Shree Raj Travels & Tour Ltd. & Ors v. Destinatin of the World (Subcontinent) P.Ltd

PRADEEP NANDRAJOG, J. For orders, see Cri.M.C.No.l056/2011. SEPTEMBER 21, 2011 mm :J (PRADE;J;: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. '1/o + b N THE ': ''- ':: ! T N i I _z :5th 5 L; LJ 1 BJ __ UJO!]OUr!CEd .. ) rst Se.ptelTJ/J.t;_£. li\lli .- 1· fj!L: r 1'1)0]1] . .:tJL.):IOt;c.:.."-· _ SHP\EE , J.,\/ELS G( J LTD. S( ORS .... 1l \; ,_; L : ..,. .. Petitione1··; Mr-.:: u . vvith r .Jadn Za\leri, .'\ (""" , _ _ ·- -r ,_ ,..... .1 , 1--''1 ::j :01 i 1l\' c• I c: I I 0 i ' a i Iii ill a y a: ,., \!nc=>"os f-1\\:) cl: \t tii.l r •• ) '1._. DEST!NJj, IC,'\ ;::: 'THE ( 5 u B r\1 .... , .es r r ;·cu]h: Mr. nir:d\ia ocate. r· R' · r("' .,1 J 11;; c. ;:-,)' ,nQ 11 __ "-•_n •-'•' \1,.)1[ (.,;., 1• ; 5HREE FV-\j '.iELS 6r TOUPS. L "" •• S( OP\5. -,- 1-. .., h" l :: \_• l:.:J! l. I .5 i 1 (:- _:: , Sr./:!.\ 1j! i0C:3 te vvith r . Zaveri, ivlr. "·::I ,-- ;i I ::. II c:c,, n rvl r· T ;::<. • \ , _ _.) : \, 1 U. I '. c 'C. ' , r• .,_,; ! , ,. C, 11 ,Q f-\g. j''il\/ li /':., ,..,, ) /('• c-j·"\ .... J I ' ! .,\_)] \:•..,. _. _\.,_..J versus ,... c \ '\!''',..., .... I I I . \ I;-·: r I t! · · DESTINiJ.. :\i .. i\//\TE ,_ .... , ... ·· . I J ,. . I' ' .,; .. , I n .. l <'., ... A ,.1, ,. " , .. -:; l _, : 1::,; ! \1 , , 1: , ', . .._.: l . ql P r-r. 'v! \! 1_) ..,. ()j f; i\,1 ,,.--. -,; "i' t. ',__, -o il __ _::::...:1:_ __ _: . SHREi= P6i " L.._ '\1 \..i•' Gc OR.S. . 'ELS & TOU fP• t-i l-l C\ irY, "0 .. ". I CLJ'-....1 . :·.:: c;!-J: f'Jir S: .. :n lr tota. ··:;.r)\c]·.wc2LE' ' \/\/ ttil , .. n r;;) .::), j·.,: r , --f · 21 /-.,\•;Jja;-.fi,.C (. ·,-;, f\_/j :\) (") • u / '- l .t - -·:t-s ,, ,- f / J ! '7 ve r.s us DESTIN!-\Tl i'-J 1= THE \IVOR.LD (SUBCONTINEI\JT) PRIVATE ..... Through: Mr.A,nindya Malhotra, Advocate "Rl i\IIJ c .-,II /1")1 {rJ)OJI JL L,., .ll"U. -- SHREE il.f-\J TRL\\!ELS E)( TOU LTD. &c ORS. ThnJugh: . ,. .. Petitioners Mr.SunH Gupta, Sr.Advocate with M l'.j/ n Zaveri, M r.Ga urav and M r.Tanmaya 1\ga rwa I, A.dvocates versus PRIVATE LTD. . .... Respor1cient rough: Malhotra, CJPH M r ] ''11")lf'!JPll ::--n, IL. • --. - "'- I :.J', <L. u . SHP,EE Rl-'\j TR,U, ELS & TOUiRS LTD.· t:,( ORS. . .... Petitioners Thro'JQ ll; Mr.Sunil upta, Sr.Advocate with MrJatin Zaveri, IMr.Gaurav Agarvva I a ncl M r.Tanrnaya ,4ga rwa :I, ;L:\dvocates versus DESTIN.I-J,Tl0f1J ,=THE VVORLD PRiV/\TE L ..... Respondent Through: Mr.Anindya Malhotra, Advocate C::RLM.C. lJLJl:J[2'011 S H REE FZAJ TR/\ LS & TOU LTD. & ORS. . .. ". PetiUoners Mr.Sunil Gupta, Sr.Advocate witil Mr-.J n Zaveri, f.\garwal and Mr.Tanmaya Aqa rwa I, Advocates Ct·Uvl.C.l\!o.l056/2CU.l 1.\r 'T!t'lttcors Page 2 of V S1 ver-sus F THE VlfORLID (SUBCOI\IT/11\!E PRIVATE L ..... Respondent Thi-cugh: Mr.t\nindya Malhotra, Advocate CRLM.C 1175/2011 SHREE RAJ TP\A'VELS 6( TOU LTD. 61 ORS .. ·r::roug h: .. ... Petitioners Mr.Sunfil Gupta,. Sr.Advocate with Mr.,jatin Zaveri, Mr.Gaurav Aga and M r.Ta nrnaya AgarvvaL 1-J,dvocates versus DESTII\lATION 01= THE \NORLD (SUBCONTINE PRiVATE LTD. . .... Respondent Throuc:;lll: Mr.Anindya Malhotra, .Advocate CRLM.C. 1116/2011 SHREE RA.J TP\JJNELS & TOU LTD. & ORS. .. ... Petitioners Through: Mr.Sunill Gupta,. Sr.Advocate. with r.jatin Zaveri, IMr.Gaurav A.ganNal and Mr.Tanmaya ,1:\garwal,· vacates versus DESTIN.,6,TiON CF: THE \/\/ORLD LTD.. . .... Respondent Through: Mr.Anindya Malhotra, /\dvocate riRl M C ] 1--v,J•r;r·;l11 '"- " " - " J SHREE P\AJ TR.JJ,\IELS 5( TOU LTD. 6( ORS. .. ... PebUoners Mr.Sunii Gupta, Sr.Ad\Jocate with :-.jlatin Zaveri, Mr.Gaurav Agarvval and Mr.Tanrnaya Cri.IVI.C.No 1056/2.011 8t connt:'cted matters Page 3 'Jf 27 ·:-l / Ag a rv,ra L "i'l.clvocates versus F THE WOHUJ (SUBCONT!NE!\!T) ..... Respondent Th(ough: Mr.f1111indya l\dvocate CRLM.C 1119/2011 SHREE RJl.j 6( TOiuiR5 LTD. f)( ORS. . .... Petitioners Mr.Sunil upta, Sr.f\olvocate with IMi-.Ja.tin Zaveri, Mr3::Jaurav Agarvval and Mr.Tanmaya Thmugh: Aga rw.ail, 1-\dvocates versus DESTil\!t\THJ·N F THE \NOH (SUBCONTJNENT) PRIVATE LTD. . ..... Respondent Thmugh: Mr.Anindya Maihotra, CRLM.C JJU]J./2011 SHREE RAj & TOUR.S LTD. & ORS. .. .... Petitioners Through: Mr.Sunil. Gupta, Sr.Advocate with Mr.Jatin Zaveri, Mr.Gaurav Agarvval and Mr.Tanmaya Aga rvval, Advocates versus 1\l F THE WOR (SUBCOI\lT!NE PRiVATE LTD. . .... Respondent Through: Mr.Anindya Modhotl-a, Advocate CRLM.C 11.8:3/2011 SHHEE HAJ TP.!\\/ELS 6( TOU LTD. f)( ORS. Thrc gh: """"" Petitioners Mr.Suilll Gupta, Sr.Advocate with h'lr.jjatin Zaveri, Mr.C:.Iaurav Cri.M.C.I\Jo.1056/2011 & co!'n2ct2d matte1·s Page 4 of ;! (o /\ga(\1\Ii:JJi c:11d 1Mr.Tanmaya · Agan!Vai, /.l.olvocate5 versus DESTIINATiON F THE \1\!0PJJD LTD. . .. , Respondent Tll!-6ugh: Mr. 1inclya Malhotra, t\dvccate CRLM.C. 1 :ufr,6/(2011 5 H R E E .. D 6' !\ ' u \ : l \; t.J ' j-}\}-\ ELS &, LTD. &( ORS. . .... Petitioners TllnJc.Jgh: Gupta, Sr.Advocate vvitrl Mrjatin Zaveri, Mr.Gaurav Agan/\1:3!1 and M r.Tanmaya Agarwal, 1-\dvocates Vei"SIJS F THE \NOR!L D PRIVATE LTD. . .... Respondent JV]r '' io-1d"'ri Malhotr-, Ad''C'C-:''tP i ... I .,,w;, .1:1 ,.Jy.c .. Clp ,: o_\.:.... ,.....,Rl M r: 11 .1 c:- 7 "/lOlll L. '>. • • _ _, .L •• /r- . SHREE Pu6J TRD,\/ELS & TOU L 6( ORS. . .... Petitioners ·rhrough: Gupta, Sr.l-\dvocc:rte with lr.J] n Zaveri, Mr.Gaurav ,L\ga l"'vVOi I and M t·.Ta nrn:aya P .. aanNai, vocates ._.. j versus DESTINATION OF THE \/\fOR PP.IVATE L ..... P.espondent ThroL-'gh: i\/1r,.6,n)ndya Mcdl1otra, .Ad\locate CRL.M.C, 118:0/2011 c 1.1 R -t-E p 1\: c.- ·1 c ·rn p · -,1 [-i _}! 1 \ _ 1: \l-\) :...... , __ ._) I t_... 1, \ .. _.. __ --· • £. Q.D c \Y. i\..J. ..... cu ! C . ...; f"'1r.Suni Gupta, Sr.!-\dvocate Cr\.IVLC.No.1Cl.56/2011 cornectecl n:atters Page :3 vf -;j (( with Mli-,Jiatin Zaved, Mr.Ga urav Agarvval and Agan;val/ l'\dvocates vers:.!J::; DESTINI\TIOl\1 ;= THE \/VOHLLI (SUBCOI\!Tii\JE ) PRIV/J1TE D. . .... Respondent Thr·:::;ugll: Mr indya Malhotra, Advocate CORAIM: HON"Bl.E MR. jUS.T/ICE PHfl\[)1[/E/!J: NAII\ijDRP\jOG l. \1\fhether-the P e1Jo1-ters of iucal mav be to See t ile ) j .,\_.J1:.J! L.

