Delhi District Court
Shri Brij Mohan vs Shri Kushal Pal on 5 December, 2012
-1-
IN THE COURT OF MS. POONAM A. BAMBA
ADDITIONAL SESSIONS JUDGE-01
PATIALA HOUSE COURTS : NEW DELHI
Criminal Revision No. 70/12
Shri Brij Mohan
S/o Late Shyam Lal
R/o G-1/267, Dal Mill Road,
Uttam Nagar,
New Delhi - 110059 ... Petitioner
Versus
Shri Kushal Pal
S/o Shri Nand Kishore
R/o House No. A-2/34,
Holi Chowk, Uttam Nagar,
New Delhi - 110059 ... Respondent
Date of institution of the revision : 31.10.2012
Date of conclusion of arguments
and disposal : 05.12.2012
Revision u/s 397 of the Code of Criminal Procedure
against the impugned order of Ld. MM
dated 03.10.2012
ORDER
05.12.2012 1.0 Vide this revision the revisionist has challenged order of Ld. MM dated 30.10.2012, vide which notice under Section 251 Cr.P.C was framed.
2.0 Let me briefly mention the facts as per record. The revisionist had issued one cheque bearing no. 001675 dated CR No. 70/12 Page No. 1 of 8 Brij Mohan v. Kushal Pal -2- 18.05.2012 for Rs.3,00,000/- drawn on State Bank of Travancore, Parliament Street branch, New Delhi to the respondent/complainant Kushal Pal. The said cheque was returned with remarks "funds insufficient". The respondent then issued legal notice dated 31.05.2012 to the petitioner but no payment was made despite notice. The respondent/ complainant then filed a complaint under Section 138 Negotiable Instrument Act, 1881 ("N. I. Act" in brief). Learned Metropolitan Magistrate after recording pre-summoning evidence, summoned the petitioner/accused vide order dated 19.07.2012. On appearance of accused, the Ld. MM proceeded to frame notice vide order dated 03.10.2012, which is under challenge in this revision.
2.1 The revisionist has challenged the said order inter- alia, on the grounds that the learned Metropolitan Magistrate proceeded to frame notice despite his objections to the jurisdiction; Ld. MM totally disregarded the facts that the complainant as well as the revisionist are residing in Uttam Nagar; the alleged loan transaction took place in Uttam Nagar and there is nothing on record to confer jurisdiction on the learned Metropolitan Magistrate; the Court proceeded merely on the basis of mention of " Police Station Parliament Street"
on the complaint, although, the matter ought to have been filed in Tis Hazari Court; notice framed under Section 251 Cr.P.C is illegal and has been framed in exercise of jurisdiction not CR No. 70/12 Page No. 2 of 8 Brij Mohan v. Kushal Pal -3- vested in the learned Metropolitan Magistrate.
3.0 Ld. counsel for the respondent on the other hand argued that the cheque in question was drawn on State Bank of Tranvancore, Branch Office Parliament Street, New Delhi; the said bank did not honor cheque and returned the same for want of funds. Thus, the Ld. MM had jurisdiction to take cognizance of the complaint. Ld. counsel placed reliance upon the judgments "Harman Electronics Ltd. v. National Panasonic India Ltd., (2009) 1 SCC 720"" and "Shree Raj Travels and Tours Ltd.& Ors. v. Destination Club, Crl. MC 1056/2011 2011 DLT Criminal IV Page 398".
4.0 I have heard both the sides and have perused the record carefully.
5.0 It is noted that the Ld. MM after recording her satisfaction about prima face case punishable u/s 138 N. I. Act, being made out, had summoned the revisionist. The revisionist emphatically argued that the Ld. MM had no jurisdiction to summon / frame notice, pleading that both the parties are residents of Uttam Nagar and even alleged loan transaction took place in Uttam Nagar.
5.1 It may be mentioned that in K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr, (1999) 7 SCC 510, the CR No. 70/12 Page No. 3 of 8 Brij Mohan v. Kushal Pal -4- Hon'ble Supreme Court while dealing with the territorial jurisdiction of the Courts in relation to offence u/s 138 N. I. Act after considering Sections 177, 178 and Section 179 Cr.PC observed that the jurisdiction of the court which shall try an offence, is not an unexceptional or unchangeable principle. Section 177 lays down that every offence shall ordinarily be tried by a court within whose local jurisdiction it was committed. Thus, Section 117 itself has been framed by the legislation thoughtfully by using the precautionary word "ordinarily" to indicate that the rule is not invariable in all cases.
5.1.1 Hon'ble Supreme Court further noted that an offence may be completed in different localities and thus can be tried in any court having jurisdiction over the said localities. Hon'ble Court then laid down various components of offence u/s 138 N. I. Act. The observations of Hon'ble Supreme Court in this regard in paras no. 14 and 15 are reproduced hereunder for ready reference :
"14. 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) CR No. 70/12 Page No. 4 of 8 Brij Mohan v. Kushal Pal -5- 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.
15. 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 :
"178. (a) - (c) * * *
(d) where the offence consists of several acts done in different local area, it may be enquired into or tried by a court having jurisdiction over any of such local areas."
5.1.2 It is clear from Section 178 (d) Cr.PC that the complainant can choose any one of those courts having CR No. 70/12 Page No. 5 of 8 Brij Mohan v. Kushal Pal -6- jurisdiction over any one of the local areas within the territorial limits of which any one of the five acts, the components of the offence (u/s. 138 N.I. Act) took place.
5.2 In the instant case, the cheque in question was drawn on State Bank of Travancore, Parliament Street Branch, New Delhi, i.e. it was the drawee bank; cheque was returned unpaid by the drawee bank situated at Parliament Street, New Delhi, within the jurisdiction of the Ld. MM.
6.0 The respondent has also pleaded that the Ld. MM failed to appreciate the true facts. It would be pertinent to refer here to the judgment of Hon'ble High Court of Delhi in case R.P. G. Transmission Ltd. v. Sakura Seimitsu (I) Ltd. & Ors., 2005 Crl. L. J. 2862, wherein, it was observed that :
"....The procedure given in Chapter XX for trial of summons cases by the Magistrate starts with Section 251 which provides for substance of accusation to be stated as soon as the accused being summoned appears before the Magistrate. The Magistrate is also required to ask the accused whether he pleads guilty or has any defence to make. No formal charge is required to be framed.CR No. 70/12 Page No. 6 of 8
Brij Mohan v. Kushal Pal -7- ....
....
....There is no provision preceding
Section 251 allowing the accused to
make any submission after being
summoned but before being
questioned as provided under Section 251 of the Code. Thus, it looks that it is imperative for the Magistrate to immediately frame a notice under Section 251 without considering if the accused can be discharged as is permissible under Sections 227 or 239 of the Code."
6.1 In view of the above, the Ld. MM was not required to go into the defence of the respondent at the time of framing of notice. The revisionist can raise all the contentions / take defence, as pleaded in the present petition, before the Ld. MM.
7.0 For the aforesaid reasons, the revisionist has failed to point out any illegality in the order of Ld. MM. Hence, I find no merit in this revision petition and the same is dismissed.
8.0 It may be clarified that no observation made in this order would have any bearing on the merits of the case.
CR No. 70/12 Page No. 7 of 8Brij Mohan v. Kushal Pal -8- Trial Court Record be sent back along with the copy of this order.
Revision file be consigned to the Record Room.
Announced in open Court (Poonam A. Bamba) Date : 05th December, 2012 ASJ-01/PHC/New Delhi CR No. 70/12 Page No. 8 of 8 Brij Mohan v. Kushal Pal