Shree Raj Travels & Tours Ltd. & Ors v. Destination of the World (Subcontinent) P. Ltd

.S * IN THE HIGH COURT OF DELHI AT NEW DELHI o/o Judgment reserved on: Jffh September, 2011 Judgment pronounced on: 21st September, 2011 + CRL.M.C. 1179/2011 SHREE RAJ TRAVELS & TOURS LTD. & ORS. .. ... Petitioners Through: Mr.Sunil Gupta, Sr.Advocate with Mr.Jatin Zaveri, Mr.Gaurav Agarwal and Mr.Tanmaya Agarwal, Advocates versus DESTINATION OF THE WORLD (SUBCONTINENT) PRIVATE LTD. .. ... Respondent Through: Mr.Anindya Malhotra, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

¶11Whether the Reporters of local papers may be allowed to see the judgment?

¶12To be referred to Reporter or not?

¶3Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG, j. For orders, see Cri.M.C.No.1056/2011. SEPTEMBER 21, 2011 mm '\ (PRADEEP NANO:lJOG) JUDGE Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. + 0' THE iH, 1-. ' ;! l) 'i\:ir>:: _ _:_.:_ ___ __ t o I ____ )t) f:t-. o rHoEr-p, . -c-•· - '!-LS r:._ I r\ J= · ,- .. :..::\ \.' :: .. 0[ l C.Ji :-. ;:: tJ p. U( \,_, ID,:,.r-i ''oner; " , n o " \.. .• '·' l_ ' ---, ''1 il· I: · ... .) u ':::? , lJ , Tj-1- ,,. "- ,_. ,- \' ',· '.Cj1' =1 - \1\r ' • " _!I Ci! u i l .•:... a ./ e' I' It\ ! L tJ c. u! d v I' - ' - '.,I - -- -1 -- T- ... , ..... - '' fe\ (_A c' 1/\' c; : -::;\ ·, I 0 I . Ci : '.: I a\' c: _, J - ' ,- ' ,_ l-\l]:31;-\N I, ·-\rJVOCC.LeS LIS DESTI. .01\i ">-THE OF\ r c: ·11 p ( <·al\1'--::-c, ;\1 ;:: ' l \ i !t T r: · ··r ;L···1. D .·-... , .. --,--1. ,, ···.:· .- \.._j1 .J' tJ \ .. ./ II [ '1 L_ } j I .. _ 1,/ r-". 1 : .. _ '- li · , , • rt. \t._: .. J)!J'_ .. i 1,)t_:; · .. -- , ·h "lfl r' ,.,· .. _, .. , 'I.- ,c.,,, !J - - ·-.-- ,,'.l.lJt. 1:''r.r,,...J,il!l'iU r·nlMC :: ... .cc ... :::: .. ::::..:: .c.= SHP.EE IY. L E:.X. OP,S. ..... t"eUL.:..•r:-<:'1 '-. }--, r L1 !r1 " r. 5 'U fi 1 J; , r /2\ (j .. J t vv itt ··k r ( r ! ;_, n 2 -I!\• ;-o, I ;ci n 0 ( il cr, ;-,, \i ['; • •') J '-- • '· . ._. ' •. t;c- .-,,. "J , 1.- i"C-,. /· I. __ ;. c I I,,· .::.• \. !,) L OJ • versus DESTIN/\ ,, . r TH F . " '.r- ... , ' , .. , ·-jr\ 1 • •,- · 'r'•'' iH ·• ' · , .,r, , I_ I \, '--·· l.'i-L-' i·:J ...:Ji u f ' ,-\ C;. •'l ;, - ...... .._,J.L'_ .• _ •• \. ( .5 B. C r \IT H\J C ·-r ··?' \/ E - - .. ,_ . [\(1 ' .. - .. I nl C c J\ . "J" .. +-c. z H'. Vc\ cl )l,'oJ, JWI.·vl\ii_..;_..,;Cjtr...:.. C H ;: (li l =: 5 q !D c r:: -1-' /I I 1" \LL \,"'\_; G1 ORS. /ELS Sr TOU . . . ;J !'l r li. 1_: r) t s. r' jj, t (-t ;· .. c:1 1\ (" -. , •. ",-. .. .. ,-, .-.\ ,. -,i I' rvc·-· ',·., c.:l i I t .. J i .' , ! r t i ·.::1 .C..i .. JU. ::.. r __ -·d ··r (' ;J;..r-· ,·!. : .l verst_,s DESTINAT!Ol\1 OF THE \NOHLD (SUBCOI\ITINEI\JT) PRIVATE ..... Respondent Through: Mr.Anindya Malhotra, Advocate CRl "' 111 r J ], l'!fii!QJI Jl ··-·'··· .U"II."-', __ ,_/ILL. _ SHREE F\AJ TPJl,\lELS 6( TOUFZS LTD. & ORS. . .... Pet'itior1ers Mr.SunH Gupta, Sr.i-\dvocate with Mr.J1abn Zaveri, Mr.Gaurav Agarvval and M r.Tanrnaya A,dvocates Through: versus DESTINIATION OF THE VVORLDI(SUBCONTINEINT) PRIVATE L TID. .. ... Respondent T"hroug!l: Malhotra, Advocate CRLM.C 1173/2011. SHREE Rl-lJ TRt\VELS & TOUR:S LTD. & ORS. . .... Pehtioners Thro'.JQil; Mr.SunH Gupta, Sr.?,d\.t-Ocate with MrJatin ZaverL. Mr.Gaurav Agarwal and Mr.Tannnaya Aga nrva I, p,dvocates versus DESTINATION OF THE VVORLD (SU BCONTI N Ef\IT) PRiVATE ., ... Respondent Througll: Mr.Anindya .. Advocate