Religare Finvest Ltd v. State & Anr

judgment that the complaint/petition did not show that the cheques were presented at Delhi and rather, the petition was completely silent on tr"J~at aspect. Having regard to the facts and circumstances of the aforesaid case, where it was observed that ~. the parties had been carrying on business at Chandigarh, the transactions took place at Chandigarh, the cheques were issued and presented at Chandlgarh, the Supreme Court had observed that it had no option but td presume that the cheques were also presented at Chandigarh and dishonour of the cheques took place at Chandigarh and hence, mere sending of notice from Delhi itself would not give rise to a cause of action for taking cognizance under the Act. In the present case, mere issuance of a legal notice by thE petitioner/complainant from Delhi alone is not the sole basis for filing th~ - complaint in the territorial jurisdiction of Delhi.· ·As noted in para (3) above; there were certain other acts, which were done within the territoriaj jurisdiction of Delhi, for invoking Delhi jurisdiction.

¶21Apart from the aforesaid judgments, counsel for the respondent _relies on the decisions of two Single Benches of this Court in the cases of ICICI Bank Ltd. (supra) and Achintya Mandai (supra) to urge that the learned Metropolitan Magistrate had rightly returned the complaint to. the petitioner:: for want of territorial jurisdiction. A perusal of the _aforesaid judgments shows th.-at reliance was placed on the judgment in the case of Harman Electronics (supra) to hold that the fVJagistrate -was right in returning the complaint petitions. But the fact position of both the cases are entirely different and distinguishable from. the· instant case. In the case of Achintya Manda) ., _(supra), the learned Single Judge observed th?t the only single fact of the statutory notice being dispatched from Delhi formed the basis of filing thft complaint in Delhi and that alone could not vest territorial jurisdiction orj Courts in Delhi. In the case of ICICI Bank Ltd.(supra), it was observed that the respondents were residing outside the territorial jurisdiction of the tria! court and the bank of the respondent was beyond the territorial jurisdiction o{ the trial court. However, there is no mention in the said judgment as to the -- ------ -------------------- location, where the other acts mentioned in the case of K. Bhaskaran (supra) were done. In this view of the matter, neither of the two judgments can bET stated to be applicable to the facts of the instant-case.

¶22With respect to the submission of the counsel for the respondent that cause of action has to be considered in the context of substantive law viz.,. I a-viz procedural law, it may be noticed that Section 4(2) of the Cr.P.C postulates that all offences unqer any other law shall be investigated, inquired r into, tried and otherwise, dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner 01-place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Cr. PC,· which is the saving clause, stipulates that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being iil force.

¶23In the present case, the Negotiable Instruments Act is the I substantive statute and the procedural aspect of filing of the complaint, and dealing with the procedures to be followed by the trial court thereafter are all governed under the procedural law, i.e., the Code of Criminal Procedure. Hence, reference to Chapter XIII of the Code of Criminal Procedure, which ! deals with jurisdiction of criminal courts, is but natural. Section 177 relates to ordinary place of inquiry and .trial, Section 178 relates to place of inquiry or trial and Section 179 relates to offence triable where act is done or consequence ensues. All the aforesaid three provisions have been particularly explained by the Supreme Court in the case of K. Bhaskaran (supra), as noted above. Therefore, reading of the Negotiable Instruments Act in isolation dehors the procedure prescribed in the Cr. PC, for dealing with the filing of the .1 .. -·-··-------· complaint and the manner of proceeding with the complaint, is neither possible, nor permissible.

¶24As discussed above, the Magistrate taking cognizance of ari offence must not necessarily have the territorial jurisdiction to try the case as well. Only when an enquiry or trial begins, does the jurisdictional aspect become relevant. Infact, after taking cognizance of the offence, the Magistrate may have to decide as to which court would have the jurisdiction to enquire into the case and such a situation can arise only during the post~ cognizance stage. At the pre-cognizance stage, the Magistrate has only to examine the averments, as set out in the complaint and not more, for prima - facie arriving at a decision as to whether some of the acts essential for completing an offence under Section 138 of the Act were done in the territorial jurisdiction of that Court.: In the present case, having perused the complaint filed by the petitioner/complainant without ascertainil]g the correctness of the allegations made therein, prima facie it has to be held that a part of the cause of action has arisen in Delhi and the same is not based solely on the issuance of a legal notice by the petitioner/complainant to the respondent/accused from Delhi, but some other acts done prior thereto, as set out in para (3) hereinabove.

¶25From the aforesaid facts and circumstances, there app·ears no ambiguity on the aspect of the right of the petitioner/complainant to file a complain't in a Court having jurisdiction in the context of the five acts mentioned in the case of K. Bhaskaran (supra). In the present case., as noted ' ' above, a substantial part of the cause of action for filing of the complaint by the petitioner/company against the respondent/accused under Section 138 of the Act! prima facie appears to have arisen within the jurisdiction of the courts in Delhi. . However, it is clarified that_ if after taking cognizance, the noted above, the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts, the acts being, drawing of the cheque, presentation of the cheque with the bank, returning of the cheque unpaid by the drawee bank, giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and failure of the drawer tb make payment within 15 days of the receipt of the notice. It is not essential . I that all the acts should be committed at the same locality. It is quite possible that all the five acts are perpetrated in five "different localities. In such a situation, any one of the courts exercising jurisdiction in one of the five localities can become the· place of trial for the offence under Section 138 of the Act. At the stage of entertaining a complaint under Section 138 of the Act, the Court is only required to arrive at a prima facie opinion as to the territorial jurisdiction, on the basis of the averments made therein, without launching into a fact finding mission as to their correctness or otherwise.

