Religare Finvest Ltd v. State & Anr

order passed in CrI.Rev.P.No.179/2009 in this file. (HIMA KOHLI) SEPTEMBER 23, 2010 JUDGE rkb , 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. , ^. f

¶2To be referred to the Reporter or not?

¶3Whether the judgment should be • reported in the Digest? * IN THE HIGH-COURT OF DELHI AT NEW DELHI. + 'CRL"REV,P.179/2009, 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 Aggarwai, Advocate with • Mr.Gurpreet Singh, Mr.Mandj 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 f Crl.RP-179/2009. CORAM * HOWBLE HS JUSTICE HIMA KOHLI

¶1Whether Reporters of Local papers may be allowed to see the Judgment? HIHA KOHLI, J. (Oral) . . • ' ^

¶1, This common order shall dispose 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.17.9/2009 are being taken note of. 'i

¶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 r 'passed by learned Metropolitan Magistrate in a complaint case No:i0621/2009 under Section-138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') holding inter dlia that the court did not have the territoria! lurisdiction to entertain the complaint-and returning CRL.REV.P. 179/2D09 , . ' . . . . •' same to. the comprainant/petitioner, for being presented before court having territorial to try the same. .

¶3• It is. averred in complaint petition petitioner/complainant is a public limited company having its registered anc ' i' corporate office at New Delhi and is dealing with the business of providing its customers various types of loans. It i-: further stated ' respondent/accused availed loan facility from the petitioner/complainant but" .• the account became irregular. Towards discharge of part of the debts, respondent/accused issued cheques,- which when, presented by 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

29.12.200.8,-with 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 registered office complainant/petitioner. Thereafter, a legal derrand notice was issued by the petitioner/complainant to the respondent/accused from Delhi, duly dispatched f on 14.01.2009.-As the respondent/accusedfailed to make the payments of the cheque amount,- demanded through the legal notice within the stipulateql period, the petitioner/complainant filed the aforesaid-complaint before th^ court of the learned Metropolitan Magistrate. The impugned order came to . be passed at the pre-cognizance stage. In other words, notices were not . issued on complaint to accused instead, complaint was. returned at the pre-summoning stage by the learned Metropolitan Magistrate to the petitioner/complainant for want of territorial jurisdiction.

¶4Counsel for the petitioner/complainant submits that the learned • Metropolitan Magistrate erred in arriving at-the conclusion that his Court did i • i CRL.REV.P. 179/2009 X not have the territorial jurisdiction to entertain the complaint. He states that a I perusal of the complaint itself indicates that part of the cause of action arose in Delhi, and the following acts were done in Delhi:-

(i) That'the registered and corporate office of the petitioner/complainant is at New Delhi;

(ii) That the cheques were submitted by the respondent/accused at the, . corporate and-registered office of the complainant/company situated at Delhi. •

(iii) That petitioner/complainant presented cheques for encashment to its banker situated at Delhi. ,

(iv) That the cheques, upon being dishonouredwhen presented to thd bankers of respondent/accused, were returned to petitioner/complainant through its bankers at Delhi. ;

(v) That the legal notice was dispatched by the petitioner/complainant to the respondent/accused from Delhi.

¶5Counsel for the petitioner/complainant submits that while passing ^ the impugned order, the learned Metropolitan Magistrate misinterpretedthe •judgment of the Supreme Court in the case of M/s Harman Electronics Pvt. Ltd. vs. M/s National Panasonic India Ltd. reported as 2009 II AD SC 21. He states that the aforesaid judgment was in fact not applicable to the facts of the present case. It is further stated that the judicial pronouncement jn the' case of K. Bhaskaran vs. Sankaran Vaidhvan Balan Anr. reported a?' (1999.)

¶7see 510 still holds the field and has not been watered down by any of the subsequent decisions on the point of territorial jurisdiction. Rather, if the subsequent decisions down years are perused, the. case of ]C Bhaskaran fsupra), remains the fountainhead has been reiterated from CRL.REV.P. 179/2009 ' . time to time. It is further urged that the aspect of territorial ought not to have been gone into by the learned Metropolitan Magistrate at the pre-summoning stage, said aspect could have been considered decided either ways/even after cognizance was taken. • 6. In support of his subrhission that the averments contained in the complaint petition primg facie revealed it was maintainable within the ' • • . , . , •> ' territorial of Delhi, counsel for the petitioner relied on the following judgments': • , 't f, ^ .K.-Bhaskaranvs. Sankaran Vaidhvan Balan and Anr. (1999) 7 SCC 510-ii. Trisuns Chemical Industrv vs. Raiesh Agarwal Ors.