CRLM.C. 117l:l[Z011 SHREE RAJ TRP\/ELS & TOU LTD. & ORS. . .. ., Petitioners Mr.Sunil GLrpta, Sr.Adlvocate with Mt-jatin Zaved, Mr.Gaurav P.ganNal ancJ Mr.Tanrnaya Aqa I, l-\dvocates Crl M.C.I\Io.1056/20]_1 8, conr,ec:ted lllcltters Pagel of Z7 ! ver-sus DESTIN;J\T!Of\l OF THE \NORLD PRIVATE ..... Respondent Through: Mr.t\ninolya Advocate CRLM.C SHREE RAJ {)( TOUHS LTD. 6( ORS.. ,. ... Petitioners ·rhrougil: Mr5uni'l Gupta, Sr.Aolvocate with Mr.jatin Zaveri, Mr.Gaurav Agarvvall and M r.Tanmaya Agarwall. .ll,dvocates versus DESTII\IAT!ON OF THE \NORLD (SUBCONTiNE PRiVATE LTD. .. ... Tllmug.h: Mr .. Anindya Malhotra, .Advocate CRLM.C. SHREE RAJ TRAVELS & TOUR.S LTD. & ORS. ., ... Petitioners Mr.Sunlll Gupta, Sr.Advocate with Mr-.j)atin Zaveri, IMr.Gaurav A.ganfl/al and Through: ,4g a rv\!a .I, cates versus THE \/\/ORLD LTD.. . .... Respondent Tllrougll: f\/lr.Anindya Malhotra, /\dvocate M C ''-....-< n " n , ·:i --== SHREE I:ZAJ TRAVELS & TOURS LTD . & ORS. ..... Pebtioners Mr.Suni! Gupta, Sr.Ad\Jocate Through. with Mi-._11 n Zaveri, Mr.Gaurav Agarwal and Mr.Tanmaya Cri.IVI.C.No 1056/20118t conr,E:cted matters -: I Agarvvai, versus OF THE WOHLD PRIVATE LTD. .. ... Respondent Through: Mr inolya Malhotra, Advocate CRLMLC. 1119/2011 SHREE RAJ TR.JJ,\IELS 6c TOL!IRS LTD. 6c ORS. .. ... Petitioners Mr.Sunll Gupta, Sr.Aolvocate with Zaveh, Mr.(Jiaurav Agarwal and Mr.Tanmaya Agarwal, Advocates Thmugh: versus OF THE VVOPU_D (SUBCONTINENT) PRIVATE LTD. .. .... Respondent Through: Mr.Anindya Malhotra, Advocate CRLM.C. SHREE RAJ TRA·/ELS 6c TOURS LTD. & ORS. .. ... Petitioners Through: Gupta, Sr.Aolvocate with Zaveri, Mr.Gaurav Agarwal and Mr.Tanrnaya Agarvval, Advocates versus DESTINATION OF THE \NORLD (SUBCOr,JTINENT) PRIVATE LTD. . .... Respondent Through: Mr.Anindya Malhotra, Advocate CRLM.C. 118:3/2011 SHR.EE TR.f-\VELS 6c TOUFI.S LTD. f)( ORS. .. ... Petitioners Mr.Sunil Gupta, Sr.Advocate vvith Mr.Jjatin Zaveri, Mr.Caurav Thrr.Jug h: Ci-UJI.C.I\Io.1056/2011 & connected matters -;j --.! {o /:>,garwal and IMr.Tanmava ' J Aga rw;:;d, versus F THE \NOR, LTD. ...,. Respondent Til(ough: Malhotra, J\dvocate a r '11 <Oih:/"'])0-1 t .. · .lc...,l''li ,!,._,, 1 SHREE P,/\i TP,AVELS [,, LTD. &c ORS. . .... Petitioners Gupta, Sr./\dvocate with MrJatin Zaveri, Mr.Gaurav Aganrv23d and Mr.Tanmaya J\dvocates Through: versus DESTINATION OF THE \NOR (SUBCONTINE PRIVATE LTD. . .... Respondent Mr.i\n.indya Malhotra, Advocate C:RLM.C. 118112011 SHREE RAJ TRJJNELS & TOUR5 LTD .. 5c ORS. .. ... Petitioners -rhrouqh: Gupta, Sr.Advocate vvith r.jl n Zaveri, M r.Ga urav Agarwal and Mr.Tanrnaya f}._garwal, t\dvocates versus DESTINATION OF THE \NORLD (SUBCONTINEf\iT)PRIVATE LTD. ._ ... Respondent Thr-ough: Mr.Anino!ya Malhotra, .1-\d\/OCate f'Rff !\Iii r-, 1-· 'Jl'B'/,nll · IL.t:wli.l.,, JUJ>i)', L,l\.1) - ' • n - E n '\ ' -r .. c r,- _ .. ' c c ·- ' r·1 f\ t !1-\/-\j \/ t t_:.J \.) t.J r< _ & OF\S. .. ... Petttloners Througll: Mi'.Sunll Gupta, Sr.i\dvocate CrUvl.CNo.1056/201l 2r. con:l·2::i:ec! rnatte1-s PClge 5 ofn - '! I 1 with Mlr.Jatin ZaverL MLGaurav Agarvval and Mr.Tanrnava J-\ga rvva I, Advocates DESTIN!\T!Ol\! OF THE (SUBCOI\lT!i\JEr\iT) L-·,·n. . .... Respondent Thi-c,ugh: Mr.,Lllflindya Malhotra, Advocate CO HAM: HON"BLE MR. jUST/ICE

¶1V\/hether the Reoorters of local papers rT1av be alh:;:,'JEG to see the judgment? To be 't. o 0 epo·-'l·e,-" ' ! • ! ......... J l I :: , II :j I tl} -

