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2013 DIGILAW 1124 (KAR)

Mukesh Poddar v. V. C. Maini

2013-09-19

A.S.BOPANNA

body2013
JUDGMENT 1. The petitioner is before this Court seeking for the following reliefs: "(a) to declare that the filing of the complaint on 08.06.2011 by the first respondent in the Court of the Additional Chief Metropolitan Magistrate, New Delhi numbered "126/11" is vexations frivolous, mala fide and wholly misconceived for the reasons stated in the body of the petition; (b) to issue a writ in the nature of prohibition or any other writ or direction restrain the Police Officer, Police Station, Crime Branch, AE Cell, R.K. Puram, New Delhi, from investigating into any offence in Crime/FIR No.42 of 2012 pursuant to the Orders in "Case No.126/11"; (c) to issue a writ in the nature of certiorari or any other writ or direction quashing the proceedings in the complaint dated 08.06.2011 filed by the first respondent in the Court of the Additional Chief Metropolitan Magistrate, Saket Courts, New Delhi, as per Annexure-B being investigated in F.I.R. No.42 of 2012 by the Police Officer, Police Station, Crime Branch, A.E.Cell, R.K.Puram, New Delhi. IN THE ALTERNATIVE, (d) to issue a writ in the nature of mandamus or any other writ or direction directing the respondent Nos.2 and 3 to transfer the complaint in "Case No.126/11" as per Annexure-B being investigated in Crime/FIR No.42 of 2012 dated 28.03.2012 by the Police Officer, Police Station, Crime Branch, A.E. Cell, R.K. Puram, New Delhi to the Officer-in-charge of the Police Station, Madivala Police Station in Bangalore or to any other Police Station as the Commissioner of Police, Bangalore City may Direct." 2. The brief facts leading to the above petition is that the petitioner is one of the Directors of the Company known as M/s Radhamani Exports Ltd. In the course of the business transaction, the first respondent visited the petitioner's unit on 14.01.2010 and ordered to consign cotton shirts for the value of Rs.33,00,000/- to M/s Hemanth International, E-16/931 and 932, Main Tank Road, Karol Bagh, New Delhi-110 005 and M/s Poonam Enterprises, E-16/930, Main Tank Road, Karol Bagh, New Delhi - 110 005. With regard to the transaction entered into between them certain differences and disputes have arisen. According to the first respondent, on receipt of the consignment, it was found that the shirts sent were of inferior quality and did not match the order which was placed for supply of the shirts. With regard to the transaction entered into between them certain differences and disputes have arisen. According to the first respondent, on receipt of the consignment, it was found that the shirts sent were of inferior quality and did not match the order which was placed for supply of the shirts. Since substantial amount was paid and the first respondent felt cheated, he filed a complaint at Crime Branch Office in R.K. Puram, New Delhi and as no action had been taken for registering the FIR, the first respondent filed an application under Section 156(3) read with Section 190 and Section 200 of the Code of Criminal Procedure, 1973, in the Court of Additional Chief Metropolitan Magistrate, New Delhi. The learned Additional Chief Metropolitan Magistrate by the order dated 29.02.2012 directed the Station House Officer to register the FIR under appropriate provision of IPC and investigate the `matter as per law. 3. Pursuant thereto, the Sub-Inspector of Police, Economic Offences Wing, Police Station, R.K. Puram, New Delhi, registered the case in Crime FIR No.42 of 2012 for the offences punishable under Section 406 and 420 of IPC. On 18.03.2013 the Sub-Inspector, A.E. Cell, Crime Branch, Sector-8, R.K. Puram, New Delhi, issued a notice under Section 91 of Cr.P.C. to the petitioner in the process of investigation. The petitioner contends that the whole case sought to be made out against the petitioner is false and foisted with ulterior motive. 4. The first respondent through the statement of objections, apart from seeking to make out the offence against the petitioner has also questioned the maintainability of the petition before this Court. 5. In that view of the matter, either to consider the prayers (a) to (c) by adverting to the merits of the case sought to be made out or in the alternative to direct the Police authorities investigating the complaint based on the directions issued by the learned ACMM at New Delhi to transfer the same to Bangalore, the question of the jurisdiction of this Court and the scope of this petition needs to be considered at the outset keeping in view the provision contained in Article 226(2) of the Constitution of India and the other relevant provisions. 6. Heard Sri S.G. Bhagavan, learned counsel for the petitioner and Sri P.P. Khurana, learned senior counsel along with Sri P.N. Manmohan, learned counsel for the first respondent and perused the petition papers. 7. 6. Heard Sri S.G. Bhagavan, learned counsel for the petitioner and Sri P.P. Khurana, learned senior counsel along with Sri P.N. Manmohan, learned counsel for the first respondent and perused the petition papers. 7. Learned counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court in the case of Navinchandra N. Majithia -vs-State of Maharashtra and Others [JT 2000 (10) SC 61] wherein the issue as to whether the High Court of Bombay had the jurisdiction to issue writ under Article 226 of the Constitution in any step taken or to be taken pursuant to the FIR registered by the Shillong Police in the State of Meghalaya arose for consideration. On detailed discussion, it was held that the mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State nor can any person create a fake cause of action or concoct one by simply getting into the territorial limits of another State. It is further held that the High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction and it will depend on the facts and circumstance of the case. Learned counsel for the petitioner has further relied on the order passed in W.P.No.1651/2007 (GM-RES) dated 09.07.2008 which was upheld in W.A.No.1356/2008 (GM-RES) by the judgment dated 31.08.2012 wherein it is held that when a major portion of the cause of action has arisen within the territorial jurisdiction of one State, even if minor cause of action had arisen in respect of any State, the Investigation has to be done only in a place where major portion of the cause of action arose. On the facts of that case, it was held that the entire cause of action had arisen within the territorial limits of Bangalore and no part of cause of action had arisen within the jurisdiction of Patna in the State of Bihar. Hence, the direction to transfer the compliant to Bangalore was upheld. 