¶2To be refen-eo C(,eportel-or not?

¶3VVhether tile judgment should be reported in e Digest? PRADEEP ;. L Briefly stated the facts leading: to filing of t!1e dbOVf_ captioned petitions ar-e that respondent i.e. 'Destination of. World (Subcontine Ltd.' .a connpany registered under the Companies 1-Kt filed 15 comp aints under Section 138 of the Negotiable lnstr:J;i-nents .Act, 1881 (hel-einafter 1-eferred to as the 'f\1! 3 cheques I 119 the subject matter of each complaint Petrtioner No.1 i.e. !Shree Raj Trav'els 5( lours Ltd. 1 a compa:ly r-egistered under the Companies P .. ct was irllpleaded as accused f\lo.l and petitioners 2 to 7 vver-e impleaded a2:; co-accused on the al!eQiation that as they were !nc:l-large of ci1e day to da'/ affairs of the company and llence vvere vicariously liable for the defaults of the company. The cornpia:nt was riled the Court of f.-'lolditional Chief MetropoiHcal·! (hereinafter referred to a5 the C.i\lo.l056/201:L Bt CJ!Y matters Page 6 o·i ;t"l -:-! :-! {2// New Delhi .. inter-alia, ,a,re ng that the respondent cornpany a1nd the :;'::cused No.1 com.pany had entered intc 2 agreements irl tern:s whereof e accused No.1 company had issued 45 cheques drawn on State Bank of . Branch, in favour of the respondent cornpanyi which cheques when prese encashment by the respondent compa\-,y with its Banker 100 Bank Delhi, were 2nd upon the cheques being returned the respondent corn par :y is:::,ued 1·1 ces contemp.laV::::d :Jnder proviso (b) to Section 138 Nl from to the accuse.d '· No.1 company which failed to (nake payment in respect of the sum for which tile cheques were within 15 days of the receipt of the said n ces. \Nith respect to the jurisdiction of U'1e Courts at Delhi 1Nas pleaded that for the reason the respondent company hacl presented the cheques in question for collection with its banker Bank situated in Delhi, the hacl the necessar-y jurisdiction.