¶3Whether tile judgment should !oe reported in the Digest? PRADEEP NAINDH.AJOG, j1. l. stated the facts leadir:g to filing of the abovE: captioned petitions a1-e that r-espondent i.e. 'Destination ot Wor!d (Subcontinen Ltd.' a connpany registered under the Companies Act filed 15 compla1ints under Section 138 of the 1\! egotia bl e I lllents Act, 1881 (llerei nafter 1-eferred to c:s the 'f\ll 3 cheques bei 1< g the subject matter of each complaint Petitioner i.e. 'Shree Raj Travels & Tours i_td.' a company r-egistered under tile Companies Act was impleaded as accused No.1 ancl petitioners 2 to 7 wer-e impleaded as; co-accL!sed on the alle,g1ation that as they were inc:harge of the day to day affairs of the company and hence vvere vicariously liable for the defaults of the company. The con!piai:lt vvas filed. in the Court of Chief J\r1ett-opoljtan referred to as the Cri.M.C.l\lo.1056/2!J11 8'. ·::on'WC::ced matte!·s Page 6 of Z7 ---.! f 'ACMM') Nevv Delhi, inter-alia, aJe ng that the respondent cornpar1y and the a=:cused f\!o.l company had entered intc 2 agreements in tenlls vvhereof the accused I'Jo.l compa,ly had issued 45 cheques drawn on State Bank of . Mumbai Branch, in favour of the respondent company, which cheques when prese 1r encashment by the respondent with its Banker lOCi Bank Delhi, were dishonoured and upon the cheques being returned the respondent company iss.ued n ces contemplated unde( proviso (b) to Section 138 Nl P1ct from Delhi to the accused No.1 company which failed to make payment in respect of the sum for which the cheques \1\iere drawn within 15 da} s of the receipt of the said n ces. VVith respect to the jurisdiction of the Courts at Dellni vvas pleaded that for the reason the respondent company had presented the cheques in question for collection with its banker !Bank situate::! in Delhi, the Court had the necessary

¶2may be noted at the outset at after the cornp!aints wer-e filed, tile respondent co1T1p·any fHeol a suit bearinJ No.SS0/2010 in which petitioner No.1 was as th::: defendant before the High Couwt of Bombay praying for a decree to be passeci in the sum for the 45 cheques forming subject-Tnatter of the aforesaid ·complaints were issued. tile plaint, jurisdiction of the Courts at was pleaded on tl1e averment that the agreement pursuant whereto the cheques were issued vva'3 executed at Mumbai as also that the cheques in question were drawn and issued at Mumb0d. Cri.IVI.C.No.1056/2011 g, con'lecteci cnatters Page 7 of 'i!."l }

¶3Taking cognizance· of 't!-1e complaints, the learned ACI\!JM SUITimoneci e petitioners to face trial for an offence punishable under Section 138 of the N.L Act.

¶4Upon service of the sunnmons, the petitioners filed application(s) undei-Section 177 C:r.P.C. inter-aHa stating that the courts at Delhi have no jurisdiction to take cognizance of complaints· and prayed that complaints be returned to the respondent to be filed in the court of competent jur-isdiction. Together with the said application(s), petitioners 2 to 7 filed appHcation(s) seeking exemption for personal appeal"ance before Court. Dismissing application(s) ::;eeking exemption personal appearance and keeping pending, for consideration, application(s) filed under Section 177 Cr.P.C. vide o1rder elated 25.05.2010 e !earned ACMM issued bailable warrants petitioners 2 to 7.

¶5Aggrieved by the order dated 25.05.2010, petitioners 2 to 7 filed petition(s) under Section 482 Cr.P.c:. before Court, which petitions were dismissed vide order dated

23.09.2010. tl1ereto, petitioners filed petition; seeking Special Leave to Appeal before the Supreme Court which wer-e disposed of vide on::ler dated 14.1.2011 with a direction to the leamed /l,CMM that applications filed unde;- Section 177 Cr.P.C. would be disr,Josed of vvithin 2 weeks.

¶6Vide dated

14.02.2011 learned disrn issed the a ppl ication(s) under Section 177 Cr. P .C. filec by the petitioners on the ground that In view of the dicturn of law laid down by the Supre111e Court in the decision Cri.M.C.No 1056/2011 & --.! ( L/ reported as (2004). 7 SCC 338 llidalat Prasad v Roop La/ Jindal once the agistrate has taken cognizance of a complaint he has no power return the same to th::: complainant with a direction t!lat the same ge filed in 3 court of competent jurisdiction.

¶7Aggrieved by the order dated 14.02.2011 passed b:1 the !earned ACMM, the petitioners have filed the above-captioned petition(s'l under Section 482 Cr.P.C. requirin9 this Court to hold that courts at Delhi have no jurisdiction to take cognizance of the complain1ts in question and seek directions to the learned the s;.ime for befoi-e the Court of Competent jurisdiction.

¶8It is the case of the petitioners that the cheques !FI question were dravvn at Murnb.ai. e drawee bank is Mumbai, notice iSS ivied by the respondent to the petitione · company was received at Mumbai and thus merely the respondent posted the notio::> from and depositecl cheque with its bank at Delhi would not confel-jurisdiction on Courts in Delhi.

¶9Tile is:;ue llas to be debated Nitll refel-ence to Sectior: 138 of the Nl Act and the applicable provisions of the Code of Criminal i.e. Sections 177, 178 ancl 179 of the Code of Criminal Procedure.

¶10In the decis Oil as 1999

(7) SCC 510 KB/Jaskaran \Is.. 5ha·nkaran Balan S Anr, the . --------------· -·- Supreme Court has opined, afte1-considering Sections 17f to Section 179 of tile Code of Procedure, that ar Crl.rvi.C.I\Io.1056/2011 P,t co lllE'rJ.::d matters P 9 of 2:,, I I { offence may be cc;;-ipleted in rent localities al!d thus can be trreai in an CJurt hc;,ving jurisdiction over said localities. To p it pithily, iin to territorial jurisdiction, qua ar: offence, law recognizes more than 1 court having1 Jurisdiction Cind the issue of territor\a. jur-isdiction would have to be decided vvith reference tc whether a part of offence ·1Nas committed within tilE territor-ial iurisdlction of a court. e issue is no res J ... _, integra and [ just i1r2t'::1 to note the decision of the Supr·eme Court in. K.Bhaskaranis case (supra) and i1ighlight that tile aforesaid is to be culled out frorn paras 11 and 1:2 of the said dectsion.

