Online It Shoppe India Pvt Ltd & ... vs State & Anr.
2009 Latest Caselaw 4739 Del

17

*   IN        THE        HIGH     COURT    OF   DELHI     AT   NEW
DELHI

+               CRL.M.C. 2695/2009 & CRL.M.A. 9081/2009


               ONLINE IT SHOPPE INDIA PVT LTD & ORS.
                                                .....

Petitioner Through: MR. RUPESH GUPTA FOR MR. PRAGYAN SHARMA, ADVOCATE

versus

STATE & ANR. .....

Respondent Through: MR. ASIT TIWARI,

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?

Judgment (ORAL)

This is a petition under Article 226 of the Constitution for

quashing criminal complaint No. 596/09 pending before

ACMM-III, Rohini Court, Delhi.

2. A complaint under Section 138 of Negotiable

Instruments Act read with Sections 141 and 142 thereof was

filed by the respondent against the petitioners alleging

therein that in partial discharge of a legally enforceable debt,

they issued three cheques, all drawn on City Union Bank,

Karimpatta Cross Road, Pallimulkku, Ernakulam. The

cheques when presented, were dishonoured with remarks

"Payment Stopped by Drawer". A legal notice dated 17.3.09

was sent by the respondent / complainant to the petitioners

from Delhi demanding the amount of the cheques. Since the

payment was not made, this complaint was filed before the

ACMM.

3. In para 9 of the complaint it has been stated that the

cause of action for the present complaint arose at Delhi as the

office /works / business/ bank of the complainant is situated in

Delhi and the cheque was also deposited at Delhi.

4. The only contention raised by the learned counsel for the

petitioners is that Delhi courts does not have jurisdiction to

entertain the complaint as no part of the cause of action arose

in Delhi.

5. It was noted by this court while deciding C.M. No.

1580/09 and other connected matters, vide judgment dated

21.10.2009, 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 of

the payee, (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.

6/ After considering the decisions of the Hon'ble Supreme

Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and

Another, (1999) 7 SCC 510, Shamshad Begum vs. B.

Mohammed (2008) 13 SCC 77, Prem Chand Vijay Kumar v.

Yashpal Singh (2005) 4 SCC 417 and the recent decision of the

Hon'ble Supreme Court in Harman Electronics Private

Limited and Another Vs. National Panasonic India Private

Limited, (2009) 1 SCC 720, this court noted that in the case

before it the entire transaction had taken place at Delhi, the

cheques were issued and presented at Delhi and therefore,

the court at Delhi had the jurisdiction to entertain and try the

complaint. It was further noted that in view of the decision of

Hon'ble Supreme Court in Harman Electronics Private

Limited and Another Vs. National Panasonic India Private

Limited, Delhi courts would not have jurisdiction merely on

account of notice of demand having been sent from Delhi.

7. In the present case, the complainant / respondent

invokes jurisdiction of Delhi court 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 the Hon'ble Supreme Court

in Harman Electronics Private Limited and Another Vs.

National Panasonic India Private Limited, Delhi Court would

not have jurisdiction merely because notice of demand was

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

when the notice to the petitioner was sent at Ernakulam.

8. As regards presentation of the cheque, the learned

counsel for the petitioner has relied upon the decision of the

Hon'ble Supreme Court in Shri Ishar Alloy Steels Ltd. Vs.

Jayaswals Neco Ltd; (2001) 3 SCC 609. In this case the

Hon'ble Supreme Court, 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."

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

Supreme Court is that a cheque is deemed to have been

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 Ernakulam is

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

required to present it to the bank at Ernakulam, for the

purpose of encashment. Therefore, it cannot be said that the

cheques issued by the petitioners were 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 Ernakulam on which

they were drawn. Therefore, deposit of cheques in Delhi

would not confer jurisdiction of Delhi court to try this

complaint.

10. Since sending of notice from Delhi to Ernakulam 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

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.

11. 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. 2695/2009 & CRL.M.A. 9081/2009 stand

disposed of.

                                              V.K. JAIN,J

NOVEMBER                 20, 2009/ACM