V.S. Thakur vs State & Anr.
2009 Latest Caselaw 5013 Del

18

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of Decision: December 7, 2009

+      CRL.M.C. 2854/2009 & Crl.M.A.9663/2009

       V.S. THAKUR                     ..... Petitioner
                          Through Mr.Akshay Malik, Advocate.

                     versus


       STATE & ANR.                    ..... Respondent
                          Through Mr.Amit Sharma, APP for the State.

       CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN


     1. Whether the Reporters of local papers

       may be allowed to see the judgment?           Yes

     2. To be referred to the Reporter or not?      Yes

     3. Whether the judgment should be              Yes
        reported in the Digest?


V.K.JAIN, J. (ORAL)

1. This is a petition under Section 482 of the Code of Criminal

Procedure quashing the complaint filed by respondent No.2

against the petitioner under Section 138 of Negotiable

Crlmc2854.09 Page 1 Instruments Act.

2. Learned counsel for respondent No.2 states that Delhi

Court has jurisdiction to try the complaint as the notice of

demand was sent from Delhi and cheque in question was

deposited with the bank of the complainant/respondent No.2 in

Delhi.

3. There are five essential components of the offence under

Section 138 of Negotiable Instruments Act (i) drawing of the

cheque, (ii) presentation of the cheque to the bank (iii) return of

the cheque unpaid by the drawee bank, (iv) giving of notice to

the drawer of the cheque demanding payment of the cheque

amount and (v) failure of the drawer to make payment within 15

days of the receipt of the notice.

4. In the present case, the complainant/respondent invokes

jurisdiction of Delhi courts on two grounds; firstly, that the

notice of demand was sent to the petitioner from Delhi; and

secondly, that the cheques in question were deposited with the

banker of the respondent No.2/complainant in Delhi. In view of

the decision of Hon'ble Supreme Court in Harman Electronics

Private Limited and Another Vs. National Panasonic India

Crlmc2854.09 Page 2 Private Limited, (2009) 1 SCC 720, Delhi courts would not have

jurisdiction merely because notice of demand was admittedly

sent from Delhi or office of the complainant is situated in Delhi

when the notice to the petitioner was sent at Dehradun. In that

case, the appellant was carrying business at Chandigarh. The

complainant had its head office at Delhi and a branch office at

Chandigarh. The cheque in question was issued, presented and

dishonoured at Chandigarh. The respondent / complainant issued

notice to the appellant from Delhi. The notice was served upon

the appellant at Chandigarh. On failure of the appellant to pay

the amount of the cheque, a complaint was filed at Delhi. An

application filed by the appellant questioning jurisdiction of the

court at New Delhi was dismissed on the ground that since the

notice was sent by the complainant from Delhi, the appellant had

failed to make payment at Delhi and the respondent was carrying

out business at Delhi, the Delhi court had jurisdiction to

entertain the complaint.

5. The jurisdiction of the court at Delhi was claimed on the

ground that the cheque though deposited at Chandigarh, they

having been sent by Citi Bank N.A. for collection at Delhi, the Crlmc2854.09 Page 3 amount became payable at Delhi and the notice of demand was

sent from Delhi requiring the appellant to make payment at

Delhi. The Hon'ble Supreme Court noted that (i) the

complainant had a branch office at Chandigarh; (ii) transactions

were carried on only from Chandigarh; (iii) cheques were issued

and presented at Chandigarh and (iv) dishonour of the cheques

took place at Chandigarh. As regard, issue of notice from Delhi,

Hon'ble Court held that issuance of notice would not by itself

give rise to a cause of action but communication of notice would

give. The Hon'ble Court was of the view that for constituting

offence u/s 138 of Negotiable Instruments Act, the notice must

be received by the accused, though it may be deemed to have

been received in certain situations. The Hon'ble Supreme Court

also referred to its own decision in Mosaraf Hossain Khan v.

Bhagheeratha Engg. Ltd. (2006) 3 SCC 658. In that case

respondent No.1 issued certain cheques to the appellant from

Ernakulam, which were deposited by him with Suri Branch of the

Bank. The respondent was also having an office at Ernakulam.