¶2may be noted at the o et at after the complaints were filed, the comp·any filed a suit beariwj No.SS0/2010 in wilier! petitioner r.Jo.l was as defendant befor·e the High Court of Bombay prayiing for a decree to be passec! in the prinC!ipal sum for which the 45 cheques forming of the aforesak;l complaints were issued. !n tile plaint, jurisdiction of thc-: Courts at Mumbai was pleaded on e averment that agreement ptJrsuant whereto cheques were issued wa; executed at I\!Jumbai as also that the cheques ln question were drawn and iss ?d at Crl.IVLC.r'>io.1056/2011 iS, cor,'lecteC: matters Page 7 of 2'.7 :-

¶3Taking cognizance of e complaints, tile learn,::d Jl,CiVJM SUITiiTloned e petitioners to face trial for· an offen'ce punishable under Section 138 of e 1\J.L Act.

¶4Upon service of the summons, the petitioners filed application(s) IJnder Section 177 Cr.P.C. inter-ana stating that U1e courts at Delhi have no jurisdiction to take cognizance of complaii--;Jts · and prayed that complaints be i-etumed to tl1e to be filed in the court of competent jur-isdiction. Together with the sa1d application(s), petitioner-s 2 to 7 fil·erl appiication(s) seeking exemption for per-sonal appearance before Court. Dismissing a ppl ication(s) :::eekinq exemption frorn personal appearailCe and keeping pending, fer consideration, app!ication(s) filed under Section 177 Cr.P.C. vide ol-der elated 25.05.2010 e learned ACMM issued bailable warrants ac;;;ainst petitioners 2 to 7.

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

23.09.2010. thereto, petitioners filed petitions seeking Special Lea\/e to Appea1l ioefor-e the Supreme which were disposed of vide dated 14.1.2011 with a direction to the lean1ed Jl,CMM applications filed Section 177 Cr.P.C. vvould be disposed of within 2 weeks.

¶6Vide ordei-dated

14.02.2011 learned ACMM dismissed the application(s) under· Section 177 Cr.P.C. fi!ec': by the petitioners o:-: the gmunci ilJ:at in vievv of the dictum of law laid down the Supreme Court in e decision Cri.M.C.No 1056/2011 & ccnnected matte1·2 Page l'5 of 21 -;-j :- { reported as (2004) 7 SCC 338 Prasad v Roop La/ linda! once the r,1agistrate hc:1s ken cognizance of ::1 complaint he ilas ilO power return the same to complainant with a direction e same be filed in a court of competent JUrisdiction.

¶7by the order dated 14.02.2011 passed the !earned the petitioners have filed the above-captioned petition(s! Section 482 Cr.P,C. this Court to courts at no jurisdiction to take cognizance of complai in question and seek directions to the learned ACMM to U1e san1e for filin9 befol-e the of Competent juri:;diction.

¶8lt is the case of the petitioners that the cheques m question were dr-avv at Mum i. The drawee bank is a= M urn ba i, notice issued by the to the petitione' company was received at Mumbai and thus merely the respondent posted the notice from and deposited clleque wit!! its bank at Delhi would not confer· jurisdiction on Courts in Delhi.

¶9Tile issue i-1as to t1e debated Jlfi ,-eFerence to Section 138 of the Nl and the applicaiiJ>ie provisions of the Code of Crimi.nal Procedu(e i.e. Sectiorrts 177, 178 ancl 179 of the Code of Criminal Procedure.

¶10d·e.c-:c::i'·,n · n·"jJOrtpr· 10aq· il')

1._. I ._, .I l__, ' 1 ! c II- ....... ·d ... } J -- \ I J sec s1c, KBl7askaran lis.. VCi'lQ'l.Ivan Balan <'.Sf An,r., the Supreme Court has opined, afte1-considering 5ecUons 17E to Section 179 of the Code of Procedure, that ar. CriM.c.!\lo.1056/2011 P1. CD'liWc.ted matters Page 9 of 2: [ ;) offence rnay be cornpleted in d rent localities and thus can be '-rl· e,nJ in :::1 n v r·,J IJ. 1·i·1 '1;::; u '"'O L . J, J , C. ,, y .,,... • "'- >' \r 1 I. ,_J jrcJrisdiction over said localities. To (J it pitllily'" iln to territorial jurisdiction, qua an offence, !a1v ;-ecognizes more than j court !laving terr!tonai jurisdiction 2nd the issue of territoria> ju,-isdiction would ilave to be decided with reference tc vvhether a part of c;,i-, offence vv:as con1mitted territorial jurisdictio ,Jf a court. e issue is no longer-res integr-a and I just to note the decision of the Supreme Court in KBhaskarai!'s case (supra) and highlight that the aforesaid is to be cuiied out fron1 paras 11 and 1:2 of the said decision. ll. The next logic;:;;\ question \Mould be, vvhat are the contours of 5ecticw l.38 of the f\11 P'-ct pertaining to acts to be perforrned in to an ofFenr:::e contemp!atec:l by tl-!e said Section? ha iy be re-errqohaslzed that it are acts of commission or on:i.s.s:clr··: \Nhich c:or·stitute offences, with or without the requisite iTlens rea. rje nding upon vvhether the offence is an abs.:-;. ute offence or not.

¶12Let me thus i-ro(2 Section 13E\, Nil which reads as under:- \1\!here any cheque drawn a person on 2n account: maintail'eol by him vv a banker. for payment of ai-;·y· amount of r·noney to anotl1er person fmrn -out of that account for dischar9e, in whole or in pal-t, of any debt or other liabiiity, is returned by the bank unpaid, either because of the anwu of money standing . to the credit cf that ac:coLiiTI: is insufficient to h"r•our 11-he w:' ."'r Ur·t i·J-j-hrn U _, • '- • __ .1 __. J.

