* IN THE HIGH COURT OF DELHI AT NEW DELHI
35
+ TR.P.(CRL.) 68 of 2014
HDFC BANK LTD. ..... Petitioner
Through: Mr. Dayan Krishnan, Senior Advocate
with Mr. Harsh Sinha and Ms. Swati Goswami,
Advocates.
versus
VARDHMAN PRECISION PROFILES
& TUBES P. LTD. & ANR. ..... Respondents
CORAM: JUSTICE S. MURALIDHAR
ORDER
% 24.09.2014 Crl.M.A. No. 15042 of 2014 (for exemption)
1. Exemption allowed subject to all just exceptions.
2. The application is disposed of.
TR.P. (Crl) 68 of 2014 & Crl.M.A. No. 15041 of 2014 (for stay)
3. The Petitioner, HDFC Bank Limited, seeks by way of the present transfer petition, a direction that one of its cases under Section 138 of the Negotiable Instruments Act, 1881 („NI Act‟) i.e CC No. 2583 of 2014 titled HDFC Bank Limited v. Vardhman Precision Profiles & Tubes Pvt. Ltd., should continue to be tried in the Court of the learned Metropolitan Magistrate („MM‟), Dwarka Courts, New Delhi.
4. The provocation for this petition is an order passed by the learned MM, Dwarka Courts on 29th August 2014, which reads as under: Tr.P. (Crl) No. 68 of 2014 Page 1 of 5
"29.08.2014 Present: Sh. Sachin Katyal, Ld. Counsel for the Complainant.
Matter is listed for appearance of the accused.
The Hon‟ble Supreme Court has given following observations for ascertaining the territorial jurisdiction in offence under Section 138 N.I. Act in case titled as 'Dashrath Rupsing Rathod v. State of Maharashtra & Anr [Criminal Appeal No. 2287 of 2009, decided on 1 st August 2014 (Three Judge Bench)]:-
"Accordingly a reading of Section 138 NI Act in conjunction with Section 177, CrPC leaves no manner of doubt that the return of the cheque by the drawee bank alone constitutes the commission of the offence and indicates the place where the offence is committed. In this analysis we hold that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank, is located."
In the present case, since the drawee Bank is located outside jurisdiction of this Court. Therefore, the complaint is hereby returned for filing in the Court of proper jurisdiction.
The original complaint and documents be returned to the Complainant with proper endorsement after taking the certified copies of the same on record from him.
The file be consigned to record room after releasing the complaint and documents or after a period of 30 days from today, in case no one approaches to get the complaint and documents released earlier.
Copy of this order be given dasti to the Complainant/AR/ counsel."
5. Mr. Dayan Krishnan, learned Senior counsel appearing for the Petitioner, submits that there are nearly 10,000 cases of the HDFC Bank which have been, pursuant to the order issued by this Court on its Tr.P. (Crl) No. 68 of 2014 Page 2 of 5 administrative side, filed in the Dwarka Courts. That order was issued in the form of a public notice by this Court on 22nd October 2008. Para 7 of the public notice reads as under:
"7. All cases under Section 138 Negotiable Instruments Act involving financial institutions will be treated as separate category and all cases of the said category pertaining to jurisdiction of four Police Districts, namely, New Delhi, South, South-East and South-West pending at Patiala House Courts, except where all the accused have already put in appearance, shall be transferred by the Sessions Judge to A.C.MM.-02 (Airports) at Dwarka who shall allocate them to the Courts of Metropolitan Magistrates at Dwarka Court Complex. Fresh cases of the said category pertaining to entire Delhi shall be filed and entertained by the Courts at Dwarka Courts Complex w.e.f. 1st November 2008."
6. As a result of the public notice the financial institutions including HDFC Bank, were filing their criminal cases under Section 138 NI Act in the Dwarka Courts. At the time when the above public notice was issued, the law concerning the appropriate Court where the complaint under Section 138 NI Act should be filed as was as settled by the Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan Balan (1991) 7 SCC 510.
7. Another factor to be noticed is that at the time the High Court issued the above public notice there was only one district and sessions division for the entire territory of Delhi. That situation changed in 2013. On 19th February 2013 the High Court announced that consequent upon the creation of 11 district/sessions divisions/metropolitan areas by the Tr.P. (Crl) No. 68 of 2014 Page 3 of 5 Government of National Capital Territory of Delhi („GNCTD‟) the cases of a particular sessions division should be transferred to the respective courts. The further order was, however, silent as regards the cases of financial institutions. This Court by an order dated 10th February 2014 in Transfer (Criminal) Petition No. 7 of 2014 (Indian Technomac Company Private Limited v. State) highlighted the anomaly this created. Nevertheless, in that case, the complaint was directed to be transferred from the Dwarka Court to the court of appropriate jurisdiction.
8. The situation has now undergone a further change as a result of the recent decision of a three-Judge Bench of the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCALE
97. It has now been clarified that a complaint under Section 138 of the NI Act is maintainable only in the Court within whose jurisdiction the drawee bank is located. As regards pending cases, the Supreme Court has in Dashrath Rupsingh Rathod (supra) clarified that "only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145 (2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place." Admittedly, in the case at hand the stage of such recording of evidence under Section 145 (2) of the NI Act has not been reached. Consequently, this Court does not find any error having been committed by the learned MM in following the law laid down by the Tr.P. (Crl) No. 68 of 2014 Page 4 of 5 Supreme Court in Dashrath Rupsingh Rathod (supra) and returning the complaint for being filed in the appropriate Court.
9. Mr. Krishnan urges that till such time the High Court on administrative side does not further clarify the position, the earlier arrangement put in place by way of public notice dated 22nd October 2008 should continue. The Court is unable to accept the above submission. In view of the law explained by the Supreme Court in Dashrath Rupsingh Rathod (supra), which has been correctly followed by the learned trial Court in the instant case, the direction issued by the High Court on the administrative side cannot obviously continue to operate.
10. The petition and the pending application are dismissed.
11. Order be given dasti.
S. MURALIDHAR, J.
SEPTEMBER 24, 2014 Rk Tr.P. (Crl) No. 68 of 2014 Page 5 of 5