Crl.M.No. M-22607/2010(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.M.No. M-22607/2010(O&M) Date of decision: 9.8.2010. Jaspreet ....................Petitioner v. M/s Aggcon Equipment International Pvt.Ltd. & Anr. .....................Respondents Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr. Rajesh Lamba,Advocate for the petitioner. Jaswant Singh.J. The present petition under Section 482 Cr.PC has been filed by Ms.Jaspreet being the Director and Authorised Signatory of M/s H.R.Infrastructure Pvt.Ltd. (for short accused petitioner company) for quashing order dated 17.4.2007 passed by the learned JMIC, Faridabad summoning the accused petitioner company in a criminal complaint under Section 138 of the Negotiable Instruments Act,1881 (for short the Act) filed by the M/s Aggcon Equipment International Private Limited (for short complainant company) ; as well as the complaint itself. Briefly noticed, the facts are that complainant-company is having its Regional Office at Faridabad and its registered office is situated at New Delhi whereas the accused petitioner-company is Crl.M.No. M-22607/2010(O&M) 2 located at New Delhi. While the accused/petitioner-company is engaged in the business of construction on contract basis, the complainant-company is engaged in the business of providing of Soil Compactor on hire on monthly basis to other companies. It is alleged in the complaint that Ms.Jaspreet and Mr.SS Sethi, being the Directors of the accused /petitioner-company entered into an agreement with the complainant-company for providing soil compactors. The complainant- company supplied requisite soil compactors to the accused/petitioner- company and accordingly issued various bills to the accused/petitioner- company, as detailed in para 3 of the complaint. It is further alleged in the complaint that Directors of the accused/petitioner-company after admitting their liabilities to make the part payment/part discharge of the debt/outstanding dues issued account payee cheque no.022023 dated 22.11.2006 for Rs.1,00,000/-, in favour of complainant-company, drawn on HSBC Ltd., 25, Bara Khamba Road,New Delhi(hereinafter referred to drawee bank). The complainant-company presented the said cheque for encashment to its bankers i.e. IDBI Bank Ltd.,Faridabad (hereinafter referred to as collecting bank). The said cheque was dishonoured by the drawee bank on account of “insufficient funds” vide memo dated 22.3.2007. Thereafter complainant-company sent a legal notice dated 30.3.2007 calling upon the accused/petitioner- company to make the payment of the dishonored cheque. Since the accused/petitioner-company failed to make the payment of the dishonored cheque, the complainant-company filed a complaint under Crl.M.No. M-22607/2010(O&M) 3 Section 138 of the Act. It is in the said complaint that the learned JMIC vide impugned order dated 17.4.2007 summoned the accused for prima facie having committed an offence under Section 138 of the Act. Heard learned counsel for the petitioner. The learned counsel for the petitioner-company has made twofold submissions to challenge the complaint and the summoning order. Firstly, it was submitted that the Courts at Faridabad have no territorial jurisdiction to entertain the complaint in question in view of the decision of Hon'ble the Supreme Court in Harman Electronics Private Limited and another v. National Panasonic India Private Limited, (2009) 1 SCC 720. It was then argued that the learned Magistrate before issuing notice to the accused/petitioner-company, residing outside his territorial jurisdiction has not held any enquiry as mandated under Section 202 Cr.PC. After hearing the learned counsel, I find that both the pleas raised on behalf of the accused petition company are untenable. As regards the question of territorial jurisdiction, I find that the facts of the present case are clearly distinguishable from the facts in Harman Electronics' case (supra). In Harman Electronics case (supra), the appellant accused carried its business in Chandigarh and the cheque was issued at Chandigarh, the complainant had its Head Office at Delhi but had also a Branch Office at Chandigarh and the cheque was presented with the collecting bank at Chandigarh which was dis-honoured at Chandigarh. However, the complainant issued a Crl.M.No. M-22607/2010(O&M) 4 notice upon appellant accused asking it to pay the amount from New Delhi and thereafter the respondent-complainant filed a complaint at New Delhi. In view of such facts, Hon'ble Supreme Court held that mere issuance of a notice from Delhi would not confer territorial jurisdiction to the Courts in Delhi. In the present case it is not disputed that though the registered office of the complainant-company is located at New Delhi, but it also has a regional office at Faridabad. It is also not disputed that the dishonored cheque issued by accused/petitioner-company was deposited by the complainant-company with its collecting bank at Faridabad. Hon'ble the Supreme Court in K.Bhaskaran v. Sankaran Vaidhyan Balan and another, JT 1999(7) 558, in view of the provisions of Section 177 & 178 of the Criminal Procedure Code and components of offence under Section 138 of the Act, in relevant paras 14 to 16, held as under:- “14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said office: (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 Crl.M.No. M-22607/2010(O&M) 5 amount, (5) Failure of the drawer to make payment within 15 days of the receipt of the notice. 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 completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:- “Whether 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 local 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 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 an idle exercise to raise jurisdictional question regarding the offence Crl.M.No. M-22607/2010(O&M) 6 under Section 138 of the Act.” Thus applying the ratio of decision in K.Bhaskaran's case supra on the admitted facts of the present case that the complainant- company has its regional office at Faridabad, the dishonored cheque was presented by the complainant-company before its collecting bank at Faridabad and the notice was also issued at Faridabad, the plea raised on behalf of the petitioner-company that no cause of action arises at Faridabad is without any basis and hence rejected. I also do not find any force in the contention of the learned counsel that before issuing notice to the accused/petitioner-company, residing outside his territorial jurisdiction, the learned Magistrate has not held any enquiry as mandated under Section 202 Cr.PC.Amended Section 202 Cr.P.C. reads as under:- “Postponement of issue of process-(1) Any Magistrate,on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Crl.M.No. M-22607/2010(O&M) 7 Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session;or (b) where the complaint has not been made by a Court,unless the complainant an the witnesses present (if any) have been examined on oath under Section 200. (2)In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant”. A perusal of the impugned summoning order dated 17.4.2007 reveals that while passing the said order, the leaned JMIC,Fairdabad has held the requisite inquiry. The said fact is apparent from a reading of the impugned order, which is reproduced hereunder:- Present: Complainant in person with counsel. Heard. In order to discharge his liability, the accused issued the following Crl.M.No. M-22607/2010(O&M) 8 cheques Cheque No. & Date Amount Drawn On Cheque no.022023 dated 22.11.2006 for Rs.1,00,000/- drawn on HSBC Ltd., 25, Bara Khamba Road, New Delhi. Complainant deposited the above said cheque to his banker but the banker of the accused dishonoured the cheque on account of "Insufficient Funds" vide memo dated 22.3.07. Legal notice dated 30.3.2007 was issued to the accused but no payment was made. In the light of the oral as well as documentary evidence on record, I am inclined to hold that there is a prima-facie case against the accused for committing offence under Section 138 of the Negotiable Instruments Act. Let the accused no.1 and 2 be summoned accordingly for 9.8.2007 on filing of requisite PF, copy of complaint and list of witnesses etc." (emphasis supplied). Thus, it cannot be said that before passing the impugned summoning order the learned JMIC has not held any enquiry as contemplated under Section 202 Cr.PC, rather it is manifest that before summoning the accused the learned Magistrate has gone through the oral as well as documentary evidence adduced by the complainant- Crl.M.No. M-22607/2010(O&M) 9 company and therefore substantially complied with the provisions of Section 202 Cr.PC. For the reasons recorded above,finding no merit in this petition the same is hereby dismissed. 9.8.2010 (Jaswant Singh) joshi Judge