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Himachal Pradesh High Court · body

2013 DIGILAW 974 (HP)

Rajeshwar Sabharwal v. Universal Apple Associates

2013-11-22

SANJAY KAROL

body2013
JUDGMENT Sanjay Karol, Judge The crucial question, which arises for consideration in the present petitions is as to whether the Court of Judicial Magistrate 1st Class, Court No.2, Kasauli, District Solan, lacks territorial jurisdiction to entertain the complaint filed by the present respondents (hereinafter referred to as the complainant), under the provisions of Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) or not? 2.Accused (Petitioners herein) have assailed the order of summoning dated 10.9.2012 (in CRMMO Nos.102 & 103 of 2013) and order dated 24.9.29012 (in CRMMO No.104 of 2013), passed by Judicial Magistrate 1st Class, Court No.2, Kasauli, in the complaints filed by the complainant. 3.According to the petitioners, transaction, if any, took place only in Shimla and as such Courts at Kasauli had no jurisdiction to entertain the complaint. 4.Whereas, according to the complainant, he runs his business in the name and style of Universal Associates at Parwanoo, where transaction took place between the parties. As such, Courts at Kasauli rightly exercised jurisdiction. 5. Complainant is a proprietorship concern. Petitioner No.1, who is the Managing Director of petitioner No.2 (accused in the complaint), had certain business transactions with the complainant, in relation to which cheques stood issued in favour of the complainant. Cheques No.396001, dated 30.7.2012; 396002, dated 8.8.2012; and 396003, dated 2 1.8.2012, amounting to ‘90,00,000/- each, all drawn in favour of the complainant, in relation to outstanding amount of ‘21,29,16,497/- were issued in the year 2012. This is the case of the complainant. 6.When Cheque No.396001, dated 30.7.2013 (CRMMO No.102 of 2013) was presented for encashment on 30.7.2013 by the complainant, through its banker, i.e. Punjab National Bank, Parwanoo, the same was dishonoured and returned vide Memo dated 30.7.2012, with remarks “funds insufficient”. Similarly, when Cheque No.396002, dated 8.8.2012 (CRMMO No.103 of 2013), and Cheque No.396003, dated 2 1.8.2012 (CRMMO No.104 of 2013) were presented for encashment, the same were dishonoured and returned with the remarks “payment stopped by drawer”. All the three cheques are issued on behalf of petitioner No.2 and signed by petitioner No.1. 7.Complainant sent legal notices dated 3.8.2012 (CRMMO No.102 of 2013), dated 24.8.2012 (CRMMO No.103/ 2013) and dated 1.9.2012 (CRMMO No.104/2013). These notices were issued from Shimla. All the three cheques are issued on behalf of petitioner No.2 and signed by petitioner No.1. 7.Complainant sent legal notices dated 3.8.2012 (CRMMO No.102 of 2013), dated 24.8.2012 (CRMMO No.103/ 2013) and dated 1.9.2012 (CRMMO No.104/2013). These notices were issued from Shimla. In response thereto, petitioners, through their Advocate, claimed that no amount was due and the question of issuance of any cheque in the name of complainant does not arise. According to the petitioners, cheques were stolen from their office, in relation to which a complaint was lodged with the police. 8.The fact that the complainant has business premises and transacts its business cannot be disputed. This is evident from not only the complaint, but also the address furnished in the notices. Past dealing inter se the parties is not denied. Significantly, one the cheques was returned with the remarks “funds insufficient” and not “stop payment”, on account of any criminal conspiracy allegedly hatched by the complainant. With regard to the other two cheques, there is no reason assigned for stopping payment. The cheques were presented in the bank by the complainant at Parwanoo and intimation with regard to dishonouring of the same also received there. The Judicial Magistrate 1st Class, Kasauli, has jurisdiction to entertain all complaints of Parwanoo. Simply because the instruments pertain to a Branch of the Bank at Shimla, or that the petitioners herein have their office at Shimla, this fact itself would not exclude the jurisdiction of the Courts at Kasauli. 9.While seeking to quash the order summoning the accused, Mr. Jagdish Vats, learned counsel for the petitioners, has referred to and relied upon the decision of the apex Court in K. Bhaskaran versus Sankaran Vaidhyan Balan, (1999) 7 SCC 510 . 