1 IN THE COURT OF SHRI S.K. SARVARIA ADDITIONAL SESSIONS JUDGE-01/SOUTH PATIALA HOUSE COURT/NEW DELHI [CASE NUMBER] [ENTITY], Near I.I.T. , New Delhi Through its authorized signatory Mr. J. Choudhary, Finance Manager Petitioner Versus 1. Mr. [ENTITY] (Director) Dr. Chimote Head Care & Diagnostic Center C/o Anushka Medical Foundation & Research Institute Ltd., Duffering Hospital Road, Sri Krishna Peth, Amravati-444601 2. Dr. [ENTITY] (Director) Dr. Chimote Head Care & Diagnostic Center C/o Anushka Medical Foundation & Research Institute Ltd., Duffering Hospital Road, Sri Krishna Peth, Amravati-444601 Respondents Date of Institution of the suit : 06/03/2010 Date on which order was reserved : 19/03/2010 Date of order : 23/03/2010 ORDER
This revision petition is filed by the petitioner against the order dated 6/2/2000 passed by learned Metropolitan Magistrate by which the complaint under [SECTION] of the [ACT] filed by the revisionist for the alleged dishonoured cheques issued by the respondents/accused persons was returned to be presented before the competent court having jurisdiction. It was held that the learned trial court has no territorial jurisdiction to entertain and try the present complaint. Aggrieved by the order of the learned trial court the petitioner has preferred the present revision petition.
The argument of learned counsel for revisionist/petitioner is that the learned trial court did not properly appreciate the facts of the matter and law. It failed to appreciate that the petitioner has only one head office which is situated at Delhi and there is no branch office in any part of the India. It is argued that the petitioner operates from Delhi. Only its representatives are going for sale of the imported articles in question to different consumers from one place to another in India including Amravati in Maharashtra. It is argued that though the representatives of the petitioner deposited the cheque in question in the branch of ICICI bank at Pune , Maharashtra but in fact the petitioner has only one bank account with ICICI bank at Delhi and the said bank has granted e- banking facility to the revisionist to present its cheques at any branch of ICICI bank throughout India. Therefore, it cannot be construed that the revisionist is having any bank account in ICICI Bank, Pune, Maharashtra. Therefore, impugned order of learned trial court returning the complaint to the petitioner should be set aside and the learned trial court should be directed to take cognizance of the offences and proceed against the respondents/accused persons in accordance with law. Reliance is placed upon the following authorities:
1. [ENTITY] versus Sankaran Vaidhyan and another (1999) 7 SCC
2. Shri Ishar Alloy Steels Ltd versus Jayaswals Neco Ltd (2001) 3 SCC
3. [ENTITY] and another versus State and another CRI.M.C,
1580/2009 to 1586/2009 and CRI.M.C, 1844/2009 to 1853/2009 under [SECTION] [ACT] decided by Delhi High Court on 21/10/2009.
4.[ENTITY] (Smt.) Versus B. Mohammed (2008) 13 SCC 77 I have heard the learned counsel for the petitioner and have gone through the trial court record, revision file, authorities relied upon by learned counsel for petitioner and the relevant provisions of law.
In [ENTITY] v. Sankaran Vaidhyan Balan, A.I.R.1999 (SC) 3762 : 1999 Cri.L.J. 4606 : 1999(7) S.C.C. 510 relied upon by learned counsel for the revisionist following observations were made by Hon'ble Apex court:
"15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under [SECTION] of the Code. In this context a reference to [SECTION] of the Code is useful. It is extracted below:
"Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas."
16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five coal areas can become the place of trial for the offence under [SECTION] of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is idle exercise to raise jurisdictional question regarding the offence under [SECTION] of the Act."