¶0. _ \..._.,. \, ':--v· -l-I J II 4 ...._ arranged to be 'Jaid fmrn at account by an Cr! i\11.C.I\Jo.l056/2011 iSt U'nl-,ecled matte1·s Page 10 of 7...7 1-: JG ag reernent n! a cl e with til at :bank,, such person shall b(? deen1ed to have CDr-nrT:titted an offence and shall w Ltlout prejudi1ce to any other provisions of this Act, be punished wiith imprisonment for a term may extend to two year, or vvi fine which may extend to tvvice the amount of e cheque, or INitll both: Provided that :-t·Jthing co i:led in this section shall apply unless-

(a) The cheque has been pr-esented to the bank within a period of six m the date on which it is drawn or withrln the period of its validity, whiche·Jer is earlief-,

(b) The payee or-tile holde:- indtJce course of the cheque, as the case may be,, makes a demand for the payme of the said arnount of money by _giving c!r 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 ch ues as unpaid, and

(c) The olra\Net-of such cheque ils to make the payment of the said amount· of money to the payee or, as the case may r the holder in due course of e cheque, '\llfithin fifteen days of the receipt of the said notice. · Explanation: the purpose of thijs section. "debt or othe liability" means a legariy . enforceable de or other

¶13In Bhaskaran's (supra) e Supreme Court had an occasion to deal w· the issue territorial jul-isdiction in relation to Section 138 of the and of necessity, the discussion reouired tile Suorer11e Court to ' ' ' various acts of commission and crnissioni· constituted the offence punishab:E: under Sec on 138 ·6f the .N! l\ct and suffice would be llighligllt H1at in para 14 of the ' Cri.IVI.C.I\Io.1056/2011 Rt con nee red matre:·s Page 11 of27 ":·j :-! l7 [ decision, the Supre:T:e Court f! that there are 5 acts which are the components of the offence punishable under Section 138 of the 1\il Act and 11 re-produce the same from para 1·4 oF the decision of the .'Supreme Court. They read as under:-

(i) drawinq of the cheque,

(ii) presentation of e cheque to tile bahk,

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

(iv) giving notice in writing to e drawer of the cheque demanding paymenr of the cheque nmount, #

(v) failure of the di-avver to make payment within 15 days of the receipt of the notice.

¶14After holding at acts constitute the· components of an offence under .Section 138 of the Nl Act, in paras 15 and 16 the Supi-·erne Court observed as under-:- /{15. it is not necessary that a II the above five acts should have been perpetrated at th.e same locality. it is possible that each of those five acts could be done at five diffe(e localities. But a concatenation of all the above e is a sine qua 11on for the cc.=t:--:1pletion of the offence under Section 138 of tile Code. In t!lis context a reference to .Section 178(d) e Code is useful. It is extracted below:

¶16Thus it is clear, if the five different acts were done in five different localities .any one of the courts exercising jurisdiction i11 one of the five iocal areas can become the place of thai for tile offence under Section 138 of the A.ct. In other vvords, the COITI!=''lainant can choose any one of Cri.M.C.No.l056/20E &. connecced matter:o Page 12'. of27 --:-! -:-! ·-r l)) those courts hc:wing jurisdiction over any one of the local vvithin the territorial limits of which any one of those five acts vvas done. As arnplitud(:: stands so . and so expansive it is an idle exercise to raise jurisdictional question t-egra1oling the offence under Section of the Act. II (Etnphasis Supplied)

¶15On the issue of service of notice to be given by the complainant to the accu:::;eol., the Supreme Court observed as under:- "17. The more important point to be deddeol in this case is whether the cause of action has a1risen at ali as notice sent by con1plaina to th.e accu

1.tu'as returned :as '\mclaimed' • e conditions pertaining to the notice to be given to the dravver, have been formulated and incorporated fn clauses (b) to {c) of tile proviso to Section 13:8 of e JJ1ct. The said clauses are extracted below:

¶18On tile pa!-c of the payee he has to make a demand by "g:iving a nohce''f in w ng. that was oni'y' requireme to complete offence on the failure of tile drawer to pay the cheque amount within 15 days from the date of such "9 ivi ng ", the travails the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay e amount si-wuld be within 15 days "of the receiptrr of the said notice. It is, therefore! clea1-that "gi\l'lng notice" in the context is not the same as receipt of notice. Giving is a process of \Which receipt is tile accomplisllment is for tile payee to perform the former process by e notice to the di-awer at the ccHTect address Crl.fVLC.I\Io.1056/2011 g,, COIWCded matters Page B of "l.1 -;·! 2 0. !f a stri i nterpretaborr is given that the drawer-should have actually received the notice for the period of 15 days to start running n.o matter that e payee se the notice on the correct: address. a trickster d1eque drawer wou1d get the pren;iu:il to avoid receiv1ing the notice by different strategies and he could escape from the legal consequences of Section 138 of the ,Act. must be borne :n nnind tha e court should not adopt an interpr:?tation which helps a dishonest evader and cii 1Js an honest payee as that wou!d defeat the ve legislative rnE:asr,Jre,

¶21.... Tile context envisagecl ln Section 138 of the Act invites a liberal e retation for the person who has the statuto1-y obligJation to give notice because he is presu1T1 to be the loser in the transaction and it is for his interest the very provision is rnade by the The words in clause (b) of ·che proviso Sectionl38 of the i\ct sllow at ti:e payee has the statutory obI igation to a ke a demand" by_ Qli ng notice. The thrust in t:v::' c!ause is on e need to "make a demand". it is only the rnocle fo1-making such demand whicl--:, the legislature has prescribed. /J., payee can send tile notice to1-doing his part ifor giving the Once it s despatched his part is over and e next depends on Vlfhatthe sendee does. 22, It is well settled that a nr.Jtice refused! to be accepted by the addressee can be presumed tc have been ser'.red on him (.:ide l--larcharar; Singh v. Shivranf2 and jag dish 5/nr__?'/r v. 1\fatthu Sii7gh3).