(1999) see 686. • . ' ' . . iii. Alchemist Ltd. vs. State Bank of Sikkim, (2007) 11 SCC 335 iv. Smt. Shamshad Begum vs. B. Mohammed 2008'(13) SCALE 669 v.. Rajiv Modi vs. Sam'av Jain ,V (2009) SLT 725 vi. Reliqare Finvest Limited vs. Sam^ath Kumar A

(2010) JCC (NI) ' • ^ vii.' Patiala Casting P. Ltd. &. Ors. vs. Bhushan Steel Ltd. 2010 IV AD •i r

(CRL)(DHC)266. ' . ' ""V ^ • f • • 7. Per contra, counsel for the respondent supports impugned judgment and submits that the same does not deserve interference. H,e in states that in the present case, the distinction between the term, "cause of • action" and ''offence"-must be understood-. He relies on the provision of Section 142(b) of the Act to urge that the aforesaid provision alone deals with , the issue of cause of action and that the proviso

(c) to Section 138 of the Act postulates that the said' Section would not apply until the drawer of the CRL.REV.P. 179/2009 cheque falls to make payment of the amount tD the holder in due course of the cheque, within 15 days of the receipt said notice. He, therefore,, I submits that the location where the. major part of the cause of action arises:> i.e., the place where the cheque on presentation, is dishonoured has to.b.e examined for deciding issue of_ territorial jurisdiction. •To fortify his submission offence under Section is completed only on non-; payment of the amount, as contemplated in proviso(c) and the locality where the drawer fails to make the payment within 15 days of the receipt ^ notice, is of primaryconsideration,he relies on the followingjudgments: i. Shri Ishar Alloy Steels Ltd', vs. Javaswals NECO Ltd. 2001

(3) f ii. ICICI Bank Ltd. vs. Subhas Chand Bansal 160 (2009) DLT 379 ; iii. Achintva Mandal vs. Chaitanva Aqro Products & Ors. 2009 (108) iv M/s Harman Electronics Pvt. Ltd. vs, M/s National Panasonic India Ltd. 2009 II AD'SC 21 |

¶8In case of K.Bhaskaranfsupra'), question of territorial I^agistrate's Court situated at Adoor in Pathanamthitta District in the State of Kerala, to try the case under Section 138 of the Act,, was under consideration • where, cheque was dishonoured in another District in the 'State of Kerala. The learned Magistrate held that the court did not have the - territorial to try case as cheque was dishonoured by the branch office complainant/bank situated in a different District,. On an appeal preferred by the complainant before the High , • , I Court of Kerala, Single Judge accepted complainant's version that the cheque was issued within the territorial limits of the trial court's CRL.REV.P, 179/2009 and reversed the order of the Magistrate. Aggrieved by the order of the High . Court, the appellant/accused approached the Supreme Court. While dealing with submissions of both parties on question of territorial 'jurisdiction, the Supreme Court observed as below:- "11. We' fail to comprehend as to how the trial court could have found so regarding question. Under Section 177, of Code "every offence shall ordinarily be enquired into and-tried in a court within whose jurisdiction it was committed". The locality where the baok (whsch dishomioyiredl cheque) is situated caonot be r-egarded as soBe criterioo to determine ;Diace of offence. It musf.be remembered offence under Section 13S would not be completed with the dishonour off the cheque. It attains completion only with the ffailure of the drawer of the cheque to pay the cheque amount witiiin the expiry of 15 days mentioned in Clause

(c) of the^ proviso to Section 138 of the Act. It is inormally difficult to .fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section-138 of the Act.