The above observations in [ENTITY]'s case (supra) were followed and approved by Hon'ble Supreme Court in [ENTITY]'s case (supra) also relied upon by learned counsel for the revisionist. In [ENTITY]'s case (supra) also relied upon by learned counsel for revisionist our Hon'ble High Court after discussing [ENTITY]'s case (supra) and [ENTITY]'s case (supra) and other cases has made the following observations:
" 10. In the present cases, it has been specifically alleged in the reply filed by the respondent that (i) the entire transaction took place at Delhi, (ii) the cheques were issued at Delhi, and (iii) the cheques were present at Delhi. Therefore, applying the provisions of [SECTION] of the [ACT], the court at Delhi has the jurisdiction to entertain and try the complaints filed by the respondent, as part of the cause of action arose in Delhi. The decision of the Hon'ble Supreme Court in the case of Harman Electronics Private Limited (Supra), where jurisdiction of Delhi Court was claimed solely on account of notice of demand having been sent from Delhi, therefore, has no application to the present cases."
In [PRECEDENT], A.I.R.2001 (SC) 1161 : 2001 Cri.L.J. 1250 :
2001(1) Crimes 284 also relied upon on behalf of the revisionist the Hon'ble Supreme Court held:
"8. The use of the words "a bank" and "the bank"
in the Section is indicator of the intention of the Legislature. The former is indirect article and the latter is pre-fixed by direct article. If the Legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in [SECTION] of the Act is pre- fixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under [SECTION] is pre-fixed by the definite article "the". The same Section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank"
meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns, with a specifying or particularising effect opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote particular thing or a person. "The" would, therefore, refer implicitly to a specified bank and to any bank. "The bank"
referred to in clause (a) to the proviso to [SECTION] of the Act would mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.
9. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to the (C) bank. The non-presentation of the cheque to the drawee-bank within the period specified in the Section would absolve the person issuing the cheque of his criminal liability under [SECTION] of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of [SECTION], [SECTION] and [SECTION] of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee."
The liberal position as to jurisdiction of the complaint cases under [SECTION] of the [ACT] as reflected in [ENTITY]'s case (supra) and approved in [ENTITY]'s case (supra) has been curtailed by the Hon'be Supreme Court in Harman Electronics (P) Ltd. v. National Panasonic India Ltd., (SC) 2009(1) R.C.R.(Criminal) 458 : 2009(1) S.C.C. [SECTION]0 : 2009 A.I.R. (SC) 1168 by making the following observations:
"12. Indisputably, the parties had been carrying on business at Chandigarh. The Head Office of the complainant - respondent may be at Delhi but it has a branch office at Chandigarh. It is not in dispute that the transactions were carried on only from Chandigarh. It is furthermore not in dispute that the cheque was issued and presented at Chandigarh. The complaint petition is totally silent as to whether the said cheque was presented at Delhi. As indicated hereinbefore, the learned counsel appearing on behalf of the complainant - respondent contended that in fact the cheque was put in a drop box but as the payment was to be obtained from the Delhi Bank, it was sent to Delhi. In support of the said contention, a purported certificate issued by the Citi Bank NA has been enclosed with the counter affidavit, which reads as under :
"This is to confirm that M/s. National Panasonic India Pvt. Ltd. (NPI) having registered office at AB-11, Community Centre, Safdarjung Enclave, New Delhi - 110029 are maintaining a Current Account No. 2431009 with our Bank at Jeevan Bharti Building, 3, Parliament Street, New Delhi- 110001 only and not at any other place in India including Chandigarh.
Further confirmed that CITI bank has provided the facility for collection of Cheques/Demand Drafts from branches of NPI located at various places/cities in India. However, all amounts of cheques/Demand Drafts so collected on behalf of National Panasonic India Private Limited are forwarded and debited/credited to the aforesaid Current Account No. 2431009 with our Bank at Jeeval Bharti Building, 3, Parliament Street, New Delhi - 110001."
13. The complaint petition does not show that the cheque was presented at Delhi. It is absolutely silent in that regard. The facility for collection of the cheque admittedly was available at Chandigarh and the said facility was availed of. The certificate dated 24.6.2003, which was not produced before the learned court taking cognizance, even if taken into consideration does not show that the cheque was presented at the Delhi Branch of the Citi Bank. We, therefore, have no other option but to presume that the cheque was presented at Chandigarh.