8. Learned senior counsel for the first respondent on the other hand relied on the decision of the Hon'ble Supreme Court in the case of Mosaraf Hossain Khan - vs-Bhagheeratha Engg. Hence, the direction to transfer the compliant to Bangalore was upheld. 8. Learned senior counsel for the first respondent on the other hand relied on the decision of the Hon'ble Supreme Court in the case of Mosaraf Hossain Khan - vs-Bhagheeratha Engg. Ltd. and Others [ (2006) 3 SCC 658 ] wherein it is held that while exercising the jurisdiction under Articles 226 and 227 of the Constitution, the High Courts should not ordinarily interfere with an order taking cognizance passed by a competent Court of law except in a proper case. It is further held that only such High Court within whose jurisdiction the order of the Subordinate Court has been passed would have the jurisdiction to entertain an application under Article 227 of the Constitution unless it is established that the entire cause of action arose within the jurisdiction thereof. On reference to Section 177 and 178 of the Code of Criminal Procedure and on consideration of the facts arising therein, it was noticed that no part of the cause of action had arisen in the State of Kerala and therefore it was held that the Kerala High Court had no jurisdiction to entertain the writ petition as no part of cause of action arose within its jurisdiction. Another decision in the case of Asit Bhattacharjee vs- Hanuman Prasad Ojha and Others [(2007) 3 SCC (Cri) 31] was relied upon, wherein while considering the correctness or otherwise of the order of the Division Bench of the Allahabad High Court directing that the FIR be transmitted from Kolkata in the State of West Bengal to an appropriate Police Station in the State of Uttar Pradesh, the Hon'ble Supreme Court no doubt did not find the need to set aside the order since it had already been complied with by the State of West Bengal. However, the entire conspectus relating to jurisdiction with reference to Sections 156(3), 177, 178 and 181 of the Code of Criminal Procedure was discussed and the Hon'ble Court was of the view that even if a part of the cause of action has arisen, the Police Station concerned situate within the jurisdiction of the Magistrate empowered to take cognizance under Section 190(1) of the Code of Criminal Procedure, will have the jurisdiction to make investigation. The necessary ingredients for proving criminal offence must exist in a complaint petition and such ingredients of offence must be referable to the places where the cause of action in regard to commission of offence has arisen. A cause of action as understood in its ordinary parlance may be relevant for exercise of jurisdiction under Clause (2) of Article 226 of the Constitution of India, but its definition in strict sense may not be applicable for the purpose of bringing home a charge of criminal offence. On the facts of that case, it was held, though major part of the offences took place outside the jurisdiction of Chief Metropolitan Magistrate, Calcutta, even if a part of the offence committed was within the jurisdiction of that Court, the High Court of Allahabad should not have interfered in the matter. 9. Both the decisions relied on by the learned senior counsel are passed after referring in detail to the decision in the case of Navichandra N. Majitria relied on by the learned counsel for the petitioner. In that view, a cumulative analysis of the decisions will crystallize the legal position thus. If a FIR is registered in a police station of 'A-State' and if the complaint does not disclose even a part of the cause of action having arisen in 'A-State', but is relatable to 'B-State', the High Court situate in 'B-State' would have jurisdiction not only to entertain a writ petition under Articles 226 and 227 of the Constitution but also to direct the authorities of 'A-State' to transmit the FIR to the appropriate Police Station in 'B-State' for further investigation or even to examine on merits and quash the proceedings in an appropriate case if no offence is made out. On the other hand, if the complaint discloses that the alleged offence has been committed both in 'A-State' and 'B-State' in terms of Sections 177 and 178 of Cr.P.C., the police of either State would have jurisdiction and on such complaint lodged in 'A-State', if the investigation has commenced, though the writ petition would be maintainable in terms of Article 226 (2) of the Constitution in 'B-State', that High Court would not interfere in exercise of power under Article 227 even if a major part of the cause of action for the complaint has arisen within its jurisdiction so long as it finds that at least a portion of the cause of action has also arisen within the jurisdiction of 'A-State' where the investigation is taken up and that too when a Magistrate's Court subordinate to the High Court of 'A-State' has entertained a complaint and directed investigation as provided under Section 156(3) of Cr.P.C. 10. Keeping this legal position in the backdrop, the facts in the instant case is to be adverted by taking note of the complaint. The two Directors of M/s. Radhamani Exports Ltd., Bangalore, are arrayed as the Accused to the compliant filed by