¶11The next logical question would be, vvhat are the of

0.f the Nl nPrtainl·nq to be u r , .._) _, t: L, , , .L _ c _, L 1v c: , ,. _ c ·" L: . perforrlled in relation to ar1 offence contemplated by the 'd c ·t' sa1 . ..Jec 10n! It harr::;ilv be that it are acts of Co·, 'r11ll11. SC:. i 'u" 'r'l rJ' ,... ·.i '1 c: c;,' 1) "1···, '1Ni-.l ;I ( ;-·1 r·n ':''• i·:ul-e 0 iFfE•""l rnc:; \lill··ti·l 0,- """ , ._), . t ..__,, ., ___. ._. .._ . l • •••• ..... , L. a ,. , ij •I ......... r::._}, . v , vv·ithout the renuisite iTH..?ns rea. dero,2ncHno -1 ·' " ._, upon I,Nhethet" th.e offence an absc1ute offence or not.

¶12Let me thus note Section L3El, i\.ct which reads as \/\!here any cheque drawn by a on en account: n1aintained by hilT wi a banker for payment of any amount of r'noney to another person from of that account for U1e dischar9e, in vvhole or in pai-t, of any debt or other liability, is returned by the bank unpaid .. either becatJse Df the arnou of rnoney standing to tile credit of that account is insufficient to llonour the cllec\ue <Jr that it EYCeeols the amount arranged to !:)e paid i1=hat account by cHi , Cd.i\11 C.No.1056/2Clll & umnected matters agreernent with tila:: :bank,, such person shall be deerr1ed to have c.:Jmmitted an offence and shall out prejudice to any other provisions of this Act, be punished wiith imprisonment for a term may extend to two year, or with fine which ITlay extend to tvvice the amount of e cheque, or with both: Provided that nothing contained in this section shall unless-

(a) The cheque 11las been pi'esented to the bank within a per-iocl of six months the date on which it is drawn or within e period of its va!idity, whiche\ier is earliel-,

(b) The payee or-the holder-Induce course of tf-le cheque, as the case may be., a demand for the payment of the said amount of money by g ivi nq notice, in writing, to the drawer, of the cheque, within thirty days of the receipt of information by him from the bank return of the cheques as unpaid, and

(c) The olravver of such cheque ils to make the payrnent of the said amount· of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice, · Explanation: Fo1-the put-pose CJf !!debt or other iiabilit)/' means a enforceable debt or other section, legally _ [&

¶13In Bhaskaran's case (supra) (':?:Supreme CotH-t hc-,d an occasion to deal with the issue of territorial jUI"isdiction in relation to Section 138 of the Nl ancl of necessity, the discussion requin::d SuprelT11e Court to various acts of commission and crrdssionr which ::::onstituted the offence punishable under Section 138 of the N! t\ct and suffice would it be to llighligllt tl1at in para

1.4 of the · Cr!.!VIC.No.l056/2011 & connrccted Page 11 of27 ., [ decision, th1?. Supreme Court that there are 5 acts which are the components of e offence punishable under Section 138 of the 1\11 Act and I re-produce the same from para V1: oF tile decision of e :.'3upreme Court. They read as under:-

(i) drawinq of the cheque,

(ii) presentation of the cheque to the bank,

(iii) returning the cileque unpaid by the drawee bank,

(iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amou

(v) failure of the to make payment witl1in 15 days of the receipt of the notice.

¶14After holding at acts constitute components of an offence under Section 138 of the Act, in paras 15 and 16 the urt observed as undet-:- "15. it is not necessary that I the above five acts should l1ave been perpetrated at the sarr1e locality. it is possible that eaclh of those five acts could be done at five diffet-ent localities. But a concatenation of all the above e is a sine qua non fo1-the con1pietion of e offence under Section 132: of tile Code. In tl1is context a reference to Section 178( d) of e Coole is useful. It is extracted below:

¶16Thus it is clear, if the five differ-ent acts 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 tl1e .Act. other vvords, the com::-,iainant can choose any one of Cri.M C.i\lo.1055/20E & connecied rnatters --,! ., ! i those courts having jurisdiction over any one of the local areas within the territorial Hrnits of which any one of those five acts was done. As amplitude stands so widened and so expansive it 1s an idle ·exercise to raise jurisdictional question regarding offence under Section of the,; l-\ct." (En1phasis Supplied)

¶15On the issue of service of notice required to be given by the complainant to tile the Suprem1e Court observed as under:- "17. The more important point to be dedded in this case is wl1ether the cause of action has arisen at all as notice sent by complaina to the accused vvas returned as ([unclaimed". The conditions pertaining to the notice to be given to the drawer, have been fonnulc:J1ted and incor,porated in clauses (b) to {c) of the proviso to Section 13B of the Act. The said clauses are extracted below·

¶18On the pai-t of the he has to make a demand by "91 ivi ng a nohcel'' in writing. thlat was only r-equirement to complete offence on the failure of t11e di'awer to pay the cheque amount within 15 days from the elate of such "1g ivi ng", the trava i Is of e prosecution would have been very much lessened. But the legislature says that failurrc:: on the part of the drawer to pay t!1e amount should be within 15 days "of the receipt" of the said notice. is, therefol-e, clea1-that "ghiing notice" in context is not the same as receipt of notice. Giving is a process of vvhich receipt is the accomplishment. it is for tile payee to perform the former pmcess by sencliinQ e notice to the drawer at the co:Tect address CrUVl.C.No.l056/2011 6t connected matters Page 1J of 2.1 !