¶23Her-e and not as difference pi-esumption e :-tiJt-ice is rneol as undaimed ::::r_::'r'i \1\flll ti•Prc=, bP anv c;ignificani- ·-- ,__. •-.A • d '-· l \._. ..1 ,_ , '\.. "' 00 n "-LI 1 n c-o "far ':>r •,!'J '-"· •C ,J .1 I

01.2.."} II I-'.., cd set\rice is "=OIKerned? rn this l/ Ci""l.iVI.C.I\Io.1056/2011 & Page of 21 i connection a ;-efer-ence to 5(:>:::tion 27 of the Clauses Jc\Ct will be useful. The section reads thus:

¶24No doLJbt 138 of the i\ct does not require that e notice should be given only by " t" ", t I I 1 ., • • I . ' , I . pos . (ne c-=: mcorporateo m Section above) can profitably be imported in a case where sender has despatched the notice by r::::,ost vvith the correct address writtei-1 on it. Then it csm be deemed to have been ser-·\ied on sendee unless he proves that it as not really and that he was not for su1c:h rroon-ser\tice. ,D,.ny other interore iJon can leacl a very tenuous ' - position as dravver of the cheque vvho is liable to pay e amount wouk:l ·resort to e strategy of subterfuge by successfully avoiding the notice. "'5 Th· "'::: L . vvhen a notice returned sendee as sue dc:1te would be the commenc[n,g 1in e period of 15 days conternpic:,tecl in clause (c) to tll1e proviso of Section 138 of the Act. Of cJurse such reckoning would be without prejudice the right of the drawer of the to show that he had no knowledge th2t the notice vvas brought to· his address. In the :Jresent case e accused not even attempt --=o discl1arge tl,,e burden to retJut pr-esumption." (Ernphasis Supplied)

¶16The expr·essions: of the cheque to thE B ::Oflk/ rille! I i-f l"he :f',';fe 0 1/'{::.{:er:e:'p/C :;rc·'-c;: [;Jvere roionw t'r• JC:l/e· . a 1, , .......... , 1 .r t- . 11 . , ; ·' a, L._, , LJ L. } 1 I, different any one courts exercis/ng jurisdiction in one c/ the five loca/ a/-eas can becorne the olace of trial f':or the o/Yence undE·r Section 138 ol' tl7e .l!ct' to . . h ' -f- 'cl' ·- "' , I ] ·'::' -.-,-· l' ·,_ n;- -'- 'e ;111<1 lfl !lr-.'10<:;: IL.;. (-=!no \.J R!l n7·7··f·-J 1/·:::1f7C:, ...... ../ ' .... :' '-·. ,__. ._, ' "' _) -- - ...J. •.• .• il"'" ·-· J ' . . ..... case (supra) have beerJ underst(JOdl many to mean that 8t CDilrected -:-!, -;-! the Court within loc3l lirnits of vvflich e payee Bank i.e. Bank vvhen?. the ck::posited the cheque i.3 situated has the lTy the complaint under Section 138 of the Ni ,t:\ct, and the tmolerstanding appears to be fortified by the observations of the Supreme Court in paras 15 and 16 that if the 5 acts as the ingredient of an offence under Section 138 of the ,l\ct we1-e clone in 5 di rent localities,. any one of the court exercising jurisdlctioi' in any one the 5 areas \Noulc have jurisdiction.

17.. But it is appai-ent that the Cbserrvabqns in para 15 and 16 are an obiter a::; it is not :1 places where the 5 acts constitutii1g an offence under Section 138 of the A.ct can possibly be The act:; can be performed, as would be explained i1ereinafter, on1ly at 4 places and i would immediately state that act No.2 and act No.3 relate to only one place i.e. the place where the bank is located.

¶18The second ar:d the third a the 5 listed by the Supreme Court, as co1:stituting 1::: offence under Section 138 of the f\il A.ct are: (a) presentation of the cheque to the bank; and (b) returning the .cheque unpaid by the drawee. bank.

¶19The third act is e rettwn tile cheque unpaid by the, drawee bank and thus the1 .. e Js no scope for any ar!Qument as to which bank is COi!templated with 1-eferernce to the said act. The second act pertains to the act of presentation of cheque to the bariil<. l iligh!ight thr2 tvvin words used are 'the bank. Cri.M.CNo.1056/20118t conne:;:ed matters Page Hi of7:.7 ' . I ' ' I I'; :.; __ 1·. l f' l\_'1. t·l 'ill" fi)_ 1/l

¶20the decision as 2001 (3) SCC 609 Shri !shar Steels Ltd. Vs. lav,aswa!s Neco / td., a 3 judge Bench of the Supreme Cou !·laving as a rnemloer of the Bench the author of the judgwnc: in Bhaskaran's case (supra), dealt with and decided as \Nhat woufol be rneant by 'the bank' as me oneol in Section 138 of e N! Act. V\/as it the drawee bank or e r>ayee bank? The Supreme Court answe the question in the following words:- " 2 . ( a) \/\I hat is 111 e a n t by, 'the b a n k" as mentioned in

(a) of the pmviso to Section

1.38 of the Neg able !Instruments Act, 1881?

(b)l Does such bai:k mean the bank of the drawer of the cheque or the payee of e cheque?

(c) To which bank the cheque is to be presented for. the 10:1 rpose.s of att1-a cti nq penal provisions of Section 138 of the .P1ct?, are the questions be determined by this Court in is appeal. "; n1-has .,.,. ho ;:J"i-to ""ll _ v .... _ ...... 1 •• J __ e,,_, .... I .... o offence .under-138 of the J-\ct, it is mandatory tin e d1eque is presented to "the bank" within a riod of six ITlonths from the date on whicr11 it is drawn or vvithin the period of its validity, whichever is earlier. is the cheque drawn which has to be presented to "the bank" within the period specified thel-ein. When a post-dated cheque is vvt-ltten or dravvn, it is only a bill of exchang]e. e post-dated cheque become a · cheque under 2 Act on thr:::: date which is written orn the saicl cheque ancl the six months' Cri.M.C.f\lo.1055/2011 81 c::mnected 1Ti.'1t:ters Page 1.7 ofn - ·.-! - ! :l>1 '/ periocl has tc be reckoned., for the purposes of Section 138 of the Act, frorn the said date.