¶17Hence, the contention of the counsel for the respondent that non-payment of cheque amount under Section 142(b) of the Act alone can give ( / rise to a cause of action for an offence under Section 138 of the Act and it is the "cause of action", which has to be seen and not "the act", is found to be untenable and turned down. The five acts mentioned in the aforesaid judicial dicta were clearly spelt out and the Supreme Cd:urt further clarified that each of those five acts could. be done in five different localities. This would naturally mean that the act of presenting of the cheque by the complainant where he is situated, could be in a different city from where the accused and his banker is situated.

¶18The argument of the counsel for the respondent that in the case of Shri Ishar Alloy Steels Ltd. (supra), the Supreme Court had clarified that the words, "a bank" and "the bank" in Section 138 of the Act are an indication of respondent/accused is able to place such material facts on the record which demonstrate that the Courts in Delhi do not have the territorial jurisdiction to entertain the complaint, the learned Metropolitan Magistrate shall still have a free hand to ascertain the truth of the allegations made by the petitioner/complainant and arrive at a different conclusion.

¶26The present petitions are therefore allowed and the impugned · ---~ order is set aside. The case is remanded back to the trial court with directions to proceed further and deal with the complaint of the petitioner under Section 138 of the Act, in accordance with law. The petitioner shall appear before the learned ~lJetropolita n Magistrate on 18.10. 2010 at 2:00 PM.

¶27A copy of this order shall be forwarded by the Registry forthWith to the trial court for information. .~~·---~ ~" ··----··~ SEPTEMBER 23, 2010 ,~,rkb (HIMA KOHLI) JUDGE r/71 RFV P 17Q /"70(JQ Paae 18 of 18

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. No.166/2009 Decided on 23.09.2010 IN THE MATTER OF : M/S RELIGARE FIN VEST LIMITED ..... Petitioner Through: Mr. Vijay Aggarwal, Advocate with Mr.Gurpreet Singh, Mr.Manoj Taneja and Mr. Amit Shrivastava, Advocates versus STATE AND ANR. . .... Respondents Through: Mr. M.N. Dudeja, APP for the State. None for R-2. CORAM * HON'BLE MS.JUSTICE HIMA KOHLI 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? HIMA KOHLI, J. (Oral) Despite service, none appears on behalf of the respondent No.2. Therefore the said respondent is proceeded against ex-parte. For orders, see Cri.Rev.P.No.179/2009. Registry is directed to place a copy of the order passed in Cri.Rev.P.No.179/2009 in this file. SEPTEMBER 23, 2010 rkb c~ (HIMA KOHLI) JUDGE Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. , .. * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRLRIEV.P.179/2((])09, 166/2009, 169/2009 and 171/2009 Decided on 23.09.2010 IN THE MATTER OF : M/S RELIGARE FINVEST LIMITED ..... Petitioner Through: Mr. Vijay Aggarwal, Advocate 'with Mr.Gurpreet Singh, Mr.Manoj Taneja and Mr. Amit Shrivastava, Advocates versus STATE AND ANR. ..... Respondents Through: Mr. M.N.·Dudeja, APP for the State. Mr. Buddy A. Ranganadhan, Advocate for R-2 in Crl. RP-179/2009. CORAM * HON'BlE MS.JUSTICE H!MA KOHli 1. Whether Reporters of Locaf papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? L,_ r I I ____ ..-li, HIMA KOHli, J. (Orad) I' .:2:J 1. This common order shall dispose of the petitions filed by the petitioner as the facts of these cases are identical and raise common question of law. For the sake of convenience, facts of Crl. Rev. P. No.179/2009 are being taken not·e of. 2. The present petition is filed by .the petitioner under Section 397 read with Section 401 of the Cr.PC, against the judgment dated 09.03.2009 passed by the learned Metropolitan IVIagistrate in a complaint case I No.106/l/~~009 under Section 138 of the r~egotiab/e Instruments Act, 188+ (hereinaftc;r ,-efe;Ted to as 'the Act") holding intei- afia that the cou,-t did not have tile terrir.orial jurisdiction to entertain the complaint and returning the CRLREV.P. 179/2009 . ( ---------------·- --- same to the complainant/petitioner, for being presented before the court having territorial jurisdiction to try the same. 3. It is. averred in the complaint petition that the petitioner/complainant is a public limited company haying its registered and corporate office at New Delhi and is dealing with the business of providing its custome·rs various types of loans. It is further stated that the I. respondent/accused availed loan facility from the petitioner/complainant but the account became irregular. Towards discharge of part of the debts, the respondent/accused issued cheques, which when presented by the petitioner/complainant to its bankers namely, HDFC Bank Ltd., Connaught Place, New Delhi, were returned unpaid by the bankers of the accused under the return memo dated 29.12.2008, with the remarks, "insufficient funds". The return memo was received by the petitioner/complainant at Delhi. In para 4 of the complaint, it is stated that the aforesaid cheques were submitted by the respondent/accused at the corporate and registered office of the complainant/petitioner. Thereafter, a legal demand notice was issued by the petitioner/complainant to the respondent/accused frorri Delhi, duly dispatched on 14. 01.2009. As the respondent/accused failed to make the payments of ) the cheque amount, demanded through the legal notice within the stipulated period, the petitioner/complainant filed the aforesaid complaint before the court of the learned Metropolitan Magistrate. The impu