¶20If a strict is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee se the notice on the correct add(ess, a trickster clileque drawer wou!d get the pren1ium to avoid rec:ei\f!ing the nobce by different strategies and he could escape frorn e legal consequences of Section 138 of the it rnust be borne ln mind that the court should not adopt an inte retatlon vvhich helps a dishonest evader and clips an honest payee as that would defeat the \lery i eg islative r:-r1 re. :21 ..... The context in Section 138 of the Act invites a liberal ·i r-etabon for the person who has the statutor-y obligation to give notice because he is presumed to be the loser in the transaction and it is for his inter-est the very pmvisiOI:"I is rnade by the leG1islature. The words in ciause (b) of the proviso to Section 138 of the shovv that the payee has the statutcry obngation to urnake a dernancl" by giving notice. The thrust in the clause is on the need to "make a demand". It is only the mode fo1-making such dernan(i which the legislature has prescribed. ;D\ payee can send tile notice doing his part ifor giving the notic::'. Once it is despatched part is over and the (:ext depends on vvhatthe sendee does.

¶22It is well sealed that a notice refused to be accepted by the addressee can be presumed to l1ave been served on him (vide l-larcharan Singh v Sh!vrani2 anC: jagdis/7 Singh v. l\!atthu Singh3), 2 3. Her-e ·ch e 1otice is as u ndai and 110it as n::fu.sed. \'\fill th any difference between tvvo so far as tlile pt-esumption of service is r:o11cerned? ::n this Crl.IV!.C.I\Io.1056/20111St connected matters -"-.! -- '! connection a reference to Src;=tion 27 of the General Clauses i\ct will be usefuL The section reads thus:

¶24No doubt Section 138 the /l,,ct does. not require that the notice should be given only by " t" Nl t 1 ' • I . ' l ' ' I • pos . one ne!ess r 1e e !ilcorporateo m Section 27 (quoted above) can profitably be imported· In a case where sender has despatched the notice by post vvith e correct address written on it. Then it can be deemed to have been ser\ted on the sendee unless he p(oves that it vvas not really served and that he was not r·espo:;sible for such rnon-service. J\ny other inter-pretation can leacl to a very tenuous position as the drawer of the cheque vvho is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. '

¶25Thus, vvhen a notice is returned by the sendee as unclaimed such date V\rouid be the cornmenclnrg date in reckoning the period of 15 days conternpiatecl in clause (c) to the proviso of Section1 138 of the Act. Of col_u-se such reckoning would be without prejudice the right of the drawer of the cheque to show that he had no knowledge that the notice vvas brought to his address. In the present the accused not even attempt to discllarge the lourden to rebut presumption." (Etnphasis Supplied)

¶16Tile expressions: /pres-entation of the cheque to the Bank/ a.nd 'if tive difl::ere··Jt acts were done in tlve different localities any one of N;;e courts exercising jurisdiction In one cf the five !oca/ areas can becotne the a/ace of trial tor the under Section 138 ol tlre /(jet' to' I . b,e· -fo I ! n d .11'-l n ':'1 reo, c: l d. "'\ ;l 01 1 1=, n e-r-·ti \{a 'I\ I I. "l l?/7 ;:yr.:://,.::, (":::1 1-7' c: .._, • .._ \_.. Ci' f),._) . ...... ,_, ·, __ .._, \!''" .•• • v 1.;:._ y '-• case (supra) bee:n understood many to mean IJ .. lat Cr!Ni.CI\lo.1056/201l 8, conrf':::ted Page of 27 the Court within ioc2l limits of vvhic:h e payee Bank' i.e. the Bank vvhen:> the complainant deposited the cheque i:; situated has the jurisdiction to try the complaint unde-Section 138 of the Nl Act and tli:e understanding appears to be fortified by the observations of the Supreme Court in paras 15 and 16 ti-Jat if the 5 acts contemplated as the ingredient of an offence under Secbon 138 of the f\H Act were done in 5 diff':':'rent local es,, any one of the court exercising jurisdictio;: In any one of e 5 iocal areas 'Woulo have jurisdiction.

¶17But, it is apparent that the observations in para 15 and 16 are an obiter as it is not :=l places where the 5 acts constituting an offence under Section 138 of the Act can possibly be The aict:; can be performed, as would be ·explained hereinafter, onlly at 4 pi aces and I vvould immediately state that act No.2 and act No.3 reiate to only one place i.e. the place where the clrav"'ee bank is located.

¶18The second and the third c! of the 5 listed by the Supreme Court, as constituting r::: offence under Section 138 of the f\!1 A.ct al-e: (a) presentation of the cheque to the bank; and (b) returning the cheque unpaid by the drawee bank.

¶19The thir-d act is tile rehwn tile cheque unpaid by the di-awee bank and tllus there Is no scope for any arrgument as to which bank is co11templated vvith reference to the said act. The second act pertains to the act of presentation of cheque to the banli<. i llighiight tnat words used are 'the bank. Cri.M .C. No.1056/2011 8t conne:::ted m2tters Page Hi ofn !

¶20e decisiorn reported as 2001 (3) SCC 609 Shri lshar Allov Steels Ltd. Vs. /avaswals Neco Ltd, a 3 Judge Bench of the Supreme Court, il,aving as a member of the Bench the author of the judgrne in B!?askaran's case (supra), dealt with and decided as \Arhat would be meant by 'the bank' as mentioned in Section 138 of e Nl Act. V\/as it the drawee bank or e Dayee bank? The Supreme Court answered the question in the following words:- "2.

(a) V\/hat s rneant by, e bank" as mentioned in clause (a) of the proviso to Section 138 of the Negotiable !Instruments t\ct 18817

(b) Does such bank mean the bank of the drawer of the cheque or tile payee of the cheque?