¶8Section 138; provides at vvllere any cheque drawn by a person on an account maintained by him with a1 "/Janke/' for payment of any amount of money to another person 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 cred:'= that account is i.nsufficient to honour the cheque or that it exceeds tile .::"mount to be paid from that account by an agl-eerne made that bank, sucii per-son shall be deemed to have com miitted a. n offence pun ish able vvith imprisonment 3S prescribed erein subject to the condition::- mentioned in clauses (a), (b) and

(c) of proviso. the Act defines the "banker' to include any person acting as a banker-and any post office savings loank. :Sectron 72 of the provides that a cheque must in order to ella e the cJrawe;-,, be presented at the bank upon which it 'is d!-avvn IJelore the relations between t!le dr-awer and ::1is banker has been altered to the p!-ejudice of E': aJr-awelr.

¶9The I.Jse of e words "a bank" and "the bank" in the section is an indicator of the intenbon of tile !e9is!atu1re. The former is an indirect (sic indefinite) al-ticie and tl1e latter is prefixed by a direct (sic artie e. If the leg1isiature i nten decl to have the sa rn r:: rn ea n i ngs for "a bank" and "the bank", then:' vvas no cause or occasion for mentioning) it distinctly and differently by L;sing two d re artides. It is worth noticing that the wo "banker" in Section 3 of the Act is prefixed by tile r!fldefinite article "a" and tile \1\/0ird "bank" \Nhef-e the cl1eque is intended to iJe presented under Section 138 is pi-efix-ed by definite a cJe /'the". The same section permits a person to a cheque on an account rna i nta i ned by hir', w "a bank" and Cri.IV!.C.No.1056/2011 8( con.-,e·: .. -erl nBtters Pa<?e 18 of n -;! . makes him iiabie for prosecution if it is returned by " e bank" un id, The payment of cheque :s contemplated by "the bank" meaning ere:Jy wllei-e rson issuingJ the cheque has c=,Jn account. !'The" is the word used before nouns, vvith a spec ing or particulai-ising effect as :pposed to indefin1ite or genera! ising rce of "a" 01- '''an". determines what particular tiling is eant; that is, what particular thing we are to assLHlle to be meant. J,fThe" is alwavs mentioned to denote a particular thing or a pe(50il. ''Tile'' vvouid, erefore, refer i mplicitiy to a specified bank and not any bank. "The bank" ::,eferred to in clause

(a) to the proviso to on 138 of the would mean the drawee bank Oil which the cheque 1s drawn and not all banks vJilere the is presented for collection induding the bank of the payee, in whose favoui-1:+ie cheque is

¶10it, howevf:;-, does not mea 11 that the cheque is always 'cO be presented to e clravver's bank on which tile c:-.eque is issu e payee of the cheque has tilE: option to [Jn::sent the cheque in any bcilllk inclucling the collecting bank where he has his accOL1nt but to attract criminal liability of drawer of_ the cheque such collecting ban!< is obliged the cheque in the drawee or pavee ,i2'ank on which cheque is dravvn _within the pehod of six months from the date on whicll it is sl1ovvn to have been issued.: ...... The non-presentation of the cheque to the drawee bank within e period specified in the section vvo'c..dd absolve e person issuing the cheque of his cr-iminal liabi it)t under Section 138 of the Act \Nhc shall othervvise may be to pay the cheqL:e amount the payee in a civil action initiate,:) under lavv. .A combined readinq of Sections 72 and 138 of the Act would leave nc doubt in our mind that the law . - mandates _ lleQL!f' __ to __ presented at the barik on wrrich :t is drawn if the drawer is to be ------· ---- held crimin::JI i / !ia bie. St!ch __ JQresentation is (1-I.M.C.No 1056/2.011 & COil! nv:tters Page I9 of 27 -;-! :! I .. 2/5 necessarily to made within six months at the bank on which tile drawn whether presented pe:r ::on ally or throuoh another bank_,. namely, collecting 1b:ank of the payee.''' (Einphasis Supplied)

¶21the decision in isha'r iJIIIOJ/s case (supra) hclS been rendered in e context limitation for presentaticn of a cl1eque, the said decision lorings out in no uncertain terms that .Section 138 of the N1 f\ct contemplates that a cheque is required to be prese for encashment to the drawee Bank and at the payee Bank, merely acts as an agent of the purposes of presenting the ci1eque in quesdrJin r encashment to th2 drawee Bank. I,., LL. Thus, t(le 2nd act to which e Sup1reme Court 1-eferred to in Bhaskararr's case as one of e :s which constitutes th::: offence under Section of ti'1le Act vvas pr-esentation of tht:= cheque e drawee bank and needless to s.tate the act whiic.J1 constitutes an ingredient of the offence is e retur-n of the cheque unpaid by thf: drawee bank and us it becornes crystal clear that the 2r;:1 and 3 1-cl act constituting the offence would relate to only one olace Le. place rlere the drarvvee bank is located. ' '

¶23These are r-y humble to llold that the observations in par·as 15 and 16 l1ave to be read as an orbiter and tl1us tile 5 acts conten-lplated as constituting the offence are of being performed not in .5 but only in 4 places and since deposit of f' cheque with the payee (·,-··;Ilk 'c rtot· i('nh:::q-npbt<PC1 -,c ?n ·,n .. gf 0 '·G 1l.P'>'"'t nJ .JC, I' l=:J uJ \ ._..,\..Jl.. !l...'-••: ... )Jol !II c I ... ......,u t d offence, the p!a:ce INhere the pa e bcmk is located \Nou'id be Cd.M.C.I\Io.l056/2011

¶81connected Page 20 of irrelevant for pL:lr'fX'S<':":::; of dete;;rnining jurisdiction of the criminal court.

¶24it is settled iaN that a decision is an autlhority for the point it decides and not what can be logically deduce.j therefr-om and the of a decision has to be rgathererj with reference to r2 facts of a ca:'::e and high!ight onl; one decision of the Supreme Court being the decision reported as Dhodha /fG_U::?e v Si'Cj})'ainqi (2006) 9 SCC 41.

