IN THE COURT OF SHRI [ENTITY], METROPOLITAN MAGISTRATE:DWARKA COURTS:NEW DELHI CC NO: 1611/12 [ENTITY] Complainant Versus [ENTITY] Accused Order dated 20.03.2013 1. Vide this order I shall decide the application moved on behalf of the accused for dismissal/transfer of the present complaint to the Tis Hazari Courts. 2. Brief facts leading to the filing of present application are as follows: The complaint under [SECTION] of the [ACT] has been filed by the complainant allegedly on account of dishonour of cheques bearing nos. 527936 dated 06.08.2011 for a sum of Rs. 13,00,000/- and no. 527937 dated 18.09.2011 for a sum of Rs. 4,94,000/- drawn in favour of complainant on HDFC Bank, Vikaspuri Branch, New Delhi, which on presentation were allegedly dishonoured on account of "funds insufficient" and allegedly despite service of the legal notice the accused had failed to make the payment of both the cheques within the stipulated period. On receipt of the complaint, cognizance of the offence was taken by Ld. Predecessor of the court and accused was summoned vide order dated 17.11.2011. In response to the summons, the accused has entered his appearance on 25.06.2012 and was admitted to bail and matter was fixed for consideration on notice u/[SECTION] [ACT] It is at this stage that the accused moved the present application for dismissal/transfer of the complaint on the ground that this court has no territorial jurisdiction to entertain the present complaint. A reply was filed by Ld. Counsel for the complainant who submits that this court has the [CASE NUMBER] [ENTITY] v. [ENTITY] Order dated 20.03.2013 1 of 6 necessary jurisdiction to entertain the present complaint and moreover, once the court has applied its mind on the issue at the time of summoning of the accused, there is no provision in the [ACT] either to dismiss or transfer the complaint at the stage of framing of the notice under [SECTION] of the [ACT] thereafter oral arguments were heard on behalf of both the parties. 3. It has been contended by Ld. Counsel for the accused/applicant that as per the settled legal position, only the courts at following places do have the jurisdiction to entertain the complaints under [SECTION] of the [ACT] viz.a) the court at a place where the accused is having his residence and b) the court at the place where the banker of the accused is situated. According to him, admittedly in the resent case, the residence of the accused as well as the drawee bank both are situated outside the jurisdiction of this court and as such the complaint is liable to be dismissed/transferred for want of territorial jurisdiction of this court. It is further submitted by him that the complainant has deliberately tried to invoke the jurisdiction of this court by sending the legal notice from within the jurisdiction of this court merely in order to harass the accused. Ld. Counsel for the complainant has relied upon the judgment in [PRECEDENT] in support of his submission that the court at the place from where only the legal notice has been dispatched does not have the jurisdiction to entertain the complaint under [SECTION] of the [ACT]. 4. On the other hand Ld. Counsel for the complainant has relied upon the judgment of Hon'ble Supreme Court in [ENTITY] vs. Sankaran Vaidhyan Balan and another AIR 1999 SC 3782 in support of his submission that even the court at the place from where legal notice has been sent has the jurisdiction to try the complaint under [SECTION] of the [ACT]. 5. I have heard the submissions made on behalf of both the parties and have [CASE NUMBER] [ENTITY] v. [ENTITY] Order dated 20.03.2013 2 of 6 also perused the record. There is no dispute about the facts that the residence of accused is situated outside the jurisdiction of this court. Besides the cheques were also drawn on, presented and dishonoured by the bank situated outside the jurisdiction of this court. Admittedly even the collecting bank where the cheques were deposited by the complainant for collection is situated outside the jurisdiction of this court and the complainant has sought to make out the jurisdiction of this court merely on the basis of issuance of legal notice from within the jurisdiction of this court. The legal issue as to whether in view of judgments of Hon'ble Supreme Court in [ENTITY]'s case (Supra) and Harman Electronics case (Supra), the court at the place from where the legal notice was dispatched has the jurisdiction to entertain the complaint under [SECTION] of [ACT] or not has come up for consideration before Hon'ble Delhi High Court in [PRECEDENT] and it has been observed by Hon'ble Delhi High Court as follows: "40. Now, I will deal with third question. III) Whether the Court at Delhi has a jurisdiction to try the cases under [SECTION] on account of issuance of statutory notice under [SECTION] of [ACT] to the Respondent/Accused
from New Delhi by the Petitioner/ Complainant in view of the Judgment of Supreme Court in the case of [ENTITY] (supra) in spite of the Judgment of the Supreme Court in the case of M/s.Harman Electronics (supra)?