Indisputably, the dishonour of the cheque also took place at Chandigarh. The only question, therefore, which arises for consideration is that as to whether sending of notice from Delhi itself would give rise to a cause of action for taking cognizance under the [ACT].
14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under [SECTION] of the [ACT], the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to [SECTION] of the [ACT] intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount.
Clauses (b) and (c) of the proviso to [SECTION] therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. "
The reason for curtailing the liberal position is also indicated in Harman Electronics's case (supra) which is reflected in the following observations:
"25. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-a-vis the provisions of the [ACT].
26. Learned counsel for the respondent contends that the principle that the debtor must seek the creditor should be applied in a case of this nature.
27. We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the [ACT] and not on common law principle."
Following the law laid down, in Harman Electronic's case (supra), our Hon'ble High Court in a case pertaining to dishonour of the cheque and complaint under [SECTION] of [ACT], wherein it was not disputed that the accused persons were residing outside of the territorial jurisdiction of the trial court at Delhi and the bank of the accused was also beyond the territorial jurisdiction of the trial court in Delhi in said case reported as [PRECEDENT], has made following observations:
"11. Thus, it is abundantly clear that for commission of an offence under [SECTION] of [ACT], notice must be received by the accused. It may be deemed to have been received in certain situations. [SECTION] of the [ACT] determines the jurisdiction of a Court trying the matter. The Court will have the jurisdiction only where the offence has been committed. The provisions of [SECTION] and [SECTION] of the [ACT] are exceptions to [SECTION]. These provisions presuppose that all offences are local. However, there may be a case, where the accused would have shifted his residence outside the territorial jurisdiction of the Court concerned, but then, is such a case, the Court in whose territorial jurisdiction drawee bank, (i.e, banker of the accused) is situated would have the territorial jurisdiction to entertain the complaint in question. Therefore, the place where an offence has been committed plays an important role."
It was further observed as follows:
13. It needs no elaboration that when two decisoins of coordinate Benches of the Apex Court are cited, then the later one prevails. The decision of the Apex Court in the case of Smt. [ENTITY] (supra) relied upon by the petitioner is of 3rd November, 2008;
whereas, the Apex Court decision in the case of M/s. Harman Electronics (supra) is of 12th December, 2008. I find myself unable to agree with the reasoning in decision rendered by a Single Bench of the High Court of Madhya Pradesh in the case of [PRECEDENT] (supra), as the latest decision of the Apex Court in the case of M/s. Harman Electronics (supra) cannot be brushed aside by simply observing that it was rendered in a different context and by relying upon the decision in the case of [ENTITY] (supra)."
It was further observed as follows:
"15. The aforesaid ground reality stands illustrated from [CASE NUMBER], wherein the respondent-accused is from Vellore, which is in Sourth India and the complaint regarding dishonour of cheque has been filed in Delhi Courts. Taking note of such a situation, Apex Court in the case of M/s. Harman Electronics (supra) has declared in unequivocal terms that financial institutions, ought not to be permitted to do forum hunting as per their convenience, much to the grave harassment of the accused and a balance has to be struck. I am in respectful agreement with the above said ratio of the decision in the case of M/s. Harman Electronics (supra).
16. During the course of the arguments, it had transpired that criminal complaints of petitioner pertain to cheque amounts ranging from Rs. 1,500/- to Rs. 4,500/- only in these matters. In such like cases, it would be too harsh upon a respondent/accused to come to Delhi from far of places and to face the proceedings under [SECTION] of [ACT], merely because petitioner chooses to file the complaints under the aforesaid Act in Delhi. "
In [PRECEDENT] decided by our Hon'ble High Court, relying on Harman Electronics's case (supra), the following observations were made:
"The [ACT] does not place any fetter on exercise of extraordinary jurisdiction, which certainly can be invoked in the prsent situation where courts are flooded with complaints which they can neither entertain nor return and the pendency of such complaints is unnecessarily clogging the dockets of the subordinate courts. In fact, Metropolitan Magistrates are not able to dispose of other cases which are within their jurisdiction, as their cause lists are flooded with these [SECTION] [ACT] matters which are beyond their jurisdiction. It is pertinent to mention that work in respect of these [SECTION] [ACT] matters where Delhi courts have no territorial jurisdiction, has come to a virtual standstill and the acused are suffering harassment as they have to travel long distances at heavy costs to defend their cases. Consequently, retention of these [SECTION] [ACT] matter violates fundamental and legal rights of the accused not only in these cases but also in other cases. Undoubtedly, right to speedy justice without harassment is also a facet of [SECTION] of [ACT].