the first respondent herein. One of the accused arrayed therein is the petitioner herein. The case put forth is with regard to the representative of the Accused visiting the shop of the complainant during December 2009 and representing about very high end readymade shirts being manufactured by M/s. Radhamani Exports Ltd., and the same to be supplied at Delhi. As invited by him the complainant had visited the unit at Bangalore on 14.01.2010. On showing samples of high fashion shirts and the same being approved, an invoice was raised by the Accused on 18.01.2010 for Rs. 33,00,000/-. The complainant on reaching back Delhi remitted the said amount to M/s. Radhamani Exports Ltd., through banking channels and an additional amount of Rs. 51,000/-was also paid. A further sum of Rs.8,00,000/-was also paid on 05.02.2010. The consignment was sent on 21.01.2010 and delivered to the complainant on 31.01.2010. On receiving the consignment, it was found that the shirts were of low quality. Subsequent consignments were also sent from 30.01.2010 to 08.02.2010. 51,000/-was also paid. A further sum of Rs.8,00,000/-was also paid on 05.02.2010. The consignment was sent on 21.01.2010 and delivered to the complainant on 31.01.2010. On receiving the consignment, it was found that the shirts were of low quality. Subsequent consignments were also sent from 30.01.2010 to 08.02.2010. Further details of the inferior quality of shirts and further assurance given by the Accused and the additional order placed and the further payment made is stated and it is alleged that the Accused failed to supply the goods against that order. The amount in that regard is stated to have been paid in part in the complainants shop and balance through RTGS on 09.03.2010. Thereafter negotiations had failed and complainant sent back 6155 shirts and sought for refund of the amount. It is alleged that despite e-mails and telephone calls, the Accused have avoided the complainant. Since it amounted to cheating, the complaint was filed on 24.06.2010 with the police. Since no action was taken, the complainant approached the learned Magistrate seeking investigation. 11. A perusal of the complaint would indicate that as per the allegations made therein the transaction was negotiated at Delhi as well as at Bangalore, the payment was dispatched from Delhi and received at Bangalore. The consignment was dispatched from Bangalore, received at Delhi and the fact that the shirts did not conform to the specifications was noticed at Delhi and the rejected pieces were dispatched from Delhi and repayment was demanded from Delhi but has not been paid. Hence in the instant facts, there can be no doubt that the cause of action had arisen at both Delhi as well as at Bangalore. Therefore, to the extent of the writ petition being maintainable before this Court in terms of Article 226 (2) of the Constitution, there can be no doubt whatsoever. 12. However, the moot question for consideration is; even if that be the position, should this Court exercise its power and discretion under Article 227 of the Constitution in the instant facts to interfere with the investigation either to direct transfer of the same to Bangalore or to quash the same since it is contended on behalf of the petitioner that the complaint does not disclose the requirement to allege cheating. In that regard, even if Sections 177 and 178 of Cr.P.C. are kept in perspective, from the narration in the complaint, the complainant had knowledge of the fact that the goods were not as per the specification as promised to him only when he received and opened the consignment at Delhi and the rejected material is also alleged to have been dispatched from Delhi for which the amount was not refunded. Hence the complainant would be justified in filing the complaint at Delhi as the offence of cheating, if proved would have been committed at Delhi also. Though for proving the offence being committed at Delhi, the transactions at Bangalore are also relevant and as it would also answer the requirement in section 178 of Cr.P.C., it cannot be said that the complaint should have been filed only in Bangalore. Hence the Magistrate's Court at Delhi was justified in entertaining the complaint to direct investigation as per Section 156 (3) Cr.P.C., pursuant to which the FIR has been registered and investigation was commenced. In that view, the prayer made herein seeking for mandamus to direct the respondents No.2 and 3 to transfer the complaint in Case No.126/11 being investigated in Crime/FIR No.42 of 2012 at Delhi to Bangalore is not sustainable. 13. In so far as the prayer (a) to (c), though the learned counsel for the petitioner seeks to contend that a perusal of the complaint does not make out the offence as alleged and that the learned Magistrate has not applied his mind while referring the matter for investigation and also relied on the reply statement and the documents enclosed thereto, I have already arrived at the conclusion that the filing of the complaint in Delhi was justified. In that view, when it is seen that the learned Magistrate who had jurisdiction has by his order dated 29.02.2012 stated reasons to direct registration of FIR and when such Court of the learned Magistrate is subordinate to the High Court of Delhi, it is for the petitioner to raise all such issues therein. 14. For the reasons aforesaid, I pass the following: ORDER (i) The writ petition No.25761/2013, though maintainable before this Court, the relief prayed therein is rejected. (ii) The contention on merits are kept open to be urged before the High Court of Delhi, if the petitioner chooses to approach that Court. 14. For the reasons aforesaid, I pass the following: ORDER (i) The writ petition No.25761/2013, though maintainable before this Court, the relief prayed therein is rejected. (ii) The contention on merits are kept open to be urged before the High Court of Delhi, if the petitioner chooses to approach that Court. (iii) Parties to bear their own costs.