¶12Even otherwise the rule that every offence shalFbe tried by a court within whose .it was committed is not an unexceptional or unchangeable principle. Section-177 itself has been framed legislature thoughtfully by using. precautionary word "ordinarily" to indicate the role is not invariable ip a-ll ca:ses. Section 178 of the Code suggests that if there is uncertainty as to where, among different localities, offence would have been committed the trial can be had in a court having jurisdiction over^any of those localities. The provision has further widened the scope by stating in case where the offence was committed' partly in one local area and partly in another local -area the' court in either of the localities can exercise to-' try case. Further again, Section Code stretches its scope to a still wider horizon. It reads thus: CRL.REV.P. 179/2009 "179. Offence triable where act is done or consequence ensues - When an act-is an offence by reason of anything which has been done and ^ of a consequence which has ensued, the offence may be enquired into or tried by a court within whose local sucl-thing has been, done or such consequence has ensued."

¶13The above provisions in the Code, should have been borne in mind. when question regarding, territorial of the courts to try the offence was sought to be determined.

¶14The offence under Section 138 o1 be completed only with the concateinatioin of a . number of acts. The foSiowing are the acts which are components of the said offesice ° (1) drawing of the cheque^

(2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank;, (4) giving notice in writing to the • drawer of the cheque demanding payment of the cheque amount,

(5) failure drawer to make payment within 15 days of the receipt of the notice.

¶15It is not necessary that all tha above five acts should have been perpetrated at same locality. It is possible that each of those five acts could be done at different localities. But concatenation of all the above five is a sine qua non. for the completion of the offence under Section 138 of Code. In . this context a reference to Section 178(d)'of the Code is useful. It is extracted below; f "178. (a)--(c)

(d) where offence consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas."

¶16Thus it is clear, if the five different acts, were done in five different localities any one of the courts exercising in one of the five . local areas can become the place of trial for the offence under Section Act. In other words, the complainant can choose any one of those courts having over any one of the, local areas within the territorial limjts of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding :ie offence under Section 138 of the Act." (emphasis added) CRL.REV.P. 179/2009 r'

¶9The aforesaid judgment thus clarifies five essential ingredients for completing the offence under Section 138 of,the Act are as below:-

(i) • Drawing of the cheque,

(ii) Presentation of the cheque with the bank,

(iii) Returning of the cheque unpaid by the drawee bank,

(iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount,

(v)' Failure of the drawer to make pavment within 15 days receipt of the notice.

¶10. The aforesaid judgment was echoed by the Supreme Court in the case of Smt. Shamshad Begum fsupral, wherein ifwas reiterated that: "8. It is not necessary that the above five acts shoold have been perpetrated at the . same locallity.. It as possible that each of those five acts could be done at five different localities, But concatenation of ail the above five is sine qua non for completion offence Section 138 of the Act." (emphasis added) - , yMl. • In" the. case of Trisuns Chemical Industry fsupra), while examining the judgment Gujarat High Court, passed in a revision petition, wherein, it was held that a perusal of the complaint filed before th^ trial court showed that there was nothing to reflect any part transaction took place within the territories of the State of Gujarat and the Judicial Magistrate, Gandhidham ought not to have taken cognizance matter and ought not had directed, issuance of process, the Supreme Court held that the |V|agistrate erroneously assumed that for the purpose of taking, cognizance of an offence, Court must necessarily have the territorial jurisdiction to try the case a? well. Adverting to Chapter XIII of the Code of CRL.REV.P. 179/2009 Criminal Procedure, relating to "jurisdiction of Criminal Courts in Enquiries and Trials", the Court held that the jurisdictional aspect becomes relevant only when the question of enquiry, and trial arises, "in this regard, reference may be made to the following observations: "13., Therefore, when there is rothing in Chapter • XIV of the Code to impair power of a Jijdicial Magistrate of the First Class taking cognizance offence on the strength' of any territorial-reason it is impermissible to deprive such a-Magistrate • power to take cognizance of an offence - of course, in certain .special enactments special provisions are incorporated for^ restricting the. power of taking cognizance of offences failing under such acts. But such provisions are protected by non obstante clauses. Anyway this is a different matter.

¶14The jorisdictsooal aspect becomes, relevant only when the qyestion of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jorisdiction to try the case iias the power to take cognizance of the dffe'iiice/ Iff he is a Magistrate of the First'Class his power to take cognizance.of the offence is not impaired by territorial restrictions. After taking cognizance may have to decide as to the court which has risdiction to enquir^ into or try the offence and sitiuation would reach only during the post-cognizance; stage and 'not earlier." (emphasis added) /• •

¶12In the case of Ra1iv Modi fsupra), the Supreme Court formulated the following question for consideration "10. The issue before us is,-whether High Court under Section Cr.P,C. was justified in-quashing the complaint on the ground no cause of action has arisen in Patna in respect of the alleged offences under the provisions of IPC.