In any event, the High Court under [SECTION] of the [ACT] is required to enforce law of the land and in accordance with the judgment of Supreme Cort in M/s. Harman Electronics's case (supra), all pending complaints in courts having no jurisdiction have to be returned.
Consequently, in exercise of power under [SECTION] of the [ACT] read with [SECTION] of [ACT], we direct return to the complainants for presentation in the Court of competent jurisdiction all those criminal complaints filed under [SECTION] of [ACT] that are pending in the courts of Metropolitan Magistrates in Delhi in which cognizance has been taken by them without actually having territorial jurisdiction."
Therefore, the question of jurisdiction is to be judged by interpreting the facts and circumstances of the case so that the drawer of the cheque/accused in these quasi civil cases is not unduly harassed by the complainant by filing complaint at a distance place/state in which it is not easy for the drawer of the cheque/accused to attend to the cases by leaving his business and by spending large amount of money in commuting from his place to the place where the court, in which the complaint is pending, is situated. In the present case the cheques in question were issued by respondents/accused persons at Amravati in Maharashtra these were drawn on Bank of India Dadar (West) branch, Mumbai. These cheques were presented for encashment by the petitioner/complainant at ICICI bank Ltd,Raviwar Peth Branch, Pune. There is no plea in the complaint filed before learned trial court that the revisionist/complainant has only one bank account that too in Delhi and e-banking facility was provided to the petitioner/complainant so the cheques in question were presented in Pune in one of the branches of the ICICI bank. There is no plea in the complaint filed before learned trial court that the imported article/goods in question were supplied from Delhi to the respondents/accused persons or the order was placed at Delhi by the respondents/accused persons. During the course of arguments it is argued that it is the representatives of the petitioner/complainant who have deposited the cheques in question in Maharashtra, so the logical presumption is that the imported articles/goods are also supplied by the representatives of the petitioner/complainant to the respondents at their place in Amravati, Maharashtra. What clinches the issue is that in the legal notice dated 10/10/2009 issued on behalf of petitioner/complainant to the respondents/accused persons through counsel the petitioner/complainant after detailing that the cheques in questions have been dishonoured has demanded from the respondents/accused persons that in lieu of and against dishonoured cheques the respondents/accused persons should make the payment of the amount in question drawn on ICICI Bank Ltd Ameravati (and not Delhi) to the revisionist/complainant within 15 days of the receipt of the Notice. Therefore, it cannot be said that there is any illegality or material irregularity in the observations made by learned Metropolitan Magistrate in the impugned order dated 6/2/2000 in which the learned court blow has rightly applied Harman Electronics's case (supra) which is also followed in [ENTITY]'s case (supra) and Delhi High Court Legal Services Committe's case (supra).
In [ENTITY]'s case (supra) the entire transaction took place at Delhi, the cheques were issued at Delhi, the cheques were presented at Delhi but in the case in hand both the cheques were issued and presented in Maharashtra and in lieu of the dishonoured cheques the payment was again demanded at Amravati in Maharashtra, as stated above. There is no averrment in the complaint that all transactions took place at Delhi. Therefore, [ENTITY]'s case (supra) does not help the petitioner. Shri Ishar Alloy Steels Ltd's case (supra) deals with the question presentation of the cheque and is not a direct authority on the question of jurisdiction in the cases like present case. Therefore, it also does not of help to the revisionist on the question of jurisdiction.
In view of the above discussion there is no illegality or material irregularity or impropriety in the impugned order which may warrant interference in revision. The revision petition is, therefore, dismissed. The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room.
Announced in the open court on 23th March, 2010 ([ENTITY]) Additional Sessions Judge-01/South, Patiala House Courts/New Delhi