IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO 224, 228, 229, 230, 231 and 232 of 2010 Date of Decision 24th February, 2011 __________________________________________________________ Cr.MMO 224, 228,229,230, 231 & 232 of 2010 Piyush Shah ….Petitioner. Versus J.B.T. Perfumes Pvt. Ltd ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ___________________________________________________________ Cr.MMO Nos. 224, 228, 229, 230, 231 & 232 of 2010 For the Petitioner: Mr. Pawan Gautam, Advocate. For Respondent: Mr. Satyen Vaidya, Adovcate. __________________________________________________________________ Dev Darshan Sud, J (oral) This is the second round of litigation between the parties. The petitioner seeks quashing of the trial at Shimla where a complaint under Section 138 of the Negotiable Instrument Act (hereinafter referred to as “the Act”) has been filed against him by the respondent. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. The undisputed fact is that prior to the institution of the present petition, the petitioner had approached this Court by way of Cr.MMO No. 182 of 2010 alleging therein that Courts at Shimla or anywhere in Himachal Pradesh were not vested with jurisdiction to take cognizance of the complaint as filed by the petitioner. The learned Court rejected the prayer which order was challenged in this Court. By my order dated 17th September, 2010 I issued positive direction to the trial Court that it should determine the question of jurisdiction before proceeding with the matter. 3. Adverting to the other facts before passing of the order by me, the learned trial Court was dealing with the application (Annexure P-8 of each petition) in which certain averments were made by the complainant namely that all transactions were entered into between the parties at Ahemdabad, the cheque in question was returned as unpaid at Ahemdabad, the memo of dishonouring cheque was also issued by the ICICI Bank at Ahemdabad. It was in this backdrop that the complainant then urged that Courts at Shimla have no jurisdiction to try the matter and the learned trial Court has not determined jurisdiction under Sections 177, 178 and 179 of the Code of Criminal Procedure. After the decision of this Court on 17.9.2010 another application Annexure P-11 was instituted by the petitioner inter alia challenging the jurisdiction of this Court to try the complaint. The allegations made therein were denied by the respondent. 4. It is unfortunate that instead of leading evidence on the issue of jurisdiction, parties straightway argued on the issue 3 as to whether the Court had territorial jurisdiction to try the case or not. The petitioner by relying upon the precedent of the Supreme Court in M/s Harnam Electronics (P) Ltd. & Anr. Vs. M/s National Panasonic India Ltd., AIR 2009 SC 1168, urged that it is the Courts at Ahemdabad which had jurisdiction to try the case. It is one thing to say and urge that Court has no jurisdiction to try the case; but this has to be substantiated by some evidence. This was the course to be followed. On the bundle of facts constituting cause of action which excluded any transaction taking place at Shimla, it was but natural that evidence on this point should have been led before the trial Court. This was the fundamental point which nobody has cared to apply his mind to. I must express my anguish in the manner in which the petitioner is fighting without substantiating his contentions in accordance with law. However, keeping in view the facts and circumstances of the case, since the jurisdiction is a fundamental issue which has to be determined before any other or further action is taken by Court, the impugned order is set aside with a direction that it will be open to the parties to lead evidence on this issue. However, since the respondent has been dragged to this Court for the second time, this will be subject to the petitioner paying `5500/- as costs to the respondent in each of the petitions on the first date of hearing before the learned trial Court. The petition is allowed. All pending miscellaneous application(s) stand disposed of being infructuous. Parties to appear before the learned trial Court on 31st March, 2011. Needless to add that the learned trial Court shall make an endeavour to dispose of the preliminary 4 issue/submission as raised by the petitioner herein at the earliest possibly. Record received be sent back forthwith. February 24th, 2011 (Dev Darshan Sud), ms Judge 5