Mr. B.M. Patel vs Citi Bank, Na New Delhi
2009 Latest Caselaw 4819 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 Crl.M.C.1906/2009 and Crl.M.A.7121/2009

                          Reserved on:             24th November, 2009
%                         Date of Decision:        25th November, 2009

#        Mr. B.M. Patel                                  ..... Petitioner

!                                  Through: Mr. D'Souza Philip, Adv.

                          Versus

$        CITI Bank, NA New Delhi                         ..... Respondent

^                                  Through:      Mr.    Akshay          Bipin,
                                   Addl.P.P. for the State.

: V.K. JAIN, J.

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

Criminal Procedure for quashing complaint cases No. 724/1 of

2008 and 1313/1 of 2008 filed by the respondent under Section

138 and 142 of Negotiable Instruments Act and Section 420 of

Indian Penal Code.

2. A perusal of the first complaint filed by the

respondent would show that the petitioner who was holding a

Citi Bank card, issued a cheque No.712655 dated 8 th February,

2008 for Rs.6,332/- drawn on IDBI Bank towards part payment

of the purchases made by him on the credit card. The cheque,

when presented for encashment, was returned with remarks

"payment stopped insufficient funds". A legal notice was sent to

the petitioner from Delhi requiring him to pay the amount of the

cheque within 15 days. Since he failed to make the payment,

the complaint was filed under Section 138 of Negotiable

Instruments Act.

3. In the second complaint filed under Section 138 of

Negotiable Instruments Act read with Section 420 IPC, it was

alleged that the petitioner who was holding a Citi Bank card

issued a cheque No.712656 dated 8th March, 2008 drawn on

IDBI, Park Street, Kolkata for Rs.6,332/- towards payment of the

purchases made by him on the credit card issued to him by the

complainant bank. The cheque, when sent for encashment, was

returned with remarks "payment stopped by drawer". The

complainant sent a notice requiring the petitioner to pay the

amount recovered by the cheque and on his failure to make

payment, the aforesaid complaint was filed against him.

4. In the complaint in respect of cheque No. 712655

dated 8th February, 2008, it has been alleged that in para 11 of

the complaint that collection-cum- legal unit of complainant is

situated at Delhi and demand notice was sent to the petitioner

from Delhi, and therefore, in view of the decision of the

Supreme Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan

and Another, (1999) 7 SCC 510, the Delhi Court has territorial

jurisdiction to try the complaint. In the complaint filed in

respect of cheque No. 712656 dated 8th March, 2008, it has

been alleged in para 11 of the complainant that cheque was

delivered at the office of the complainant at the above-

mentioned address, the same was sent for collection through

the collecting branch of the complainant situated within the

jurisdiction of Delhi Court and the information regarding

dishonour of the cheque was also received in the office of the

complainant situated in the jurisdiction of Delhi Court which,

therefore, has jurisdiction to try the complaint.

5. This Court, while dismissing Crl. Misc. Case No. 1580

of 2009 K.O. Issac v. State, and other connected matters vide

judgment dated 21st October, 2009, 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, 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 held

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

the complaint. It was further held 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.

6. In the complaint filed in respect of dishonour of

cheque No.712656, the complainant has specifically alleged

that the dishonored cheque was delivered to it at its office „at

the above noted address‟. Since the address given in the

complaint is of Delhi, this would imply that the cheque in

question was delivered at Delhi office of the complainant.

During the course of arguments, the learned counsel for the

petitioner disputed this averment made in the complaint and

claimed that, in fact, the cheque was delivered in Kolkata office

of the complainant bank. In a petition under Section 482 of the

Code of Criminal Procedure, it is not permissible for this Court

to go into disputed questions of fact which require recording of

evidence. For this purpose of such a petition, the allegations

made in the complaint have to be taken on their face value and

as correct. Therefore, at this stage, this Court has to assume

that the cheque No. 712656 was delivered at Delhi office of the

complainant bank. Therefore, in view of the decision of this

Court in the case of K.O. Issac v. State (supra), Delhi Court

would have jurisdiction to try this complaint.

7. As regards the complaint in respect of cheque

No.712655, there is no averment in the complaint that the

cheque in question was delivered at Delhi office of the

complainant. Jurisdiction of Delhi Court has been claimed on the

grounds that the collection-cum-legal unit of the complainant is

situated at Delhi and demand notice was sent from Delhi. Delhi

Court cannot have jurisdiction to try a complaint under Section

138 of Negotiable Instruments Act merely because the

complainant has an office or a branch situated in Delhi. No part

of cause of action arises in Delhi solely on account of an office or

a branch of the complainant being situated at Delhi. A perusal

of the cheque in question would show that it has been drawn on

IDBI Bank, Kolkata. A perusal of the Bank Memo, whereby this

cheque has been returned unpaid would show that it was

presented to and returned by Kolkata Branch of IDBI Bank. The

notice to the petitioner was also sent at Kolkata. In view of the

decisions of the Hon‟ble Supreme Court in the case of Harman

Electronics Private Limited (supra), Delhi Courts do not have

jurisdiction merely because the notice of demand was sent from

Delhi, when this is not the case of the complainant that the

notice was served in Delhi. Even if the cheque drawn on a bank

outside Delhi is deposited in a bank in Delhi that by itself would

not confer jurisdiction by the Delhi Court to try a complaint

under Section 138 of Negotiable Instruments Act unless some

other essential component of offence under Section 138 of

Negotiable Instruments Act took place in Delhi. In Ishar Alloy

Steels Ltd. Vs. Jayaswals NECO Ltd. (2001) 3 SCC 609, the

Hon‟ble Supreme Court, inter-alia, held as under:

""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."

8. For the reasons given in the preceding paragraphs, while

holding that no order is required to be passed in respect of the

complaint filed in respect of the dishonour of cheque

No.712656, it is directed that the complaint filed by the

respondent in respect of dishonour of cheque No. 712655 be

returned to it within four weeks for presenting it before a

competent Court having jurisdiction over the matter.

The petition stands disposed of accordingly.

One copy of this order be sent to concerned Court(s) for

information and necessary action.

(V.K.JAIN) JUDGE NOVEMBER 25, 2009 bg