(c) To which bank the cheque is to be presented for rQ11rposes of attractinq penal provisions of Section 138 of the Act?, are the questions to be determined by this Court in this appeal. has ','1("' nntr·c l"''d-ar1 - 1L , ......; ....... ! 1 •• _. I

1.. ! l A _ _. , I I a, offence .under Section 138 of the Act, it is mandato-ry tr1e cheque i's pr·esented to "the bank" within a period of six months from the date on whi_cr11 it is drawn or within the period of its validity, whiclnever is earlier .. Is the cheque drawn which has to be presented to "the bank" the period specified therein. When a post-dated cheque is written or drawn, !t is only a bill of exchangJe. The post-dated cheque become a · cheque under the Act on the date which is written on tl1e said cheque ancl the six months' Cri.M.C.I\Io.1056/2011 8t connected m.'itters Page 17 of :n -:! --.! period has to be r-eckoned, for the purposes of Section 138 of the frorn the sard date.

¶8Section 138 provides th '1Nhere any cheque drawn by a person on an account maintained by him with a "banke;J' for payment of any amount of money to another pe:-son from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned /by "the bank" unpaid, either because of the amount of money standing to the creoL of that account is insufficient to honour the clleque or that it exceeds the a'r1lount arrarnged to be paid frorn that account an agreemr2nt made that bank, such person shall be deemed to have commiitted an offenc,e punishable with i m pt-isonrnent as prescribed! erei n subject to the conditions mentioned in clauses (a), (b) and

(c) of the proviso. Section 3 the Act defines the·" banker" to include any person acting as a banker and any post office savings bank. Section 72 of the provides that a cheque rnust, in order to charge the drawer,, be presented at the bank upon which it is dravvn before the relations between the d,-awer and his ioanker has been altered to the prejudice of the drawer.

¶9The use of \Nords "a ba1nkl/ and "the bank" in the section is an indicator of the intenbon of the leqis!ature. The former is an indirect (s/c indefinite) artic!e and the latter ls prefixed by a dirrect (sic definite) artide. intended to have the sarn,e for "a bank" and "the bank", then:·. vvas no cause or occasion for mentioning! it distinctly and differently by using two oliffere articles. It is worth noticing that the \JVO "banker" in Section 3 of the Act is prefixed by the indefinite article "a" and the word "bank" where tl1:e cfleque is intended to lJe presented under Section 13B is pr-efixecl by the definite a cile i'the" The same section permits a person to is':,ue a cheque on an account ITlalintained by hirn vvitln "a bank" and Cri.M.CNo.1056/2011 & :::onnec'ced matters Page 13 ofn \ makes him liable for prosecution if it is returned by the bank" The payment of cheque is contemplated by "the bank'' meaning ereoy where e issuingJ the cheque has an account. "The" is the word used before nouns, vvith a spec ng or partkularising effect as ooposed to Indefinite or generaiising force 9f "a" or '''an". determines \/\that particula1-thing is meant; that is, what particular thing we are to assume to be meant '''The" i.s always mentioned to denote a particular thing 01-a person. ''The'' would, thel-efore, refer implicitly to a specified banlk: and not any bank. [(The bank" referred to jn clause

(a) to the proviso to Section 138 of the lkt vvou!d mean the drawee bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of e payee, ir: whose favour cheque is isst.-r:ed.

¶10it, howe'Jet-, does not rnean that the cheque is always to be presented e dra\fller's bank on whiich the cheque is issued. The payee of tile cl1eque has tile option to pn::sent the cheque in any bank including the bank where he has his accou.nt but to attract criminal liabilitv of drawe1-of the cheque such collecting bar',k is obliged to the cheque_ in tile drawee or pavee hank on which cheque is drawn within the period of six from the date on vvhicll it is shown to have been issued,. ..... The of the cheque to the drawee ba k within tl1e period specified 1n the section vvou!d absolve t person issuing the cheque of his cr-iminal iiabilit)r under Section 138 of the Act wile shall otherwise may be to pay the cheque amount to the payee in a civil action initiated under A combiried ,-eadinq of Sections 3, 72 and 138 of the would leave no doubt in our mind that the lavv ·----· mandates _ _to ;qt bank on t is draiNn if the drawer is to be held criminaliv liable. Sucl1 _Qresentation is Crl.M.C.No.l056/2011 8t miltte.rs PagelS orll· --:·1 to be madP within six months at the bank on which the drawn whethec presented or throuqh another bankl namely, of the payee." (E;nphasis Supplied)

¶21T!lough the decision in Al//oJ/s case (supra) has been rendered in the context limitation for presentaticn of a cheque, the said ftlrings out in no uncertain terms that Section 138 of tile t1ct contemplates that a cheque is required to be presentrpd for encashment to the drawee Bank and. that the payee Bank, merely acts as an agent of the payee/COillp!ainant for purposes of presenting t!le clleque in questirJn r encashme to tile drawee Bank.

¶22Thus, the 21ld act to whlch tine Supreme Court r-eferred to in Bhaskarar/s CC152 as one of e :], '\/Vhicr1 consbtutes offence under Section p!-esentation of the cheque of e 0 '- !\II Act 1/\fas th2 drawee bank and need!ess to state the act which constitutes an jngn?dlent of the offence Is tile retum of the unpaid by the drawee bank and thus it becorrteS Cfly'Stal clear that the 2rj and 3rd act constituting the offeilce vvoulol relate to only one olace i.e. the o!ace :Nnere the dravvee bank is locatecl. I '

¶23These are r11y humble reasor1s to hold that observations in paras 15 and 16 have to be read as an orbiter and thus tile 5 acts as constituting the offence are cap;:;:1ble of being performed not in 5 but only in 4 places and since rj,eposit of th·c:: clneque with the payee bc;;nk is not an act contemplated as an in·gredient of the offence, the pla:ce vvhere the bank Is located \N.Ould bE: C:l.M.C.No.1056/2011 g_ connected mat'.:ers Page :Wof n •] irrelevant for pel us(:::::; of detennlrdng jurisdiction of the crirTlinal court.