41. The Supreme Court in the case of [ENTITY] (supra) has held that the Court would have jurisdiction to try the case under [SECTION] [ACT] over a place from where legal notice is issued to the customer demanding a [ENTITY] v. [ENTITY] Order dated 20.03.2013 3 of 6 payment of the dishonoured cheque under [SECTION] of [ACT] apart from places where other components of the offence has taken place namely
(i) drawing of cheque;
(ii) presentation of the cheque to the bank, (iii) returning of the cheque unpaid by the Drawee bank;
(iv) failure of the drawer to make payment within 15 days of the receipt of the notice.
42. The judgement of [ENTITY]) has been reiterated by the division bench of the Honble Supreme Court in the case of Smt. [ENTITY] (supra). Crl.Rev
43. However, the division bench of the Supreme Court in M/s.Harman Electronics (supra) gave a contrary judgement to that of [ENTITY] (supra) and [ENTITY] (supra) and held that the Court would not have jurisdiction over the place from where legal notice is issued to the customer demanding payment of the dishonoured cheque under [SECTION] of [ACT].
44. However, even on the issue of place of issuance of legal notice, the decision of the Supreme Court in [ENTITY] (supra) is still the law of the land since it has not been over-ruled by a larger bench of Supreme Court in view of the doctrine of binding precedent and the judgment of the constitution bench of the Supreme Court in Central Board of Dawoodi Bohra (supra), which has held that law laid down by the Supreme Court in a decision delivered by a bench of larger strength is binding on any subsequent bench of lesser or co-equal strength. The same has been [ENTITY] v. [ENTITY] Order dated 20.03.2013 4 of 6 reiterated by the Constitution Bench of the apex Court in [PRECEDENT]." Emphasis Mine.
6. Then after referring to various judgments of Hon'ble Supreme Court and of the High Courts it was observed by Hon'ble Delhi High Court in the aforesaid judgment that where there was conflict of judgments in between two Supreme Court judgments delivered by a bench of the same strength, the Supreme Court followed the earlier judgment in preference to the later judgment. Thereafter, the Court reformulated the issue in the following words:
"51. The real issue which this Court is confronted with is, whether, to follow the earlier decision of the Apex Court as decided in the case of [ENTITY] (supra) or the later decision of Supreme Court as decided in the case of M/s.Harman Electronics (supra)?"
7. Thereafter the court answered the aforesaid question in the following words:
"52. In my opinion, the earlier decision of the Apex Court in [ENTITY]) is to be followed since it is the law of the land as it has not been overruled till date by the larger bench of the Supreme Court in view of doctrine of binding precedent and decision of the Constitution Bench of the Supreme Court in the case of [PRECEDENT] (supra) (para 12) and the decisions of the Supreme Court in the case of [PRECEDENT]. (supra); [ENTITY] (supra) (paras 14 & 18); in the case of Union of India & Ors. (supra) (Para 12); Commissioner of Sales Tax, J&K & Ors. (supra) (Paras 10, 13, 17) and the Division Bench of this [ENTITY] v. [ENTITY] Order dated 20.03.2013 5 of 6 Court in the case of [ENTITY] (supra) (Paras 29-34)."
8. It was further held:
"54. Accordingly, the judgement of Supreme Court in [ENTITY]) ought to be followed regardless of the contrary pronouncements made by the various benches of the High Court in the cases namely (a) M/s [PRECEDENT] judgement dated 01.10.2010 passed in [CASE NUMBER], (b) [PRECEDENT], (c) [PRECEDENT], (d) [PRECEDENT] 27. It may be pointed out that none of these judgements take into consideration the aforesaid Order dated 03.11.2009 passed by the Apex Court."
9. In view of the aforesaid authoritative pronouncement, I do not have any option but to hold that this Court does have the territorial jurisdiction to entertain the present complaint in as much as the legal notice has been dispatched by the complainant from the post office situation within the territorial jurisdiction of this court and accordingly, the application moved on behalf of the accused for dismissal/transfer of present complaint is hereby dismissed.
10. Ordered accordingly.
Pronounced in the Open Court on this 20th day of March, 2013 ([ENTITY]) Metropolitan Magistrate:Dwarka Courts:
New Delhi [ENTITY] v. [ENTITY] Order dated 20.03.2013 6 of 6