On return of the cheques, demand notice was sent by the

appellant to the respondents. On non-payment, criminal

Crlmc2854.09 Page 4 complaint was filed by the appellant in the court of the Chief

Judicial Magistrate, Bir Bhum at Suri. It was observed that

sending of cheques from the Ernakulam or the respondent

having an offence at that place did not form an integral part of

the cause of action for which a complaint petition was filed by

the appellant and cognizance of the offence u/s 138 of Negotiable

Instruments Act was taken by the Chief Judicial Magistrate, Suri.

It was noted that while issuance of notice by the holder of

Negotiable Instrument is necessary, service thereof is also

imperative and only after service of such notice and failure on

the part of the accused to pay the demanded amount, within a

period of 15 days thereafter, the commission of an offence

completes and, therefore, giving of notice cannot have

precedence over the service. The Hon'ble Court declined to

apply the civil law Principle that the debtor must seek the

creditor, to a criminal case. Holding that jurisdiction in a

criminal case is governed by the provisions of Criminal

Procedure Code and not on common law principle, It was held

that Delhi Court had no jurisdiction to try the case.

6.    As       regards       presentation   of    the   cheque,    the    Hon'ble
Crlmc2854.09                                                                 Page 5

Supreme Court in Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco

Ltd; (2001) 3 SCC 609, inter-alia, held that ""The bank" referred

to in clause (a) to the proviso of Section 138 of the Act would

mean the drawee bank on which the cheque is drawn and not all

the banks where the cheque is presented for collection including

the bank of the payee, in whose favour the cheque is issued."

It was further observed that "the payee of the cheque has

the option to present the cheque in any bank including the

collecting bank where he has his account but to attract the

criminal liability of the drawer of the cheque such collecting

bank is obliged to present the cheque in the drawee or Payee

bank on which the cheque is drawn within the period of six

months from the date on which it is shown to have been issued."

In para 10 of the judgment the Hon'ble Supreme Court

further observed that "Sections 3, 72 and 138 of the Act would

leave no doubt in our mind that the law mandates the cheque to

be presented at the bank on which it is drawn if the drawer is to

be held criminally liable."

7. The ratio of the above referred judgment of the Hon'ble

Supreme Court is that a cheque is deemed to have been

Crlmc2854.09 Page 6 presented to the banker of the drawer irrespective of the fact

whether it is deposited by the payee in his own bank. The

banker of the payee, after receiving the cheque from him, is

required to present it to the banker of the drawer and therefore

if the cheque issued from a bank in Dehradun is deposited in

Delhi, the bank in which it is deposited in Delhi, is required to

present it to the bank at Dehradun, for the purpose of

encashment. Therefore, it cannot be said that the cheque issued

by the petitioner was presented in Delhi, despite the fact that the

bank in which the respondent No. 2 had an account was in Delhi,

the cheque shall be deemed to have been presented only to the

bank at Dehradun on which it was drawn. Therefore, deposit of

cheque in Delhi would not confer jurisdiction of Delhi court to try

this complaint.

8. Since sending of notice from Delhi to Dehradun does not

confer jurisdiction on Delhi Court in view of the decision of the

Hon'ble Supreme Court in the case of Harman Electronics

Private Limited (supra) and the deposit of cheque with the

banker of respondent No. 2 in Delhi also does not confer

jurisdiction of Delhi court when the cheque is presented to a

Crlmc2854.09 Page 7 bank outside Delhi, and there is no other ground which would

confer jurisdiction on Delhi Court, it cannot be said that the

Delhi Court has the jurisdiction to try this complaint.

9. For the reasons given above, it is directed that the

complaint filed by respondent No.2 be returned to it within four

weeks for presenting it before a competent court having

jurisdiction over the matter.

CRL.M.C. 2854/2009 & Crl.M.A.9663/2009 stand disposed of.

                                                          V.K. JAIN,J
DECEMBER 07, 2009
'sn'




Crlmc2854.09                                                     Page 8