¶24It is settled law that a decision is an authority for the point it decides and not what can be logically deduced therefr-om and the of a decision has to be 9athered with reference to the facts of a and highHght only one decision of the Supreme Court being the declsior1 repor-ted as Dhodha House v S,K__LijalnqL(2006) 9 SCC 41. -,5 L . The matte!- regarding jL!risoliction can also be vvitll reference to Section 6, Section 7, Sect11on 64 an(i Section 72 of the l\J1 i\ct.

¶26The re\evant of. Section 6, Section 7 and Section 64 of 1-\ct c=J'';d Section 72 of the 1\H reads as ·under:-- Section 6. Cheque: - A "cheque" is a bH! of exchange dra·JVn on a specified banker and not expressed to be payable otherwise than on demand and it ':ncludes the electronic image of a truncated cheque and a cheque in the electronic for·m. )( )( )( Section 7. The nlaker of c·l bill of exchange or Cheque is cailed "ciravver"; pe1r-s:on thereby di1-ect2d to pay is called tl1e "Drawee". )( )( )( Section

¶64Presentrnent r payment.

(l)]Prornissory notes, bills of exchange and cheques· must be presented for payment to the maker, acceptor or drawee tllereof respectively, !:::Jy or on beh.::?.lf of the holder as hereinafter provided. !n c!efault of such presentrnent Cd.!VLC.i"Jo.1056/2011 & Pag.:: .:a of n other parties thereto are nut Hable thereon to such holder ....... . )( )( )( Section 72. Subject e prov1s1ons of section 84 a ci-reque must in to charge the drawer, be presented at t!he bank upon which it is drawn before the lbetv1reen the olra\Ner and his banker has been adteredl to the prejudice of the drawer.

¶27,o._ co-joint reading of Sections 6, 7, 64 and 72 as cf Section 138 of the Nl out that in order to attract penal provisions of Section 13B of the Act a cheque i::; required to loe prese1-1ted for encashnnent to the drawee Bank and that the payee Bank acts as an agent of the payee/complainant for the purposes of presenting cheque in question to the dravvee Bank. The nrecessary corollary thereof is that no pa of cause of action for offence punishable under Section 138 of the l-\Ct arises ir1 the Court within the local limits the coHectiing Bank of the i.e. payee Bank is situated and thus sait: Court has no jurisdiction to try a con'lplaint under Sectior 138 of the Nl t.\ct filed by the complainant.

¶28This takes me to the considel-abon of second questior involved in the case i.e. vvl1ether the court local liimits of which place fron1 where thE complainant had se a notice c:o rnpiated under provisc

(b) appended to Section 138 of e 1\H Act is situated has the jurisdiction to try a cornplaint filed under Section 138 of tile NlAct. '1'! IVl C 1.\lo 1056/')01 1 c0 con .. -,c·-"o::J .._.. • • • • L-__ J... )I._ , I; , .. \.. l ._ L I ; 1.:: ... ?;115e :a of 27

¶29I have already noted the observations by the Supreme Court in Bhaskaran's case (supra) in the foregoing paras and would highlight tho::;rt in paras 17 to 23 th2 Supreme Court has reflected upon the limitation within which the notice has to be g n to the accused. The Supreme Court was considerinsr e expression 'giving a notice' in proviso

(b) to Section 1313 of the Ni J\ct, with refer-ence to the 15 cJays' time conternplated then by vvhich the requisite notice had to be served, which time is ncnv 3C days.

¶30Another decision of the Supr-eme Court, reported as

(2009) 1 SC:C 720 /-Iannan Pdvate Lim/ted v National Panasonic /ndia Private l i;_nited is worth noting on the subject.

¶31in Hat7nan's case (supra) the question which had arisen before the Supr-eme Cow-l= was precisely the same ,question which arises for consicllel-ation in the 1oresent petition i.e. whether e court withii"tt e Hrnits of vvhich the place from wher-e the cornp!aliir1ant had sent a notice contemplated under-p:-oviso (b) Section 138 of the Act is situated has tile ju:"isdiction to a complaint filed under Section 138 of the e aforesaid question 1n the negative, the Supreme Cou observed as under:- "12 ...... The oniy question, therefore, which arises for consideration is that as to whether sending of notice from Delhi ittself 'Lrvou!d give rise to a cause of a on for takingJ co,gnizance under the Negotiable instr-uments 1St ::-onl',eC.LecJ matters i:Jage 23 cf 27 --! - .-! Vf

¶13It is one thing to say tilat sending of a notice is one of the inQJiredients for mainta.ining the complaint but it is another thing to say that dishonour of a cl1eque by itself constitutE:s an offence. For the purpose of proving its case that the accused had corn1Tliltted an offence under Section 138 of the 1\iegotiable Act, ingredients tllereo: are required to be proved. \1\!h at would constitute an offence is stated in main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of e offence can be taken. If the ingredients for constitution of tre offence I aid down in provisos

(a), (b) andl (c) appended to Section 13S of the f;JegJotiable lnstrLiments Act ar-e intend to be applied in favour of the accused, tlle1-e cannot be any doubt that receipt of a notice woulld u rnately 9ive rise to the cause of action for fHing a complaint. ;!\s it is only on receipt of the notice that the accused at his own pe:-il may refuse to pay the amount Clauses (b) and (c) of the proviso to Section 138 therefore rnu.st be read tclQJether. issuance of notice would not by itself <gjve rise to a of action but communication of the notice would . . .. . . . . For constitution of an offence under Section 138 of the Act, the noticr:: m.ust be received by the accused. may be deemed to have been 1-eceived in certain situations. The vvord inter ana rneans "to make known, infonT:, convey, etc" ..

