Icici Bank Ltd. vs Subhash Chand Bansal*
2009 Latest Caselaw 2055 Del

              HIGH COURT OF DELHI : NEW DELHI

             Judgment reserved on: May 14, 2009
            Judgment delivered on: May 15, 2009

+              (1) Crl.       Rev.     P.   No.   202/2009*
+              (2) Crl.       Rev.     P.   No.   205/2009*
+              (3) Crl.       Rev.     P.   No.   206/2009*
+              (4) Crl.       Rev.     P.   No.   210/2009*
+              (5) Crl.       Rev.     P.   No.   215/2009*
+              (6) Crl.       Rev.     P.   No.   217/2009*
+              (7) Crl.       Rev.     P.   No.   199/2009
+              (8) Crl.       Rev.     P.   No.   200/2009
+              (9) Crl.       Rev.     P.   No.   201/2009
+              (10) Crl.      Rev.     P.   No.   203/2009
+              (11) Crl.      Rev.     P.   No.   204/2009
+              (12) Crl.      Rev.     P.   No.   211/2009
+              (13) Crl.      Rev.     P.   No.   212/2009
+              (14) Crl.      Rev.     P.   No.   213/2009
+              (15) Crl.      Rev.     P.   No.   214/2009
+              (16) Crl.      Rev.     P.   No.   216/2009

%      ICICI Bank Ltd.         ...      Petitioner
                 Through: Mr. Punit Kumar Bhalla,
                          Advocate.

                                        versus

       Subhash Chand Bansal*
       Raman Kannan*
       M. Prasanna*
       A.R. Vijaya Kumar*
       Sivathanu Subramaniam*
       P. Dayanand*
       Vaneeta Bahri
       Shiv Tours & Travels
       Arun Pandey
       Mahendra Rastogi
       Naveen Yadav
       Albino Electricals
       Hitendra Nagar
       Kundan Ram
       Sudhanshu Yadav
       Satya Prakash Singh    ...                       Respondents
                  Through: Nemo.


CORAM:

Crl. Rev. P. No. 199-206/2009 and 210-217/2009                        Page 1
 HON'BLE MR. JUSTICE SUNIL GAUR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

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

SUNIL GAUR, J.

*

1. The question involved in the above-captioned eight

petitions is of territorial jurisdiction. Petitioner had filed

eight complaints under section 138 of Negotiable

Instruments Act, 1881 before a Metropolitan Magistrate,

Dwarka Courts, Delhi, against the Respondents regarding

bouncing of cheques.

2. Vide impugned orders of 12th January, 2009 and 25th

February, 2009, trial court has dismissed Petitioner's

aforesaid complaints on the ground of territorial

jurisdiction by relying upon a recent verdict of the Apex

Court in the case of "Harman Electronics (P) Ltd. and Anr.

Vs. National Panasonic India Ltd.", reported in (2009) 1

SCC 720.

3. In the above-captioned first six petitions, Petitioner's

complaints under section 138 of Negotiable Instruments

Act, 1881 have not been entertained vide impugned order

of 12th January, 2009, and have been returned to the

Petitioner at the very first hearing, for being presented Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 2 before the competent court having territorial jurisdiction

over the subject matter of these criminal complaints. In

the remaining above titled ten petitions, Respondents/

accused has been summoned but before the

Respondents/accused could appear, these ten complaints

have been returned back to the Petitioner for presenting

them before the competent court having territorial

jurisdiction.

4. Petitioner's counsel has been heard at length and the

decision in (1999) 7 SCC 510, relied upon by him have

been perused.

5. I shall first deal with the first six petitions, which have

not been entertained by the trial court at its threshold by

holding vide impugned order that it does not have

territorial jurisdiction over the subject matter of

Petitioner's complaints under section 138 of Negotiable

Instruments Act, 1881.

6. In these petitions, it is not in dispute that the

Respondents are residing outside the territorial jurisdiction

of the trial court and the bank of the Respondent is also

beyond the territorial jurisdiction of the trial court. In the

impugned order, trial court has quoted paragraphs No. 24

and 25 from a recent verdict of the Apex Court in the case

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 3 of "Harman Electronics (P) Ltd. and Anr. Vs. National

Panasonic India Ltd.", reported in (2009) 1 SCC 720,

which reads as under:-

"24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an offence completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., (2001) 6 SCC 463, emphasis has been laid on service of notice.

25. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 4 as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-a-vis the provisions of the Code of Criminal Procedure."