¶11The learned Counsel for. tha appellant would submit, that, the cognizance stage and the trial stage are tvyo different aspects of,criminal jurisprudence under the Code, there is no territorial restriction for any Magistrate to take cognizance of an offence although at the stage, of trial, said issue may become relevant in view of the provisions of Chapter ' XIII of the Code. The Counsel would also assert that ! , \ CRL.REV.p. 179/2009 \ . / •

¶13Section

¶177of tlie Code relating to the jurisdiction of the Criminal Courts do not trammel the powers of any Court to take'cognizance of'the offence and'thus, would-apply to. Sections 190 and'200 as well -12. In order to appreciate the jurisdictional aspect, it •.would be relevant to. discuss meaning -of ..the expression "cause of action". This Court has laid down that the cause of action' is a fundamental element to confer the j.urisdictibn upon any Court and which has- .to be. proved by the plaintiff to support his right to a "judgment of the Court. It is relevant to take note of what was stated by this Court in State of Bombay, v.' Narottamdas Jethabhai, 1951 SCR 51. In this case, it is observed th,at of Courts depended in civil cases on a'-"cause of action" giving rise to a civil liability in criminal cases'on commission of an offence, and on the provisions made in the two Codes of Procedure as to the venue of the trial and other relevant matters." After taking into consideration a catena of decisions on the point of "cause of action", while tracing the decisions starting from the year 1950's right upto 2009, including judgments rendered in the cases of State of Bombav vs. Narottamdas Jethabhai, 1951 SGR 51; 'State of l^ladras vs. V.P. Agencies, AIR 1960 SC 1309,' -Gurdit Singh vs. Munsha Singh,

(1977) 1 see 791; State of Raiasthan vs. Swaika Properties,"

(1985) 3 SCC 217;' V^ONGC vs. UtpaT Kumar Basu, fl994) 4 SGC 711; Bloom Dekor Ltd. vs. Subash IHimatlal Desai, f 19941 6 SCC 322; Raiasthan High Court Advocates^ Assn. vs. Union of India, (2001) 2 SCC 294; Y. Abraham A'lith vs. Inspector of Police, (2004) 8 SCC :100; and Alchemist Ltd. vs. State Bank of Sikkim,

(2007) 11 SCC 335, the Supreme Court crystallized the law as-follows:- - . . "22: It is ' f "cause off and the same .must be .averments' otherwise of the said fact." • XXX XXX . XXX CkL.REV.P. 179/2009 correctness

¶29In vsew of the above prSrscipleS;, the Court basis of the averments made in the complaint;- if it is prima-facie of the opinion that the whole or a part of cause of action has arisen in its Jurisdiction^, it can certainiy take cognizance of the complaint. There is no need to ascertain that' the allegations made are true' in fact." (emphasis added)

¶14Tiie attention of tliis Court has be jn 'drawn to the'two recent decisions of Single Benches of this Court in the cases of Reliqare Finvesli Limited vs. Sambath Kumar A reported as (2010) JCC (NI) 266 .-and Patiala" ' Casting P. Ltd. &. Ors. vs. Bhushan Steel Ltd. reported as 2010 IV, AD -(CRL)(DHC)

¶266• In both cases, Single Benches noticed the. judgment in the case of-Harman Electronics (supra), held that mere sending of notice from Delhi would itself not give rise to a cause of action in Delhi, for taking cognizance under Act and the said act ought to be acconipanied by some other act(s), for vesting territorial in a particular court. .In the case of Reliqare Finvest Limited fsupra), the Single Judge also considered the judgment in the cases of Mosaraf Hossain Khan vsi' Bhaqh'eeratha Enqq. Ltd. reported as (2006) 3 SCC 658 and-Lok Housing and Constructions Limited vs. Raqhuoati Leasino and Finance Limited and-Anr. 'r reported as 100.(2002) DLT 38 to hold that a complaint under Section 138 of the Act could be filed in any of the five local areas where any of the five . different acts constituting the offence under Section 138 of the NI Act were done. The judgment in the case of Delhi High Court Leqal Services Committee vs. Government of N.C.T. of Delhi reported as 163 (2009) DLT 56 was also distinguished by holding that the same had no application to the facts of the said case as the said judgment directed return of complaints in cases, in which Delhi courts did not have territorial jurisdiction to try the complaints. It may be noted that the aforesaid judgment is stated to have been, taken in. CRL.REV.P.179/2009 - 11 of 18 \ appeal to the Supreme Court and status quo was ordered to be maintained until further orders and the matter has been directed to be posted before a three Judges Bench. It is stated that the said matter is still pending disposal. •

