisdiction even after passing of summoning order.
(iii)India Bulls Financial Services Ltd. Vs Delhi High Court Legal Services CC 20840/2009 dated 17.12.2009:- People aggrieved by 7/10 CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed order passed in Delhi High Court Legal Services Committee's case (supra) approached Hon'ble Supreme Court under Article 136 of Constitution challenging the verdict. Hon'ble Supreme Court was pleased to admit the petition and directed that the cases, where the petitioners are the complainants, may not be returned, as directed in the impugned judgment. The SLP is yet to be disposed of. Hon'ble Justice Vipin Sanghi of Delhi High Court has taken into account the factum of above said SLP in Crl Rev P 170/2010 vide order dated 19.04.2010 and has opined that the outcome of the SLP be awaited. The passing of aforesaid order by Hon'ble Supreme Court has the effect of staying of the return of complaints by Magistrates at post cognizance/ summoning stage as directed by Hon'ble High Court of Delhi in High Court Legal Services Committee Vs. Govt. of NCT of Delhi and thus eclipsing the notification no.1384/DHC/Gaz/G-3/ Negotiable Instruments Act, 1881/2009 dated 25.09.2009 issued to the District Courts within Delhi in pursuance to which complaints beyond the jurisdiction of Delhi were directed to be 8/10 CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed returned even at post cognizance/summoning stage.
6. Further more u/s 462 of the Code of Criminal Procedure, 1973 it is provided that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the court of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
7. So, even if trial is conducted in wrong territory the same is protected u/s 462 of the Code of Criminal Procedure, 1973. In this case, the accused has not come out with any grounds which have occasioned the failure of justice till date. Moreover, the accused has been appearing since 2005 without raising any objection as to jurisdiction. The filing of this application at this stage after facing six years of trial when the same is about to conclude has constrained this court to infer that the present application is aimed at delaying the proceedings and is 9/10 CC No.1315/A/2010 Feblas Impex Pvt. Ltd. Vs. Fiayaz Ahmed not bonafide one.
8. In view of the aforesaid discussion and the fact that the application has been filed at post cognizance/summoning stage, this court is of the view that the present complaint cannot be dismissed by this court suo motu. Accordingly, the application for dismissal of complaint for want of jurisdiction, dated 05.03.2011 moved on behalf of the accused is hereby dismissed.
9. Put up for complainant's evidence on 07.07.2011.
Announced in the open court on (VIPLAV DABAS)
today 06.05.2011 MM02(N)/Delhi
06.05.2011
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