1 (Crim WP 523 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION 523 OF 2010 1. Subhiksha Trading Services Ltd. A Company incorporated under the Indian Companies Act,1956 having it's registered office at Habib Complex, 2 nd Floor No.5 Durgabai Deshmukh Road, R.A. Puram, Chennai – 600 028 2. Shri R.Subramanian, Managing Director of Subhiksha Trading Services Limited Office at Habib Complex, 2 nd Floor, No.5 Durgabai Deshmukh Road, R.A. Puram, Chennai – 600 028 3. Shri N. Srinivasan, Authorized Signatory of Subhiksha Trading Service Limited, i.e.Accused No , having his address at, Habib Complex, 2 nd Floor, No.5 Durgabai Deshmukh Road, R.A. Puram, Chennai- 600 028 4. Shri K. Balasubramanian General Manager- Finance and Authorized Signatory of Subhiksha Trading Services Ltd. i.e. Accused No.1 having his address at Habib Complex, 2 nd Floor, No.5 Durgabai 2 (Crim WP 523 of 2010) Deshmukh Road, R.A. Puram Chennai- 600 028 ...Petitioners Versus 1. Kotak Mahindra Bank Limited, A Banking Company within the meaning of The Banking Regulation Act, 1949 and registered under the Companies Act, 1956, carrying on the Business of banking and having its Registered Office at 36-38A, Nariman Bhavan, 227 Nariman Point, Mumbai-400 021 through its Associate Vice President and Authorized Representative Mr. Tushar Bhalchandra Patel, aged about 38 years, Hindu, Indian Inhabitant, Resident of Mumbai 2. The State of Maharashtra ...Respondents (Orig.Complainant) ----- Mr.Shirish Gupte, Senior Counsel a/w. Mr. Mubin Solkar & Miss Nikita Ajwani a/w. Ms. Cynthia Pereira i/b. Rajani Associates for the Petitioners Mr.S.A Shaikh -App for the State Mr. Amit Desai, Senior Counsel i/b. Mr. Jatin Shah for Respondent No.1 ----- CORAM: V.M. KANADE J. DATE ON WHICH THE ORDER IS RESERVED: 12TH AUGUST, 2010 DATE ON WHICH THE ORDER IS PRONOUNCED: 3 (Crim WP 523 of 2010) JUDGMENT: 1. By this petition, which is filed under section 227 of the Constitution of India and under section 482 of the Criminal Procedure Code, the Petitioners are challenging the order of issuance of process passed by the Learned Metropolitan Magistrate, 23 rd Court at Esplanade, Mumbai. 2. Brief fact are as under:- The Petitioner No.1 is a company incorporated under the provisions of the Companies Act, 1956, having its registered office at Chennai. The Petitioner No.2 is the Managing Director and the Petitioner No.3 is the authorized signatory of the Petitioner No.1 and the Petitioner No.4 is the General Manager – Finance and also the authorized signatory of Petitioner No.1. The Petitioner No.1 is a banking company within the meaning of the Banking Company and Regulation Act, 1949, having its registered office at Mumbai. 3. A complaint was filed by the Respondent No.1 against the Petitioners for the offence punishable under section 138 r/w. 141 of the Negotiable 4 (Crim WP 523 of 2010) Instruments Act, wherein it was alleged that the accused No.1 had approached the Complainant Company for sanctioning the working capital and cash credit facility. It is alleged that the discussions were held in the registered office of the Complainant at Mumbai and the facilities were approved and sanctioned by the Complainant from its office at Mumbai. The Petitioners herein had undertaken to abide the terms and conditions of the facilities and repay the dues within the stipulated period. The application, therefore, filed by the Petitioners were sanctioned by the Complainant Company on 13 th December, 2006. A resolution to that effect was passed by the Board of Directors of the Petitioner No.1. Thereafter, the accused had failed to repay the outstanding amount to the Complainant, though they had agreed to repay the amount by 31 st September, 2008 and further extended to 31 st January,2009 . Thereafter, negotiations were held with the Complainant and the accused No.1 vide its letter dated 30.9.2008 forwarded to the Complainant Company “At Par” cheque dated 31.12.2008 for a sum of Rs.35,00,00,000/-. This cheque was deposited initially by the Complainant Company in its bank account maintained with HDFC Bank, Fort Branch, Mumbai. However, the cheque was returned “dishonoured” with a bank memo dated 21.1.2009 with a endorsement 5 (Crim WP 523 of 2010) “funds insufficient”. A notice was sent to the Accused and, thereafter, a private complaint was filed. The learned Magistrate after recording the verification, issued the process. 4. Shri Gupte, the Learned Senior Counsel appearing on behalf of the Petitioners submitted that the Learned Magistrate had not conducted the statutory enquiry, contemplated under section 202 of the Criminal Procedure Code. The learned Magistrate has proceeded to issue process against Petitioners without holding a statutory enquiry as envisaged in section 202 of the Cr.P.C. Secondly, it was submitted that there was no legally enforceable debt or liability on the date of issuance of the cheque. Thirdly, it was submitted that the Court in Mumbai would not have jurisdiction to try and entertain the complaint. 5. So far as the question of enquiry under section 202 of the Cr.P.C. is concerned, it was submitted that the said issue had been referred to the larger bench by an order dated 9 th July, 2010 and further order dated 29 th July, 2010 and, therefore, till the issue was finally resolved by the Division Bench or Larger Bench of this Court, the proceedings should be stayed. 