10. Significantly, in this decision itself, the apex Court has clarified that any one of the Courts, exercising jurisdiction in a local area, can become a place of trial for the offence committed under the provisions of Section 138 of the Act. The Court clarified that the amplitude of the Act stands so widened and is so expansive that it is an idle exercise to raise jurisdictional question regarding the offence under the said Act. 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 causes of action has arisen. 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 causes of action has arisen. In Para-14, the Court held that: “14. The offence under Section 138 of the Act can be completed only with the con-catenation of a number of acts. 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.” Hence, to say the least, the said decision does not advance the case of the petitioners at all. 11. In fact, this view stands reiterated by the apex Court in Nishant Aggarwal versus Kailash Kumar Sharma, JT 2013(9) SC 188. The Court was dealing with a case where a complaint under the provisions of Section 138 of the Act was filed at the place of residence of the drawee, where, it was construed, cause of action would arise as cheque was presented there. The Court took into account its earlier decisions in Shri Ishar Alloy Steels Ltd. versus Jayaswals Neco Ltd., JT 2001(3) SC 114; and Harman Electronics Private Limited and another versus National Panasonic India Private Limited, (2009) 1 SCC 720 . 12. In the legal notice, respondents do not deny that complainant works for gain at Parwanoo. Whether goods in question were supplied or not, as is so denied by the accused- petitioners, or the cheques were stolen, is a subject matter of trial and this issue cannot be prejudged here. Also, there is nothing on record to show that petitioners had written to their bankers with regard to theft of the cheques in question. 13.Thus, in my considered view, cause of action did arise at Parwanoo and the Courts at Kasauli would have jurisdiction to entertain the complaint. 14. At this juncture, it be only observed that learned counsel has not made any submission on any other point. 13.Thus, in my considered view, cause of action did arise at Parwanoo and the Courts at Kasauli would have jurisdiction to entertain the complaint. 14. At this juncture, it be only observed that learned counsel has not made any submission on any other point. But, in the grounds of the petition(s), it is urged that the order of Magistrate issuing summons, under the provisions of Section 200 of the Code of Criminal Procedure, is illegal and erroneous, for the reason that complainant was not examined prior thereto. 15.The apex Court in A.C. Narayanan versus State of Maharashtra and another, JT 2013 (12) SC 524, has categorically held that: “22. From a conjoint reading of Sections 138, 142 and 145 of the N.I. Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.” 16.It also stands clarified that the complainant, in fact, has filed his personal affidavit, as preliminary evidence, which in fact is his statement, contemplated under the provisions of Section 200 of the Code of Criminal Procedure. Only after perusing the entire record, the Magistrate issued the process of summoning the accused. 17.The law with regard to quashing of complaint/FIR is now well settled. In a case of quashing of an FIR, the Constitution Bench of the apex Court in Chandra Deo Singh versus Prokash Chandra Bose @ Chabi Bose and another, AIR 1963 SC 1430 , has held that the test to be applied is as to whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. If there was prima facie evidence, though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by the appropriate forum at the appropriate stage and the issue of process could not be refused unless it is found that the evidence led is self contradictory and intrinsically untrustworthy. (Also Nirmaljit Singh Hoon versus The State of W.B. and others, AIR 1972 SC 2639 ). 18.No other point urged. 19. For all the aforesaid reasons, present petitions are dismissed, so also pending application(s), if any. 20.Records of the Court below be immediately returned. The parties are directed to appear before the trial Court on 23.12.2013. (Also Nirmaljit Singh Hoon versus The State of W.B. and others, AIR 1972 SC 2639 ). 18.No other point urged. 19. For all the aforesaid reasons, present petitions are dismissed, so also pending application(s), if any. 20.Records of the Court below be immediately returned. The parties are directed to appear before the trial Court on 23.12.2013. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matters uninfluenced of the same.