¶15As regards the submission of the counsel .for the respondent territorial jurisdiction vests i.n a Court in whose jurisdiction, the major portion of the cause of action arises, i.e., the locality where the bank of the accused which has dishonoured the cheque is situated, the Suprerne Court has clarified in the case of K. Bhaskaran fsupra), that the locality where .the bank of the accused, which has dishonoured the cheque,,is situated cannot be regarded as J • • the sole-criteria to determine the place of offence and that a place, for the purpose of invoking the provisions of Section 138 of the Act, would depend on a variety of facts. Pertinently, the term used Dy the Supreme Court in the j , aforesaid case for completing the offence undsr Section 138 of the Act is "acts" and not "cause of action". The said position emerges clearly from a bare reading of paras 11, 14 and 16 of the aforesaid judgment reproduced hereinabove. Therefore, ' this Court is not inclined to agree with submission of the counsel for the respondent that the major portion ^ cause of action in the presentcase arose only after the cheque issued by the respondent/accused was forwarded . by banker of petitioner/complainant to banker of accused, where, on presentation, cheque was dishonoured, which in the present case, is situated not in Delhi, but in Pune.

¶16It is clear from "the provision itself that an offence under Section 138 would not be completed with the dishonour of the cheque . Rather, it attains completion only with the failure of the drawer to pay the cheque amount within the expiry of the fifteen days after the legal notice is served, upon the drawer of the cheque/s whose chequa/s h.ave been dishonoured. As CRL.REV.P. 179/2009 noted above, the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts, tht^ acts being, drawing 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 to make payment within 15 days of the-receipt oT the notice. It is not essential, that all the acts should be committed at the san^e locality.- It is quite possible all the five acts are perpetrated in five different localities. In such a situation, any one courts exercising in one 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 W • the ''cause of action", which has to be seen anc not "the act", is found to b4 untenable and turned down. The five acts mentioned in the aforesaid judicial dicta were clearly spelt bufand the -Supreme Court further .clarified that each , of those five acts could be. done in five different localities. This would t! " 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 his banker is situated.

¶18The argument of the counsel for the respondent that in the case of Shri Ishar Allov Steels Ltd. fsupraV the Supreme Court had clarified that the words, ''a bank" and-"the bank" in Section 138 of the Act are an indication of CRL.REV.P. 179/2009 the intention of the legislature and that since both "a bank" and "the bank'- !• deal with the banker of the accused, the aspect cf territorial has to , be examined in the said context, must be considered in the light of the issue before the said Court. In the aforesaid cas'e, the issue, which engaged Supreme Court was set out in para'2 of the'judgment, which reads as below: "2.(a) What is meant by, "the bank" as'mentioned in clause

(a) of proviso • to. Section of • ' Negotiable Instruments Act, 1881?

(b) Does such bank mean the bank of the drawer of ' cheque or covers within its ambit any bank inclu'ding collecting bank payee cheque?

(c) To which bank the cheque is to be presented for purposes, of attracting the. penaL provisions of Section 138 of the Act?" • - /'

¶19It is therefore quite apparent that the aforesaid judgment did not; deal with the issue'of territorial at c II. Rather, the focus was on the meaning of term, "the bank", as mentioned in clause (a) of the proviso to ' ' . ' 'i Section 138 of the Act and whether such a bank would take within its fold any y bank, including collecting bank payee cheque, for the r •purposes of examining the validity of the cheque under the Act. It is settled law that a decision is not an-authority for a proposition which did not fall for i its consideration. Hence, the aforesaid judgment cannot be said to have-a bearing on the issue of territorial to entertain a complaint by'a particular court.