6 (Crim WP 523 of 2010) 5. So far as the question of jurisdiction of the Mumbai Court to try and decide the criminal complaint is concerned, it was urged that the Petitioners Company is at Chennai. Secondly, it was submitted that overdraft facilities from Respondent Bank were availed through the branch of the Respondent Bank at Chennai. It was further submitted that since the facilities were in the nature of overdraft, the same were to be repaid only on recall by the Respondent Bank, or on non-renewal of the facilities by the Respondent Bank. 6. Shri Gupte, the learned Senior Counsel appearing on behalf of the Petitioners relied on an affidavit filed by the Respondent in a proceeding in the Chennai Court. Wherein in one of the annexures to the said affidavit, it was clearly stated that the said overdraft facilities were extended till 31st January, 2009. It was submitted that this extension was granted on 15th November, 2008 and, therefore, on 19th January, 2009 and when the cheque was deposited by the Respondent, there was no existing debt or liability and since the facilities were renewed to 31st January, 2009, no arrangement had been made by the Petitioner honouring cheques in any manner as the facility was still subsisting. It was submitted that recall of 7 (Crim WP 523 of 2010) the facility was made by a notice issued by the Complainant in February, 2009. It was, therefore, submitted that there was no amount due and payable till 31st January, 2009, yet the Respondent Bank deposited the cheque on 6th January, 2009 at Chennai and then again at Mumbai on 19th January, 2009. It was further submitted that the Mumbai Court did not have jurisdiction to decide the case since no part of the cause of action had arised in Mumbai. It was submitted that the complaint under section 138 of the N.I. Act could be filed only where the transactions had been conducted and the jurisdiction of the Court could not be usurped by depositing the cheque or issuing notice from a particular place where no part of the transaction had taken place. It was submitted that initially the cheque was deposited in Chennai and thereafter, it was again deposited in Mumbai. It was submitted that the Complainant was aware that the cheque could be deposited only at Chennai. It was further submitted that the cheque was redeposited in Mumbai only with a view to harass the Petitioners. The learned Senior Counsel appearing on behalf of the Petitioners has relied on a judgment of the Apex Court in the case of Harman Electronics (P) Ltd. & Anr. vs. National Panasonic (India) Ltd. reported in 2009 (1) All MR 479. He also relied to the judgment of the 8 (Crim WP 523 of 2010) Bombay High Court in the case of Dipti Kumar Mohanty Vs. Videocon Industries Ltd., reported in 2009 Cri.L.J. 3220. He then relied on a judgment of the Bombay High Court in Ahuja Nandkishore Dongre Vs. State of Maharashtra and Anr., reported in 2007 Cri. L.J. 115 and lastly, on a judgment of the Apex Court in Suralakshmi Cotton Mills Limited vs. Rajvir Industries Ltd. and Ors., reported in AIR 2008 SC 1683. 7. On the other hand, Shri Amit Desai, the learned Senior Counsel appearing on behalf of the Complainant submitted that the High Court was expected to interfere with the order of issuance of process under section 262 only in rarest of rare case and more particularly in cases where plea has been record the High Court ordinarily should not interfere under its inherent jurisdiction. It was submitted that the charge had been explained to the accused and the plea of the Petitioners had been recorded on 18.9.2009. Affidavit in lieu of Examination-in-Chief of the Respondent No.1 Company's representative had been filed on 22.12.2009. In support of the said submission, he relied on the following judgments. 9 (Crim WP 523 of 2010) 1. Subramanium Sethuraman v. State of Maharashtra, (para 16) 2. Nikumbh Dairy Products ltd. v. State of Maharashtra (para 9) 3. Bharat Parikh v. C.B.I. & Anr.(Paras 2, 15 and 16) 4. Ratilal Bhanji Mithani v. State of Maharashtra (para 27) 5. Nandkishor R. Lohiya v. State of Maharashtra (para 19) It was secondly, submitted that the existence of debt or liability could be decided only at the time of trial. It was submitted that the Petitioners had relied on a stray line in a document i.e. Willful Default Assessment Note (WDAN). It was submitted that this document does not form part of the record before the Magistrate. It was further submitted that the said document has to be read as a whole and perusal of the entire document, will show that there was a liability, existed on the relevant date and that the Petitioners were willful defaulters. It was submitted that this disputed question could not be gone into at this stage. It was further submitted that in view of the presumption under section 118 and 139 of the Negotiable Instruments Act, this issue could not be 10 (Crim WP 523 of 2010) decided at this stage. He relied on a judgment of the Apex Court in the case of State Farming Corp. of India Ltd. v. Nijjer Agro Foods (paras 2 and 4). On the question of territorial jurisdiction, he relied on the following judgments. 