Research › Search › Judgment

Delhi High Court · body

2014 DIGILAW 509 (DEL)

Sanjay Pratap Bhati v. SE Investments Ltd. & Anr.

2014-02-12

VED PRAKASH VAISH

body2014
Ved Prakash Vaish, J. (Oral):-- 1. The petitioner Sanjay Pratap Bhati has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (herein after referred to as “Cr.P.C”) against the impugned order dated 2.4.2013 (wrongly mentioned in the petition as order dated 22.2.2013) passed by learned Metropolitan Magistrate, Dwarka Courts, New Delhi whereby the petitioner has been summoned for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘the Act’) in complaint Case No. 411/2013 titled M/s S.E. Investments Ltd. v. Sanjay Pratap Bhati. 2. Briefly stating the facts of the present case are that respondent No. 1 herein filed a complaint under Section 138 of the Act on the grounds, inter alia, that the petitioner herein had obtained loans from respondent No. I/complainant company and executed two hypothecation agreements dated 26.8.2004 and 27.1.2005. Pursuant to the said agreements, respondent No. 1 was to repay the said loan as per terms and conditions mentioned herein. The respondent No. 1 issued cheque bearing No. 845879 dated 26.12.2012 for Rs. 22,98,958/- (Rupees twenty two lakhs ninety eight thousand nine hundred and fifty eight only) drawn on HDFC Bank Ltd. Friends, Plaza, Sanjay Place, Agra towards discharge of debt/liability i.e. repayment of said loan. On presentation, the said cheque dishonoured with the remarks ‘vaccount closed’. Respondent No. I served a notice dated 11.1.2013 and despite service of notice petitioner failed to make the payment of the said cheque. Hence respondent No. I/complainant filed the complaint. 3. Learned counsel for the petitioner submits that courts at Delhi have no territorial jurisdiction to entertain and try the present complaint as no part of the alleged transaction took place at Delhi. The cheque in question was payable at Agra, Uttar Pradesh. Learned counsel for the petitioner further submits that the complaint does not contain the requisite averments for the court to take cognizance for the offence under Section 138 of the Act. 4. The short question involved in the present petition is whether courts at Delhi have territorial jurisdiction to entertain and try the complaint. This controversy is no more res integra in view of the law laid down in Nishant Aggarwal v. Kailash Kumar Sharma (2013) 10 SCC 72 . 5. In Nishant Aggarwal’s case (supra) the Apex Court reaffirmed the jurisdiction of the Court where the cheque is presented for collection. This controversy is no more res integra in view of the law laid down in Nishant Aggarwal v. Kailash Kumar Sharma (2013) 10 SCC 72 . 5. In Nishant Aggarwal’s case (supra) the Apex Court reaffirmed the jurisdiction of the Court where the cheque is presented for collection. In this case it was observed as under: “1 The question which has to be decided in this appeal is whether the Court, where a cheque is deposited for collection, would have territorial jurisdiction to try the accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short “the N.I. Act”) or would it be only the Court exercising territorial jurisdiction over the drawee bank or the bank on which the cheque is drawn? xxxx xxxx xxxx xxxx xxxx xxxx xxxx 22. This Court in Harman Electronics case considered Section 138 of the NI Act and also referred to K. Bhaskaran case and quoted the five components of offence under Section 138 which have been noted in paragraph supra. This Court reiterated that the five different acts which are the components of offence under Section 138 of the NI Act were done in five different localities, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the NI Act and the complainant would be at liberty to file a complaint at any of those places. Ultimately, this Court held that the Chandigarh court had jurisdiction to entertain the complaint because the parties were carrying on business at Chandigarh, branch office of the complainant was also in Chandigarh, the transactions were carried on only from Chandigarh and the cheque was issued and presented at Chandigarh. This Court pointed out that the complaint did not show that the cheque was presented at Delhi, because it was absolutely silent in that regard and, therefore, there was no option but to presume that the cheque was presented at Chandigarh. It is not in dispute that the dishonour pf the cheque also took place at Chandigarh and, therefore, the only question which arose before this Court for consideration was whether the sending of notice from Delhi itself would give rise to a cause of action in taking cognizance under the NI Act. It is not in dispute that the dishonour pf the cheque also took place at Chandigarh and, therefore, the only question which arose before this Court for consideration was whether the sending of notice from Delhi itself would give rise to a cause of action in taking cognizance under the NI Act. In such circumstances, we are of the view that Harman Electronics is only an authority on the question where a court will have jurisdiction because only notice is issued from the place which falls within its jurisdiction and it does not deviate from the other principles laid down in K. Bhaskaran. This Court has accepted that the place where the cheque was presented and dishonoured has jurisdiction to try the complaint. In this way, this Court concluded that issuance of notice would not by itself give rise to a cause of action but communication of the notice would. In other words, the Court clarified that only on the service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, the commission of an offence completes. 23. We are of the view that this Court in Harman Electronics affirmed what it had said in K. Bhaskaran that court within whose jurisdiction the cheque is presented and in whose jurisdiction there is failure to make payment within 15 days of the receipt of notice can have jurisdiction to try the offence under Section 138 of the NI Act. It is also relevant to point out that while holding that the Chandigarh court has jurisdiction, this Court in Harman Electronics observed that in the case before it, the complaint was silent as to whether the said cheque was presented at Delhi. In the case on hand, it is categorically stated that the cheque was presented at Bhiwani whereas in Harman Electronics the dishonour had taken place at Chandigarh and this fact was taken into account while holding that Chandigarh court has jurisdiction. In the complaint in question, it is specifically stated that the dishonour took place at Bhiwani. We are also satisfied that nothing said in Harman Electronics had adverse impact on the complainant’s case in the present case. 24. In the complaint in question, it is specifically stated that the dishonour took place at Bhiwani. We are also satisfied that nothing said in Harman Electronics had adverse impact on the complainant’s case in the present case. 24. As observed earlier, we must note that in K. Bhaskaran this Court has held that Section 178 of the Code has widened the scope of jurisdiction of a criminal court and Section 179 of the Code has stretched it to still a wider horizon. Further, for the sake of repetition, we reiterate that the judgment in Ishar Alloy does riot affect the ratio in K. Bhaskaran which provides jurisdiction at the place of residence of the payer and the payee. We are satisfied that in the facts and circumstances and even on merits, the High Court rightly refused to exercise its extraordinary jurisdiction under Section 482 of the Code and dismissed the petition filed by the appellant-accused.” 6. In para 11 of the complaint respondent No. 1/complainant has averred that the cheque was presented for payment by complainant company in Delhi and was dishonoured in Delhi. Intimation regarding dishonour of the cheque was received by the complainant at Delhi. The offence has been committed in Delhi and the notice was issued from Delhi. Therefore, the cause of action to file the complaint had arisen in Delhi. Thus, applying the law laid down in Nishant Aggarwal’s case (supra), Delhi courts have jurisdiction to entertain and try and present complaint. . 7. In view of the above, the petition deserves to be dismissed and the same is hereby dismissed. Crl.M.A. 11519/2013 The application is dismissed as infructuous.