Surjeet Singh vs M/S.G.E.Capital Transport ...
2010 Latest Caselaw 375 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRL.M.C.No.2876/2009.

%                       Reserved on:        15th January, 2010
                        Date of Decision:   22nd January, 2010

#      SURJEET SINGH                           ..... Petitioner
!                 Through:         Mr.Sunil Kumar Kalra, Advocate

                        versus

$      M/S.G.E.CAPITAL TRANSPORT
       FINANCIAL SERVICES & ANR.           ..... Respondents
^                  Through:  Mr.Divjot Singh & Mr.Gurpreet
                             Singh, Advcoates, for R-1.

*      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
              reported in the Digest?                   Yes


: V.K. JAIN, J.

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

Proceedings for quashing the criminal complaint filed by

respondent No.1, against the petitioner, under Section138 of the

Negotiable Instruments Act. Quashing of the complaint has

been sought on the ground that Delhi Court has no jurisdiction

to entertain and try the complaint.

2. A perusal of the complaint would show that jurisdiction of

Delhi Court was claimed on the ground that notice demanding

payment was issued from New Delhi, the petitioner was required

to make payment to the complainant/respondent No.1 at Delhi

and the bank of the complainant/respondent No.1 is situated in

New Delhi.

3. There are five essential ingredients of offence under

Section 138 of the Negotiable Instruments Act, as held by the

Supreme Court in the case of "K.Bhaskaran Vs. Sankaran

VAidhyan Balan & Another", (1999) 7 SCC 510, (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.

4. This is not the case of the complainant that the cheque in

question was issued and delivered to it in Delhi. There is no

allegation to this effect in the complaint. On the other hand, the

petitioner has specifically stated that cheques in question was

issued in Raipur. It is also not disputed that the cheque in

question was drawn on a bank in Raipur and was dishonoured by

that bank at Raipur. It is also not in dispute that the notice of

demand, though issued from Delhi, was sent to the petitioner at

Raipur and, therefore, this is not the case of the

complainant/respondent No.1 that the notice was served upon

the petitioner in Delhi.

5. It was held by the Hon'ble Supreme Court in the case of

"Harman Electronics Private Limited & Another Vs.

National Panasonic India Private Limited", 2009 (1) SCC

720:

"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, the commission of an offence completes."

6. The only plea taken by the learned counsel for the

complainant/respondent No.1 was that the cheque in question

having been deposited with the bank of the complainant in Delhi

and presentation of the cheque being an essential component of

the offence under Section 138 of Negotiable Instruments Act,

Delhi Court would have jurisdiction to entertain and try the

complaint.

7. As regards presentation of the cheque, the Hon'ble

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."

8. 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

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

deposited in Delhi, is required to present it to the bank at

Raipur, 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 Raipur on which it was drawn. Therefore, deposit

of cheque in Delhi would not confer jurisdiction on Delhi

court to try this complaint.

9. Since sending of notice from Delhi to Raipur 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.

10. The learned counsel for the respondent, in support of his

contention, has relied upon the decision of this Court in "Lok

Housing & Constructions Limited Vs. Raghupati Leasing &

Financel Limited & Another 100 (2002) DLT 38, where a Single

Judge of this Court relied upon the decision of the Hon'ble

Supreme Court in the case of "K.Bhaskaran Vs. Sankaran

Vaidhyan Balan & Another", (1999) 7 SCC 510. No doubt,

presentation of the cheque to the bank is an essential ingredient

of the offence punishable under Section 138 of the Negotiable

Instruments Act but, in view of the authoritative pronouncement

of the Hon'ble Supreme Court in the case of Shri Ishar Alloy

Steels Ltd. (supra), it is not possible for this Court to say that

the cheque even if deposited with the bank of the complainant

situated in Delhi was presented to the `bank' in Delhi. The

expression `bank' used in Section 138 of the Negotiable

Instruments Act would always mean the bank of the drawer and

not the bank of the payee. The payee may have multiple

accounts and may deposit the cheque in any of the accounts

maintained by it. In fact, if the payee is a large company or

organization, it is likely to have multiple accounts in different

places. If it is held that the expression `bank' in Section 138 of

the Negotiable Instruments Act mean the bank of the payee, it

will be possible for the complainant to institute the complain in

any city where he may be having a bank account and, thereby

harass the drawer of the cheque by filing complaints at the place

where the cheque is deposited by him. On the other hand, if the

expression `bank' is taken to mean the bank on which the

cheque is drawn, the place of presentation of the cheque would

always be a fixed place and will not change depending upon the

place at which the cheque is presented by the payee to its bank.

Even if two interpretations of the expression `bank' are possible,

the Court would take the interpretation which is favourable to

the accused, the provisions of the Negotiable Instruments Act

being penal provisions requiring strict interpretation of law.

11. For the reasons given in the preceding paragraphs, I am of

the view that Delhi Court has no jurisdiction to entertain and try

this complaint. It is, therefore, directed that the complaint filed

by respondent No.1 be returned to it within four weeks for

presenting it before a competent court having jurisdiction in the

matter.

V.K. JAIN (JUDGE) JANUARY 22, 2010 RS/