7. However, learned counsel for the Petitioner heavily

relies upon another decision of the Coordinate Bench of

the Apex Court in the case of "K. Bhaskaran v. Sankaran

Vaidhyan Balan and Anr., (1999) 7 SCC 510, to contend

that place of drawing of cheque, its presentation, its

return, place of giving of notice and place of failure of

drawer to make the payment would have the jurisdiction

to entertain a complaint under section 138 of Negotiable

Instruments Act, 1881, pertaining to bouncing of cheque

and the complaint can be filed at any one of the five

places and the choice will be of the Complainant.

8. It has been pointed out on behalf of the Petitioner

that aforesaid case of K. Bhaskaran (supra) has been

quoted with approval in a recent unreported decision by

the Apex Court in the case of "Smt. Shamshad Begum vs.

B. Mohammad", Crl. A. No.1715/2008, decided on 3rd

November, 2008 and the same has been relied upon by a

single bench of the High Court of Madhya Pradesh in Crl.

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 5 C. No.1233/2009, titled "Manjul vs. Wasim Shekh" decided

on 3rd March, 2009, while distinguishing the verdict of the

Apex Court in the case of Harman Electronics (Supra).

9. Learned counsel for the Petitioner vehemently

contends that the case of Harman Electronics (Supra) has

been illegally relied upon by the trial court and the same is

distinguishable on facts as in the above said case,

statutory notice was given from Delhi but the entire

transaction had taken place at Chandigarh but therefore,

it had been held that the Delhi courts do not have

territorial jurisdiction as by giving of notice alone,

territorial jurisdiction cannot be created.

10. After having heard learned counsel for the Petitioner

and upon perusal of the decisions cited, I am of the

considered opinion that the recent verdict of the Apex

Court in the case of M/s. Harman Electronics (Supra) holds

the field. This decision has been rendered by the Apex

Court on 12th December, 2008 and the earlier decision of

the Apex Court rendered in the case of K. Bhaskaran

(Supra) has been duly considered and the conclusive

observations made in paragraph No. 14, reads as under:-

"14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 6 dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would." (emphasis supplied)

11. Thus, it is abundantly clear that for commission of an

offence under section 138 of Negotiable Instruments Act,

1881, notice must be received by the accused. It may be

deemed to have been received in certain situations.

Section 177 of the Code of Criminal Procedure determines

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 7 the jurisdiction of a court trying the matter. The court will

have the jurisdiction only where the offence has been

committed. The provisions of Sections 178 and 179 of the

Code of Criminal Procedure are exceptions to Section 177.

These provisions presuppose that all offences are local.

However, there may be a case, where the accused would

have shifted his residence outside the territorial

jurisdiction of the court concerned, but then, in such a

case, the court in whose territorial jurisdiction drawee

bank, (i.e., banker of the accused) is situated would have

the territorial jurisdiction to entertain the complaint in

question. Therefore, the place where an offence has been

committed plays an important role.

12. In M/s. Harman Electronics (Supra), a contention was

raised that a debtor must seek the creditor should be

applied in a case of this nature and it was repelled in the

following words:-

"We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle."

13. It needs no elaboration that when two decisions of

coordinate benches of the Apex Court are cited, then the

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 8 later one prevails. The decision of the Apex Court in the

case of Smt. Shamshad Begum (supra) relied upon by the

Petitioner is of 3rd November, 2008; whereas, the Apex

Court decision in the case of M/s. Harman Electronics

(Supra) is of 12th December, 2008. I find myself unable to

agree with the reasoning in decision rendered by a Single

Bench of the High Court of Madhya Pradesh in the case of

Manjul vs. Wasim Shekh (Supra), as the latest decision of

the Apex Court in the case of M/s. Harman Electronics

(Supra) cannot be brushed aside by simply observing that

it was rendered in a different context and by relying upon

the decision in the case of K. Bhaskaran (Supra).

14. Trial court has taken note of the ground realities by

observing in the impugned order, which reads as follows:-

"We cannot, as things stand today, be oblivious that financial institutions have their branch offices in number of cities from where they enter into transactions with the persons interested in personal loan/housing loan/car loan/furniture loan/educational loan, etc. and the courts cannot be a mute spectator by permitting the Complainant to proceed against accused persons residing at far of places."