1. Bansilal S. Kabra v. Global Trade Finance Ltd.,(para 4) 2. Sharad Jhunjhunwala v. Compuage Infocom Ltd. (para 8) 3. Preetha Babu v. Voltas Ltd. and Ors. (para 7) 4. Jinraj Paper Udyog v. M/s. Dinesh Associates (para 52(6)) 5. Hemlata R. Pendharkar v. Jaswantsingh R. Sonawane (paras 2,3 and 20) 6. Yashomala Engineering V. Tata SSI Ltd., (para 16). He also relied on the following judgments of the Aped Court on the said aspect. 1. K.Bhaskaran v. S. Balan (paras 14-16) 2. Samshad Begum v. B. Mohammed (paras 6-8) 11 (Crim WP 523 of 2010) 3. Preetha Babu v. Voltas Ltd. and Ors. (paras 7). Unreported Judgment dated 3rd February, 2010 in Application No.3158 of 2010. It was submitted that the drawee bank was situated within the territorial jurisdiction of the Court. It was further submitted that the registered office of the Respondent was situated within the territorial jurisdiction of the Court, the Notice was also issued from Mumbai and further the facilities were sanctioned from Mumbai, the dishonour was also at Mumbai and hence the Court at Mumbai has territorial Jurisdiction. It was further submitted that the Petitioners had issued 'At par' cheque, which is payable at all branches of its Bankers across India and, therefore, all branches of the Drawee Bank act as an agent of such Drawee Bank. The learned Senior Counsel has also relied on a judgment of the Apex Court in the case of Ahuja Nandkishore Dongre v. State of Maharashtra reported in 2006 AlL M.R. (Cri.)3357. 8. After having heard both the Counsel at length, in my view, no case is made out for interfering with the order of issuance of process. Firstly, in the present case, plea has already been recorded on 18.9.2009, 12 (Crim WP 523 of 2010) affidavit by way of Examination-in-Chief of the Respondent No.1 Company's representative has been filed on 22.12.2009. The Apex Court, in the case of Subramanium Sethuraman v. State of Maharashtra, (para 16, Nikumbh Dairy Products ltd. v. State of Maharashtra (para 9)and in respect of prosecution under other sections in the case of Ratilal Bhanji Mithani vs. State of Maharashtra, reported in AIR 1979 Supreme Court 94 and in the case of Nandkishor Rampal Lohiya and others v. State of Maharashtra, reported in 2001 Cri. L.J. 2742 has held that the High Court should not ordinarily interfere in its inherent jurisdiction after the plea is recorded and the recording of evidence has commenced. On this ground alone, in my view, it will not be possible to interfere with the order of issuance of process. However, since both the parties argued the matters on these points at length, it is necessary to briefly consider the submissions made by the learned Senior Counsel for the Petitioners. 9. So far as question of existence of debt or liability is concerned, it is quite well settled that this issue has to be decided only during the trial and cannot be decided earlier in view of the presumption under sections 118 and 139 of the 13 (Crim WP 523 of 2010) Negotiable Instruments Act. Though reliance is placed on one of the documents to show that the credit facility was extended till 31 st January, 2009. This fact has been disputed by the Complainant and, therefore, it cannot be gone into by this Court under section 482 of the Criminal Procedure Code. On the question of territorial jurisdiction also, the cheque which was issued was “At Par” cheque and, as such, could be deposited at any of the branches of the drawee bank and, therefore, the Complainant was informed to deposit the same in Mumbai Branch because it being a “At Par” cheque. Secondly, the registered office of the Complainant is at Mumbai, the notice was issued from Mumbai and further the credit facilities were also sanctioned from Mumbai and, therefore, in view of the judgment of the Apex Court in the case of K.Bhaskaran v. Sankaran Vaidhyan Balan & Anr. Reported in 1999 (4) ALL MR 452 and also the judgment of the Division Bench of this Court in the case of Preetha Babu v. Voltas Ltd. and Ors., the judgment of the Bombay High Court dated 3 rd February, 2010 in Criminal Application No. 3158 of 2010 and judgment of the Apex Court in Samshad Begum v. B. Mohammed, reported in AIR 2009 SC 1355, the Bombay Court, therefore, will have jurisdiction to try and decide the case. Lastly, it was argued that the provisions of section 202 of 14 (Crim WP 523 of 2010) the Cr.P.C. have not been applied to the present case. This Court in the case of Bansilal S.Kabra vs. Global Trade Finance Ltd. & Anr., decided on 9 th July, 2010 and 29 th July, 2010 passed in Criminal Application No. 1344 of 2010, has held that the said provision is directory and not mandatory. In another judgment of the Learned Single Judge of this Court wherein it has been held that the said provision is mandatory. However, the Learned Single Judge in the said case was pleased to decide the said case, however, proceeded to consider the cases wherein the accused had come to the Court at a belated stage and was pleased to reject such applications which were filed in the High Court on the said ground. Therefore, merely because the issue has been referred to the Full Bench, it does not mean that all such cases wherein such issue is raised should be stayed. 10. There is no substance in the submissions made by the learned Senior Counsel for the Petitioners. Hence, the writ petition is dismissed. (V.M. KANADE J.)