¶25The matte!- reg:arding jl!risoHct1on can also be decided vvlth reference to Sectioll 6, r3er::bon 7, 64 and Section 72 of the Ni /J,ct

¶26The re'ievant r:::,ot-tion of. Section 6, Sectior1 7 and Section 64 of l\n 1-\ct ;:F·;d Sectio 72 of the Nl t\ct reads a::; under:-- Section 6. Cheque: - A 11 Cheque" is a biH of exchange dr-avvi--: on a specified banker· and not expressed to be payable othervvise than on demand and it 1nciudes the electmnic image of a ttT!llcated cheQJ)e and a cheque in the electronic . ' for·m. )( )( )( Section 7 .. The nlaker of a of exchange or Cheque is ca I i ed "ci rawer"; per::: on thereby dil-ect<:=.:d to pay is calleoi the "Dravvee". )( X )( Section

¶64Presentment for payment.

(l)]Prornissory nctes, bill:s exdr1ange and cheques must presented for payment to the maker, acceptor or drawee tllereof respectively, by or on of the holder as hereinafter - id nr •i 'I·- rr, '. '-·, ,(r1t t'"' p I 0 v' E_ . I I ! l. ,_ cl J. l T s L! I I p J e s re lrl Ull e d ' .Jlc Cl'i.!'vi.C.f\;cd056/2011 iS< matter·s Page: .ZJL of 27 ·;! -;! ! other thel-eto are nut liable thereon to such holder ....... )( )( )( Section 72. Subject e provisions of section 84 a cheque must in omler to charge the. drawer, be presented at e bank upon which it is drawn before the relation between the drawer and his has been adtered to the prejudice of the

¶27f-\ co-joint reaciing of Sections 6, 7, 64 and 72 as of Section 138 of the ;:::\ct brings out that in orcJer to attract penal pr-ovisions of Section 138: of the Act a cheque is required to loe presented for-encashment to the drawee Bank and that the payee Bank acts as an agent of for the purposes of presenting cheque in question to the dravvee. Bank. The corollary thereof is no pa cause of action for the offence punishable Sectio l3B of the Act arises ir1 the Court within the ,,,ocal l!mits which the Bank of the complainant e. payee Bank is situated and thus saic' has no jurisdiction to try a con'lplaint under Sectior. 138 of the 1\11 Act filec! by the COiT11p!ainant.

¶28This takes me to tile of second questior involved ln the pn=:sent case i.e. vvhether the court withir local liimits oF wllich tile p!ace from where thE complainant had sent a notice under proviso

(b) appended to Section 138 of e 1\H Act is situated has the jurisdiction to a complaint fil Lmder Section 1:38 ofthe NIAct. C!'!.IVl.Ci\Jo.l056/2011

¶0con ;-;ntterc; Z2 of 27 -L%

¶291 have alreacJy noted e oiJservaUons made by the Supreme Court in c,::!Se in the foregoing paras and would l';iglllight th,at in paras 17 to 23 the Supreme Court has reflected u n the limitation within which the notice to be QJ n to the accused. The Supreme Court was the expression 'giving a notice' in proviso

(b) to Section 13/3 of the t\ct, vvith reference to the 15 days' time contemplated tl11en by which the requisite notice had to be sen112d, wr!iich time is now 3C days.

¶30decJsic:l of the StJjCJf-eme Court, reported as

(2009) 1 SCC 720 /-/annan Ele{-tron/cs ,Private Lilnited 1/ National Panasonic 1iJCJ!a Private Ll(nited is worth noting on the subject.

¶31In Hannan's c2se (supra) tile question which had arisen before the s,_!,Jreme Cou Vll3,'3 pr-ecisely the same ·,question which arist::s for considel-ation in the present petition i.e. whet)-Jer e court w in1 tile limits of which the place from vvhe:-e the l1ad sent a notice contemplated uncle:- proviso (b) Section 138 of the .L\ct is situated has the Jur-isdiction to a complaint filed under Section 138 of the l\1: .. !:l,ct. Answehng) the aforesaid question ln the negative, H'te Supreme Cou Clbserved as under:- "12 ...... The oniy question. therefore, vvi1icll1 arises for cons:del-ation is at as to whether· sending of notice from Delhi tself would give rise to a cause of aeron. for takinQ cognizance under U1e Negotiable nsu-uments /l,ct Cri.M.C.No.1056/201J ::St ma1:ters ·;-! -;

¶13It is thing to s that sending of a notice is one of the ing ieilts for rnainta,ining the compfai:-:t but it is another thing to say that dishonour of a cheque r::::1y itseif constitutes an offence. Foi-tile pul-pose of proving its case that the accused had commtitted an offence under Section 138 of the Negotiable instruments Act, ingredients thereof are to be proved. VVh would constitute an offence is stated in e main provisi!on. The proviso appended ereto, however, imposes certain conrjitions vvhich are required to be fulfilled before cognizanG:: of the offence can be taken. If the for constitution of the offence I aid down in proviso::; (a),. (b) a ndl (c) appended tc Section 13S uf the NegJotiable Instruments are inter1dedl to be applied in favour of the c:ccused, therE: cannot be any doubt that receipt of a notice wouild u mately rise to the cause of action fo( n lng a complaint. ;!\s it is only on receipt of the notice that the accused at his own pecil may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read. gJether. of notice would not by itself giive rise to a cause of action but communication of the notice would . ....... For consritution of an offence under Section 138 of the Act, the notiu:: rnust be received by the accused. iT may be cleern1ed to have been i-eceived in certain si ations. The vvord "communicate" inter alia means "to make known, infom:, convey, etcll.

¶20. .... !-\ court oler-ives a jurisdiction only when the cause of action arose its jurisdiction. The same be conferred by any act of omission or commission on the part of the accused.