15. The aforesaid ground reality stands illustrated from

Crl. Rev. P. No. 210/2009, wherein the Respondent-

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 9 accused is from Vellore, which is in South India and the

complaint regarding dishonor of cheque has been filed in

Delhi courts. Taking note of such a situation, Apex Court in

the case of M/s. Harman Electronics (Supra) has declared

in unequivocal terms that financial institutions, ought not

to be permitted to do forum hunting as per their

convenience, much to the grave harassment of the

accused and a balance has to be struck. I am in respectful

agreement with the above said ratio of the decision in the

case of M/s. Harman Electronics (Supra).

16. During the course of the arguments, it had transpired

that criminal complaints of Petitioner pertain to cheque

amounts ranging from Rs.1,500/- to Rs.4,500/- only in

these matters. In such like cases, it would be too harsh

upon a Respondent/accused to come to Delhi from far of

places and to face the proceedings under section 138 of

Negotiable Instruments Act, 1881, merely because

Petitioner chooses to file the complaints under the

aforesaid Act in Delhi.

17. It is a hard reality that the financial institutions, like

the Petitioner, have made Delhi Courts a dumping ground

for filing of criminal complaints under section 138 of

Negotiable Instruments Act, 1881, in bulk and even in

cases where the territorial jurisdiction is of the courts as Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 10 far as in South India. This has resulted in choking of the

Delhi criminal courts seized with such like matters. In the

impugned order, trial court has rightly relied upon the

latest verdict of the Apex Court rendered in the case of

M/s. Harman Electronics (Supra) to hold that it does not

have territorial jurisdiction to entertain these criminal

complaints.

18. There is no illegality or infirmity in the impugned

order of 12th January, 2009 and thus, Crl. Rev. P. Nos.202,

205, 206, 210, 215 and 217 of 2009 are devoid of any

merit and are hereby dismissed.

19. Now I shall deal with the remaining ten petitions,

which pertain to impugned order of 25th February, 2009,

vide which the trial court, after taking cognizance of

Petitioner's complaints and upon issuing of notice to the

Respondent/accused and before the Respondent/accused

could appear, has returned Petitioner's complaints in

these ten matters by holding that the trial court does not

have territorial jurisdiction to proceed further with these

matters.

20. Learned counsel for the Petitioner contends that such

a course is not open to the trial court in view of the

decision of the Apex Court in the case of "Adalat Prasad

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 11 Vs. Rooplal Jindal and Ors.", (2004)7SCC338, wherein

it has been declared as under:-

"It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code."

21. Learned counsel for the Petitioner is right in his

submission that it was not open to the trial court to have

proceeded to return Petitioner's complaints, after

summoning the Respondent/accused in these complaints.

Although, no fault can be found with the view taken by the

trial court, regarding the territorial jurisdiction aspect, but,

the trial court could not have done it at this intermediate

stage. However, though the impugned order of 25th

February, 2009 passed by the trial court in these ten

petitions, i.e., Crl. Rev. P. No. 199 to 201, 203, 204, 211 to

214 and 216 of 2009, is being set aside, but the net result

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 12 is the same, i.e., while exercising inherent jurisdiction, this

court declares that Petitioner's complaints, which are

subject matter of these ten revision petitions, cannot be

entertained by the trial court for want of territorial

jurisdiction and thus, the trial court is directed to return

Petitioner's complaint in these ten petitions, to enable the

Petitioner to present them before the court of competent

territorial jurisdiction, who shall deal with it in accordance

with law. So far as the limitation aspect is concerned,

Petitioner can resort to proviso to sub-section (b) of

section 142 of Negotiable Instruments Act, 1881.

22. Resultantly, Crl. Rev. P. No. 202, 205, 206, 210, 215

and 217 of 2009 are dismissed, whereas, remaining ten

petitions, i.e., Crl. Rev. P. No. 199 to 201, 203, 204, 211 to

214 and 216 of 2009, are disposed of, in the terms, as

aforesaid.

23. Before parting with this order, a word of advise needs

to be given to the trial courts, who are dealing with cases

like the present ones. The advise is that after taking

cognizance of the offence under the Negotiable

Instruments Act, 1881, it is not open to them to suo motu

throw out the criminal complaints abruptly by declaring

that they do not have the territorial jurisdiction to deal

with the matter. Adoption of such a course is strictly

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 13 prohibited by the Apex Court in the case of "Adalat

Parshad" (supra), which is a much quoted decision. Let the

District & Session Judge-I, Delhi, convey the aforesaid

advise to the respective trial courts, who are dealing with

such like cases.

24. With aforesaid directions, these sixteen petitions

stand disposed of.

Sunil Gaur, J.

May 15, 2009 pkb

Crl. Rev. P. No. 199-206/2009 and 210-217/2009 Page 14