¶20In the case of Harman Electronics fsupral, Supreme-Court , particularly noted in paras' of judgment •complaint/petition did not show that the cheques were presented at Delhi and ' rather, the petition was completely silent on tl i-at aspect. Having' regard to the facts and circumstances of the aforesaid case, where it was observed CRL.REV.P. 179/2009 the parties had been carrying on business at Chandigarh, the transactions took place at Chandigarh, cheques were issued presented at Chandigarh, the Supreme Court had observed that it had no option but to 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' the j^complaint in the territorial jurisdiction,of Delhi. As noted in para (3) above, there were certain other acts, which we're done within territorial • of Delhi, for invoking Delhi jurisdiction. i

¶21Apart from the aforesaid judgments, counsel for the respondent relies on the decisions of two Single Benches of this Court in the cases pf ICICI Bank Ltd. fsupral and Achintva Mandal (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 that reliance was placed on the judgment in the case of Harman Electronics • ^ fsupra) to hold that the Magistrate was right in returning the complaint petitions. But the fact position of both the cases are entirely different distinguishable from the instant case. In the case of Achintva Mandai fsupra), the learned Single Judge observed that the only single fact of the statutory notice being dispatched from Delhi iormed the basis of filing the complaint in Delhi and that alone could not vest territorial ori . Courts in Delhi. In the case of ICICI Bank Ltd.fsupra), it was observed .'the respondents were residing outside the territorial of the trial . court and the bank of the respondent was beyond the territorial of the trial court. However, there is no mention in the said judgment as to the CRL.REV.P. 179/2009 15 of 18 location, where the other acts mentioned in the case of K. Bhaskaran fsupra) f .were done. In this view of the matter, neither of the two judgments can be stated to be applicable to the facts of the instant case.

¶22• With 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-a-viz procedural law, it may be' noticed Section 4(2) Cr.P.C postulates that all offences under any other law shall be investigated, inquired into, tried otherwise, dealt, with according to the same provisions, but,, subject to any enactment for the time being in force, regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such . offences. Section 5 of the Cr.PC, which is the saving clause, stipulates 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 or power conferred, or any special ,form of procedure f prescribed, by any other law for the time being in force.

¶23In present case, Negotiable Instruments Act is substantive statute and .the proceduraf aspect of filing, of the complaint, dealing with the proced.ures to be followed by the trial court thereafter are all governed under the • procedural law, i.e., 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 Section 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, Negotiable Instruments Act in 'isolation, dehors the procedure prescribed in the Cr.PC, for dealing with the filing of the CRL.REV.P.179/2009 Page 16 of 18 ? complaint and manner of proceeding with the complaint, is neither possible, nor permissible. I

¶24As discussed above, Magistrate taking cognizance' of an offence must not necessarily have the territorial 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, 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 posty y cognizance stage; At the pre-cognizancestage, the Magistrate has only to examine the averments, as set out.in the.comp aint and not more, for prima facie arriving at a decision as to whether some acts essential foi-completing a.n offence under Section 138 of the Act were done in th6 territorial of that Court. In the present case, having perused , complaint filed by petitioner/complainant without, ascertaining correctness of the allegations made therein^ prima facie \t ha's 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/accuse'd from Delhi, but some other acts done, prior thereto, as set out in para (3) hereinabove.

¶25From th,e aforesaid facts circumstances, there appears no .1 ambiguity on the aspect of the right of_the petitioner/complainant to. file a complaint in a Court having in t:he context five acts, mentioned in the case of K. Bhaskaran fsupraV ^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 if after taking cognizance, CRL.REV.p. 179/2009 . respondent/accused is able to place such material facts on the record which demonstrate that the Courts in Delhi do not have the territorial to entertain the complaint, the learned Metropolitan Magistrate shall still have a. free hand to ascertain truth of allegations made by petitioner/complainant and arrive at a differenfconclusion.

¶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 complaintof the petitioner under'Section 138 of the Act, in accordance with law. The petitioner shall appear before the learned MetropolitanMagistrateon 18.10.2010at 2:00 PM.^

¶27• a'copy of this order shall be forwarded by the Registry forthwith to the trial court for information. • , ' . (HIMA KOHLI) 'SEPTEMBER 23, 2010 ' JUDGE rkb ' CRL.REV.P. 179/2009

\ \ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.REV.P. No.169/2009 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. 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 respondent No.2. Therefore the said respondent is proceeded against ex-parte. For orders, see Crl.Rev.P.No.179/2009. Registry is directed to place a copy of