¶20.. ... /.\court derives a jrurisdict:lon only when the cause of action arose within its jurisdiction. The same cannot be conferred ioy any act of omission or comnlission ·on the part of the accused. A distinction must also be borne in mind [(},2tweer,, die ingreolit=:nt of an offence and commi . .ssion of a part e offence. liJI 1hl!e issuance of a notice by the ho.ld·er of a negotiable Ct"I.1Vl.CI\Io.1056/2011 & co:wected matters PagP 2'4 of 27 J instrUITlent is tl1ereof is also imperative. Only on a of such notice and failure on n1e par-t of e accused to pay the demanded aiT;ount withi1n a period of 15 days thereafter, comr11dssion of an offence completes. 0_b0Jl9_ of n_oUce tl1_erefore, catlnot have over tile service. !t is only from that vievv of the matter that in Da!n?ia Ce;nent (B!;arat) Ltd v. Galaxy Traders S Agencies Ltd er-,lphasis ilas been laid on service of notice." (Ernphasis r' f" ' t. I I' 't' ' . . r tl -- jL, Ar a · II"St o:usn reao1n01 or .lle or -_le :::>ca;rerne ,.

1.'1 Jt-far-,--r-•,.:J•;--.'·C: r--:,c;,:::,c 1'}- rr•;::,\/ -·.! u I j ,!;.:.___ _ __:::!_.! C:...0::_!__. • J j I I I ''-'' I I -!· \._, C'J ._, c .. ) -.... ) ·U }-' l } ' t I ;.A J strike to the reader that there is a confnct between the t\\fo decisions Inasmuch 2·5 rn Bhaskaran's case it W3S held tl1at the expression 'giving of notice' occurring in proviso (b) to Section 138 of the !\II Act means 'sending of notice' whereas in Hanna,rts ca::;e (supra) it V1tas heid that the said expression mr::'ans of notice',

¶33A reading of the tvvo decisions shovvs that there is no conflict betvveen the said decisions inasmuch as they· l1 ave been rendered in differe"lt contexts. The d12cision 1n Bhaska_ran's case (supra) was rendered in the context Jf starting point of Hn:itation 15 days prescribed .in proviso (b) to Section 138 of the Act and itt was in that context i.e. the co;ltext of limitation that it was held by the Supreme Court expn?ssiion giving of not!c:::·' occurnng in proviso (b) to Sectior,J 138 of the Act means 'sending or notice', The decision Hannan's case (suprt1) was render-eel in context of cause of action for filing a complaint under Section 138 [\H ;j1ct \N in jurisdiction of a co,ul-·i :;:-,r-,1-i rf•r:·Jte,'<L. ;.t \1,/-::Jt:- 1>-eld f"JV t-he f..! . L. , ._. _ :....A . -.-· 1 1 . L. f ....... 1 ••• • _. J .. ... . / • L a v v CJ fr ,_ J' i 1 ... Cr!.IVl C.No.1CJ56/211l1 St mattc:rs ?age lS o1: n Suprerne Court that e>qJre:ssion giving of not 1ce r occurring in pi"OVlSO (l1) to Ser=:tion 138 of the Nl ,1'\ct means 'receipt olnotice '.

¶34Now, same expression can have different meanings in different context as held b)/ the Supreme Court in the decision reported as fl1ajik La! !11alwndar . v Gourargj!_ Chandra L_?f}_x (2004) 1.2 SCC 8 wherein it was observed that a word occu :-:g 1n a .:tat ry provLsiron can have different meanings in d 1fferent coiltext witfnlrn the sa r1e statute.

¶35Thus/. the inevitable condusjon vvou!d be that the .+th act contemplated! as an ingredient of the offence 3S highlighted in Bhaskq_ran's case i1.e. 'giving notice in writing to the drawer of cheque' den7anci;f7g pay;nent of the cheqJe an7ount for purposes of lim1tation would have a meaning as explained in Bhaskaran's case and for purooses of jurisdiction would rnave a rneaning1 as explciinecl in lshar Allo;(s case (supra).

¶36Before concluding I vvoutd De faHing not to lodge a caveat. With electronic bankin'(J and facility payable at p,]r of clearance p ded by bankers and especially metropolitan cities, \Nhere cheques are c!earecl by not being presented to tile dravvee bank but at nodal branches of the cancel-ned banks, tile subject nnattel" of jurisdiction rnc;y have to be decidec keeping in evl that the drawee bank has createcl ar: a,gency w!1ere e cheque in question s tt"ansmitted r clear;':"1.nce and e s s whe:",:?. tine earance takes place would t 1-;en ar9uatdy becorne tile place vvher2 CrLM.C.No.1056/2011 8t cot-!il2Cteci matters !J. ' ./I K\· WI! ;I f;ll !i; 't ' ' ', I (aid I! o· u\; I! kj' HI I ''I l l,ii •. r_l· , b it , ·l:;'i ' ,,I !1r r: lj.l f,i !•j . ',. !:1 I i ! 'I :_1 ·· .. 'I . t (d !·.I !I J the cheque woulcl be requir-ecl to be tr-eated as presente1j to 'the bank' Le. e dl-awee bank. in such circumstances, properly constituted have to be found in a con1plaint and lodging t!1e caveat, ! leave it at that for the debate to be properly argueC: in an appropriate case witll the necessary relevant pleadinQJS.

¶37hold at on the in the complaint(s), no part of cause a.ctiori can be ::;aid to have accrued to the complainant at elhi.:. that the notice demanding payment vvas posted rn C),en-:l and that the cheque vvas vvith the payee ba rid< at De ill i vvou !d not constitute the acts contemplated as Ingredients of an offence punishable under Section 138 N! and thus i dispose of the petitions quashing order(s) dated 14.2.2011 and direct: e learned to return tile complaint(s) to respondents for filing in a Court having territo(ial jurisdiction.

¶38No costs. iC[EiiJJTIE"'iliiBEIIll ?1 ?n"" 1 J! II LII"U II'\ I.'- . , .-.. UJJL mm o-I.M.C.No.1056/2011 & connected mntte1·s -. "-- .. ,- - ... , . .., __ {PHADIEE!P NANDHJ.\jOG) jUDGE iJage 27 cf 21'