16.. distinction m also be borne in mind betJVeen the ingrecli2nt an offence and commissim1 of a part e offence. V\fhile .issuance of a notice by the hplder of a negotiable Cri.I\/I.C.I\Io.1056/2011 &. co nected matters [Jage 24 of 2.7 .Jc instrun!lent is necessar\!:, _ thereof is also imperative. Or1ly on a serv1ice of such notice and failure on e part of e accused to pay the demanded c:rnount within a period of 15 days thereafter{ e commissio of an offence completes. of no-bee therefore, cannot hc:ve over the service. is only from that view of the rnatter that in Daln?ia Ce;nent (Bliarat) Ltd v. Galaxy Traders & Agencies Ltd emphasis has been laid on service of notice." (Ernphasis

¶32At a first b:usf·: readino of e decisions of the Suc 1;rerne • IJ' I d '..[ . ,. ' ,, I O• IJ l'il 1'")/'7 -1 c, ... /':J r _-;c. rl rl ' ;'I ,:J ro-;• r--o· c; --::• c 0 s ( c ,' i ;' i"iL''' n--,·;::, y .::::.._ ' G._.) - 1 • I J ,I ·'-'_!.._!_ .__j '--' C 1l _. ,_- -..:) u, (.A I I I •......J strike to the reader-that there is a co ict between the two decisions inasmuch 2·5 in Bha.5karan's case (supra) it was held that the · 'giving of notice' occurring in proviso (b) to Se on 138 of the Act means 'sending of t:otice' whe:-eas in Hannar(s case (supra) it V\l'as held that the said expression means of

¶33A careful 1-ead:ng of the tvvo decisions shows that is no conflict b een the sai-:j dr::>cisions inasmuch as they have been renderecJ in differe:lt contexts. The decision in Bhaska}an's case (supra) was rendered in e context Jf stal-ting point of [irr:itation of 15, days prescribed in proviso (b) to Section 138 of the hH Act and was in that context i.e. the context of limitation that it was held :by the Supreme Cou a,t the e ··,( n l-os c: ii 0 l'l _.., \\..-'- c: ......J giving of notice' occun'"ing in provisrJ (h) to 138 of the Act n1eans 'sending or notice' . The decision Harn;an's case (supra) \AJ;::,c rn tl-:0 \li'-t 0 Yt nj Of acf'l(l"l .cl·I;!<O a ' t:::: . - ....... I" _I ' - - .J' I t::,'.. -..} ---' L ..J L '"" . l_,, I ' ':::1 complaint uncler Section 138 r\n r}1ct jurisdiction of a co.ut-·L 'n H-,;,t ;-,tr--·t ;t "'''c ·1>1e1rl lu--·; i:-he !'--' L d I '- , .. I ... I - l.! , .. I ·- I v v c, _, ·I ' } ,_I L ' C'!.lv1C.No.1056/2il11 1St m:::ttcrs Page ?.5 of :n .-! - '! C:up·-el"l·'-' .. .,J ·-''I - ! ':: u occurring in l I I j"-" ·:.., __ ) \1 'receipt of' not.ice '. I at the e)qJression giving of not(ce

(b) to Se_. on I38 of the Nl ,!\ct means

¶34Now, same expression c::m have differe in different context as held b)i tile Supr-eme Court in the decision as Malik La! J11alutndar v Gourar:@ C'Jandra

(2004) 12 SCC 8 vvherein it was observed tllat a word occuiTi:-:g in a statutory provisilon can have different rneanin91s in d1fl'erent co11text the sarne statute.

¶35Thus,. the conclusion would be that the act contenlplated! as an ing1reolient of thre offence as highliglltecl in l3haskqran's \i.e. 'giving notice in writing to the dra we;- of c/;eque' den7ano'i/7g pay;nent of tl7e cheqUe arnount for purposes of limitation would have a meaning as explained in Bhaskaran's and for purposes of jurisdiction would have a meanjngl as explained in lsh3r A!/oJ!.S case (supra)

¶36Befol-e conciL:cling I woufd De faUing not to lodge ,a caveat. With and facility at p1:1r of clearance provided by :oa nkers and n metropolitan cities,. \Nilere cheques are cleared by beir.g presented to tile dr-3\Nee bank but at branches of the concerned banks, the subject nr:atter of jurisdiction m2.y have to be keeping in vi:ew that the dra,rvee barl:k has created ar; a,gency where the cheque in question is transmitted :- cle;:vance and e s s vvflet-e tine dearance takes place would -\1-n'Jah!·,. t::.J I ::J I L' )I Crl.!'v1.C.No.1056/2011& co:-!necteci matters beconne the place where Page 26 of 2'7 -;! ---· - --: ri! '.1 , I • I ;·; : bl I 0 : I'll : ''.' ' I I i ·.,I: \l. '. : l r a . IY -!1 i! II i:l JJ -'. J the cheque woulcl !Je required to be tr-eated as presented to 'the bank' e di-awee bank. B , in such circumstances, propedy constituted have to be found in a cornp!aint and !o glng the caveat/ I leave it at that for t!:e debate to be pro1Jerly argued in an appropriate case v;ith the necessary rrel2vant plead:ingJs.

¶37hold Cit ,Jn the pleadings in the complaint(s), no pa of cause action can be saicl to have accrued to the C)rn pla ina ·c:::i r:i: that tile notice demanding paym 2:·1t \:1'?,c; c=>IJ:rll. c=•rji--.1 :::;.:- e-rLI'n!c=>q·ue J ....JJ .._,. V -J - I , J, , .J ;_.J '- ' . J . ..... .._, ... '-- .__, \r\f e payee bank at Delhi vvould not constitute the 2cts contemplated as ngJredients c:m offence punishabie urdc:r Section 1NI and thus i dispose of the petitions the irnpug]ned order(s) dated 14.2.2011 and dir,2ct i Learned M to return complaint(s) to :he respondents rr filing in a Court having territo,-!al jurisdiction.

¶38costs. SEPTEMBER 21, 21.]111 mrn Cri.l\ll.C.No.1056/2011 .s, matters .. <_ .. : . -. (PP/\DfEEP NP\W\lDHi\lOG) - - ]JUDGE ;!

* IN THE HIGH COURT OF DELHI AT NEW DELHI % tudqment reserved on: lf?h September, 2011 tudqment pronounced on: 21st September, 2011 + CRL.M.C. 1171/2011 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 25. Whether the Reporters of local papers may be allowed to see the judgment? 26. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest?