M/S Somani Worsted Limited v. Aez Infratech Pvt. Ltd. & Ors

JUDGMENT ANU MALHOTRA. J.

¶1The three petitions: i,e. Crh;;. M.C;, 1684/2016, Crl. M.C. No. 1685/2016 and Crl. M.G ^.4 6^8/2016/^ ^ filed by the same petitioner M/s Somani Worsted Pvt./Ltid. assail the common order dated 22.03.2016 of the learned-ASLOSi;Pa House Courts, New Delhi in Crl. Rev. No.ll7/201^i:,Qrl.^R^ and Crl. Rev. No.119/2015, vide which th|;pr||m^ and 15.10.2015 of the learned MM-05, NeWDeMi Mstfictl'P^^ House Courts, New Delhi in Complaint Case Nosi3ii3li7M®4^;^9/l/2014 and 350/1/2014 were set aside with directions to the learned trial Court to pass a fresh order in view of the Neg6ti|BleHnstrunte^^ Ordinance, 2015 and the 'Act' passed subsequently.

¶2Submissions have been made on behalf of either side.

¶3A bare perusal of the complaints that were filed by the petitioner herein indicates that they were all instituted under Sections 138 and 141 of the Negotiable Instruments Act, 1881 in the year 2012 and are against AEZ Infratech Pvt. Ltd., the respondent no.l, its Managing Director, Shri Sanjeev Jai Narain Aeren, its Director, Crl. M.C.NOS.]684/2016,168.S/2016,1698/2016 . Shri Vijay Kumar Gupta and its Authorized Signatory Shri Kailash Gupta arrayed as respondent nos.2 to 4 respectively for dishonour of cheques issued on behalf of the respondent no. l allegedly by the respondent nos.2 to 4 all in favour of the complainant arrayed as the petitioner herein vide cheque bearing no.556029 dated 10.01.2012 for a sum of Rs. 1,24,99,995/-, for dishonour of cheque bearing No.556035 dated 10.01.2012 for a sum of Rs. 13,60,00,000/- and dishonour of cheque bearing No.556028 dated 10.10.2011 for a sum of Rs.2,25,00,000/- as mentioned in the respective complaints.

¶4As per averments madq in,,,each«jpf the complaints, the said cheques were presented forf encashrhenf, af New Delhi and were returned unpaid at New Delhh ahd the mtim ation of the return of the said cheques as unpaid was rbcdiyed by,thq complainant at New Delhi. As per averments in the complaints, vwhich are identical, it was stated that the office of the accused no/l heR^c^e respondent no.l herein ' ' ^ 'f" was situated at Delhi and^at the leg|l|rfeMe was issued from New Delhi and it was submitted that' action for institution of the complaints arose and lay within the jurisdiction of the trial Court at New Delhi.

¶5Vide order dated 21.08.20f5, the learned trial Court observed to the effect that the facts of the complaint revealed that the complainant had deposited the cheques for encashment in his account maintained with the ICICI Bank, Base Branch, 612, Ground Floor, 0pp. Rani Mill, Delhi Road, Meerut-250002, U.P. and that as per the complaint, the payee bank is situated within the jurisdiction of Meerut, U.P., which falls within the jurisdiction of District Court, Meerut, U.P. and Crl.M.C.Nos.1684/2016,1685/2016,1698/2016 thus in tenns of the Negotiable Instruments (Amendment) Ordinance, 2015, which came into force on 15.06.2015 with reference to the Clause 3(2) and Clause 4 thereof which are as under: "Clause 3(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be,, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course otherwise-through an account, the branch of the drawee bank wjiere-the drawer maintains the account, is situated. ; , , > ;■ Claused ■ 142A. (1) Notwithstanding any thingffoM in the Code of Criminal Procedure, 1973 ob any judgment, decree, order or directions of any court,fall cqses^^^d^^ out of section 138 which were pending in cinyffbuft, whether filed before it, or transferred to it, bffore'jhefcommencement of the Negotiable InstrumentffAmjmdmdn^ 2015 shall be transferred to theffdwffJuffhffjiqffd^^ under sub section (2) of section piT^'cfftifffli^^ had been in force at all material timks:-'=^--''~-'---^-

(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where t]}e:pqyee or the holder in due course, as theicaseffMiy lej'y hatfiled a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1), and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. Crl.M.C.Nos.1684/2016,1685/2016,1698/2016

(S) If, on the date of the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub section (2) of section 142 before which the first case was filed and is pending, as if that sub-section had been in force at all material times. ", the learned trial Court observed to the effect that in view of the said referred provisions, the complaint was^fequired to be transferred to the Court having jurisdiction under ;Siibrsection (2) of Section 142 of the Negotiable Instruments Act, llBs i . and the matter was directed to be placed before the learned CMM-for the needful and appropriate directions on 07.10.2015. ; 5

¶6As per averments madqiriitl^

07.10.2015, when the matter was listed before transfer, the counsel for the respondent no.l appeared; and put forth that he was appearing for the complainant and stated that^ he was not present when the order dated 12.08.2015 was passed and that the Branch of the complainant Bank was situated in DelhiiSSImel^ thus permitted the facts to be placed before the learned MM on 15.10.2015.

¶7The said order dated 15.10.2015 of the learned trial Court brings forth categorically that the learned trial Court has observed that it passed the order for transfer of the case in terms of the then latest Ordinance i.e. Negotiable Instruments (Amendment) Ordinance, 2015 and the learned trial Court has further observed to the effect that it had PgCTP 5 of 14" Crl. M.C.Nos.1684/2016,1685/2016,1698/2016 considered the submission of both sides and that it had become functuous officio with the order dated 21.08.2015 having attained finality and could not review its own order.

¶8The Revisional Court observed vide para 9 of the impugned order to the effect "9. Having heard the arguments of both the parties and taking into consideration the fact that since amendment vide Section 142 A (1), Amendment Act of the Negotiable Instruments (Amendment) Second Ordinance, 7 of 2015, the jurisdiction has been restored to the place where the cheque was presented by the complainant. I have gone through the Negotiable Instruments (Amendtnent) Ordinance, 2015, the relevant sections 3 and:74'}pf^.iHf Ordinance, 2015 are reproduced verbatim which drejdfpider:- "3. In the principal Acj sectidhl'd2 shall be numbered as sub section (1) thereof qndfafier sub-section (1) as so numbered, the follqwing jsubjection shall be inserted, namely;— j J ;y' j "(2) The offencejunder fectipn 138 shall be Inquired Into and triedjohlyfByj(f pdMrt within whose local Jurisdiction,— jyfjAyj

(a) if the chequef^;dNiye^ collection through an account, the bldnch of the bank where the payee or holder in due course, as the case may be, maintains jhe: qpcount, is situated; or

(b) If the che(pAf0:f)re^nled'for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder In due course, then, the cheque shall be deemed to have been delivered to the branch of the bank In which the payee or holder In due course, as the case may be, maintains the account.". Crl.M.C.Nos. 1684/2016,1685/2016,1698/2016 Page6ofl4 v\

¶4In the principal Act, after section 142, the following section shall be inserted, namely;— "142A. (1) Notwithstanding anything contained In the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before It, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Ordinance, 2015 shall be transferred to the court having jurisdiction under sub section (2) of section 142 as If that sub-section had been in force at all material times." In judgment "M/s Escorts Ltd. v. Rama Mukherjee - 2013

(3) DCR 1 Supreme Court of India", it has been observed that:- "5. It Is apparent, that. tHe cphcliisipp drawn, by the High Court, In the Impugned order/datdd 27.4.2012, is not in consonance with the decision)rin^ by this Court In Nishant Aggai-wal's 'case (supra). Therein it has been concluded, that the Court within the Jurisdiction whereof, the dishonoured cheque: was i presented for encashment, would have the JurisdictiPn to jentertain the complaint filed under Section 138 of the Negpiiable Instruments Act.

7.In view of the abpfei. jid^g^^ consideration the factual position noticed by/lie paragraph 13 of the impugned judgment, we are of the view, that the High Court erred in concluding that the courts at Delhi, did not have the jurisdiction ldtrythe.petitipn^ by the appellant under Section 138 of the Negotiable Instruments Act. The impugned order dated 27.4.2012 passed by the High Court is accordingly liable to be set aside. The same is, therefore, hereby set aside." and thus observed to the effect that as per returning memo dated

03.04.2012, the complaint had its account at the Jhandewalan Branch, Crl. M.C. Nos. 1684/2016,1685/2016,1698/2016 New Delhi wherein the cheques were presented and thus the impugned orders dated 21.08.2015 &

15.10.2015 were set aside.

¶9The contention raised on behalf of the petitioner herein is to the effect that when the complaint was instituted in June, 2012, the territorial jurisdiction lay with the Court at Delhi in terms of the verdict of the Hon'ble Supreme Court in K. Bhaskaran vs. Sankaran Vaidhyan Balan and Anr. AIR 1999 SC 3762 wherein it was observed to the effect:- "14. The offence under Section 138 of the Act can he completed only with the concqteriation of a number of acts. Following are the acts which dj^Cr CO of the said offence: (1) Drawing of G) Presentation of the cheque to the: hank, f31^^ the cheque unpaid hy the drawee bank', (ff Gifing notice in writing to the drawer of the dhe^f (demanding payment of the cheque amount, (5)f2ilmpjil^ ijdfwer to make payment within 15 days of the reeeiptpfi^ riotice.

¶16Thus it is clear, done in five different localitfes:.qnf^ ofie oj the, courts exercising jurisdiction in one of al areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having juGsdietipn qyep'dfif.one of the local areas within the terriidridtlimits bf 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 the offence under Section 138 of the Act."

¶10Reference was also made by the petitioner to the verdict of the Hon'ble Supreme Court in Harman Electronics Pvt. Ltd. vs. National Panasonic India Pvt. Ltd. (2009) 1 SCC 720, which clarified the same Crl. M.C. Nos. 1684/2016,1685/2016,1698/2016 and the verdict of the Hon'ble Supreme Court in Dashrath Rupsmgh Rathod Vs. State of Maharashtra and Am. (Criminal Appeal No.2287/2009) which varied the same wherein it had been laid down that the Court where the account of the accused i.e. of the drawer was maintained, would be the Court having territorial jurisdiction in the matter,

¶11The Negotiable Instruments (Amendment) Ordinance, 2015 of June, 2015 however, conferred the exclusive jurisdiction at the place where the complainant maintains its account and explanation to Section 142 (2) thereof made it, expres% clear that where a cheque was delivered for collection to any branch oi' die bank of the payee or holder in due course, the cljetaue 3vi|ul4;'be deemed to have been delivered to the branch of ti|il|a^:i|(fiich the payee or holder in due course, as the case may i^r (ndii|ain|fthe account and thus, it has been submitted on behalf of |^^tit||gthat the learned trial Court in its enquiry to determin|tfeH|ai| iyi^4he account was actually maintained, took into account thb statement of the account duly evidencing the eventual debit and credit entries with regard to the cheques in question andjThe^lIsp^ complainant was situated at the Base Branch at Meerut, U.P., thus directed the transfer of the complaints to the Meerut, UP where the complainant maintains its account.

¶12The petitioner i.e. the complainant of the three complaint cases has placed on record the copy of the certificate issued by the ICICI Bank Limited, Meerut, U.P. dated 27.10.2015, which certifies that the petitioner herein maintained a current account bearmg Crl. M.C. Nos.1684/2016,1685/2016,1698/2016 No.036805002623 with the ICICI Bank branch situated at Plot No.612, Opp. Rani Mill, Near Baghpat Gate, Delhi Road, Meerut, U.P. and further certifies that the petitioner had deposited cheque bearing no. 556029 for a sum of Rs. 1,24,99,995/-, cheque bearing No.556035 for a sum of Rs. 13,60,00,000/- and cheque bearing No.556028 for a sum of Rs.2,25,00,000/-, all drawn on Citi Bank, Delhi for collection but the same were returned unpaid by the paying banker on 03.04.2012 mentioning the reason 'account closed'. The copy of the summary of accounts of the petitioner in relation to the account bearing no. 036805Q02623, wds also placed on record by the petitioner, which shows the aepbunt of the; petitioner to be maintained at the Base Branch, 612, Grouhd-FloorpG^ Rani Mill, Delhi Road, Meerut-250002, U.P. and shows , the: reject of the three cheques bearing nos. 556029, 556035 /and 556028 with the account of the drawer being shown to have:b,eenJlosed.

¶13It is apparent thus that the/^djnplainant'^ base branch of its bank is situated at 612, Ground Delhi Road, Meerut-250002, U.P.

¶14In terms of Section rT42:/(p^a) .o|bthe/Uegotiable Instruments Act, 1881 which provides as follows: "If the cheque is delivered for collection through an account, the branch of the bank where the payee or bolder in due course, as the case may be, maintains the account, is situated:", the branch of the Bank where the payee or holder in due course maintains the account, is the place where the offence under Section Crl. M.C. Nos.1684/2016,1685/2016,1698/2016 138 of the Negotiable Instruments Act, 1881 can be enquired into and tried exclusively by the user of the word 'only' .

¶15Section 142 A of the Negotiable Instruments Act, 1881 inserted on 15.06.2015 reads to the effect: "Validation for transfer of pending cases-142A; (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under subsection (2) of section 142, as amended by the. Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act^ OiS if that sub-section had been in force at all material timeslrf);

(2) Notwithstanding anything podtained in subsection (2) of section 142 or sub-spcilGn (l)jw$ere the payee or the holder in due course,' as the cade may be, has filed a complaint against the ^fjrcrwef jdf a cheque in the court having jurisdiction under)subs§pti6n (2) of section 142 or the case has been trqnsjjdredjlo fhat court under sub section (1) and such dOmpfairUi in that court, all subsequent complairih^itjmsjnd^ub 138 against the same drawer sddllrI3pjfil0id-/B the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction ofthat cqurj. , .: . -

(3) If, on the date of the-cothmedddmeni of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Crl.M.C.Nos.1684/2016,1685/2016,1698/2016 Ordinance, 2015, before which the first case was filed and is pending, as if that sub-section had been in force at all material times. "

¶16It is thus apparent in view of the verdict of the Hon'ble Supreme Court in Bridgstone India Pvt. Ltd. Vs. Inderpal Singh

(2016) 2 see 75 as observed in para 10 thereof, which observes to the effect

¶10In order to overcome the legal position declared by this eourt in Dashrath Rupsingh Rathod's case, learned Counsel for the Appellant has drawn our attention to the Negotiable Instruments (Arneridment) Second Ordinance, 2015 (herem(^er referredtffifMe Ordinance'). A perusal ofSection 1(2) thereofreyealsfthdp wouldfie deemed to have come intd yfprice with effect from

15.06.2015. It is therefore pdinted. out to us, that the Negotiable Instruments (Amendment) Second Ordinance, 2015 is in force. Our attention fids then invited to Section 3 thereof, whereby, the orifinal Sfifiion 142 of the Negotiable Instruments Act, 18fffcqmei^g; i^ and also. Section 4 thereof, wfkr0^fSktM<m was inserted into the Negotiable Instmmei^ Ufi: Si00s 3 and 4 of the Negotiable Instruments''^fifiiH0ent Second Ordinance, 2015. A perusal of the amended Section 142(2), extracted above, leaves no room for any doubt, specially in view of the explanation thereunder, that with reference to an offence Under Section 138 of the Negotiable Instruments Act, 1881, the place where a cheque is delivered for collection i.e. the branch of the bank of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction." (emphasis supplied) Crl. M.C. Nos. 1684/2016,1685/2016,1698/2016 and that thus the territorial jurisdiction is to be determined by the place where the drawee maintains an account, which is the place where the territorial jurisdiction arises in terms of Section 142(2) of the Negotiable Instruments Act, 1881 and that the provisions of the Code or Criminal Procedure, 1973 have to give way to the provisions of the Negotiable Instruments Act, 1881 on account of the non obstante clause sub-section (1) of Section 142 A as laid down vide para 11 of the said verdict of the Hon'ble Supreme Court. As per observations in para 13 of the said verdict, the provisions of the Negotiable Instruments (Ai'nehdrftent) ^ 2015 (Ordinance 06/2015). As per Section 142:A(l)df: the Negotiable Instruments Act, 1881, all cases transferred to thci Copid^dd^ under Sub-Section (2) of Section 142, as amended by. the Negotiable Instruments (Amendment) Ordinance, 20r5| \ shall' be deemed to have been transferred under the said Ordinance, sub-section had been in force at all material in tim^s ahd|fi^ it:^s,^j^ vide para 13 by the Hon'ble Supreme Couit that the Section 142A (1) of the Negotiable Instruments Act, 1881 gives retrospectivity to Secti()h'jl4;2p^;M.thei|^g^ Instruments Act, 1881.

¶17The verdict of this Comi m Liiigong India Pvt. Ltd. Vs. State (Govt. of NCT of Delhi) & Ors. 2018 VIII AD (Delhi) 285 and Pankaj Gupta Vs. Govt. of NCT of Delhi, a verdict dated 13.10.2015 in Crl.M.C.439/2015 which bring forth the retrospective applicability of Section 142 (2) of the Negotiable Instruments Act, 1881 in terms of Crl. M.C. Nos.1684/2016,1685/2016,1698/2016 Section 142A(1) makes it apparent that in the circumstances of the instant case, the territorial jurisdiction to try the complaint cases under Section 138 of the Negotiable Instruments Act, 1881 in relation to the three cheques issued on behalf of the respondent no.l, the details of which have already been adverted to hereinabove, lies with the concerned Court at Meerut, U.P.

¶18The three petitions are allowed accordingly and the impugned order dated 22.03.2016 of the learned ASJ-()3, Patiala House Courts, New Delhi is set aside as it is apparently not in consonance with the law and the orders dated 21.08.2015; learned MM-05, New Delhi Districtl;:Patiala'House Courts, New Delhi in Complaint Case Nos.343/l/io;l4, ^ 34®^ and 350/1/2014 are restored. III ' The learned CMM, Patiala, Hbiise; Courts, New Delhi is directed to transfer the records of the-coin^plaint cases to the concerned CMM at Meerut, U.P. within a period of three weqks of the receipt of this "jq*" * -v. • V... .. ...v'l v.t.-./ order. ANU MALHOTRA, J. MAY 20^^ 2019/vm Crl. M.C. Nos.1684/2016,1685/2016,1698/2016

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. No. 1684/2016 Judgment reserved on ; 20.12.2017 Date of decision ; 20.05.2019 M/S SOMANI WORSTED PRIVATE LIMITED ....Petitioner Through: Mr. Vivek Kohli, Mr. Nikita Batra, Ms. Neha Rajpal, Ms. Pankhuri, Advs. versus AEZ INFRATECH PVT. LTD. & ORS. Respondents Thrdugh: / :Mr. 'Praveen Kumar, Adv.'for ■+ Crl. M.C. No.l685/201^L->' ' M/S SOMANI WORSTED PIRATE LIMITED ....Petitioner .d'- u'-' i ThjfbughV-j, v'Mr Vivek Kohli, Mr. Nikita ' T r SiJ Batra, Ms. Neha Rajpal, Ms. .V Pahkh^i, Advs. versusv);''"-'' ; ' ' ' AEZ INFRATECH PVT. LTD. & ORS, , Respondents Thrdhghl' " Mr. ' Pfaveen Kumar, Adv. for R-1 to R-4. + Crl.M.C.No.1698/2016 M/S SOMANI WORSTED PRIVATE LIMITED ....Petitioner Through; Mr. Vivek Kohli, Mr. Nikita Batra, Ms. Neha Rajpal, Ms. Pankhuri, Advs. versus Crl. M.C.Nos.l684/2016,1685/2016,1698/2016 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. AEZINFRATECH PVT. LTD. & ORS. Respondents Through: Mr. Praveen Kumar, Adv. for R-1 toR-4. CORAM: HON'BLE MS. JUSTICE ANU MALHOTRA