Delhi High Court
Din Dayal Kayan vs Smc Global Securities Ltd. on 12 July, 2010
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. Nos. 2163/2010, 2164/2010, 2165/2010 & 2166/2010
DIN DAYAL KAYAN ..... Petitioner
Through Mr. Kunal Chatterji, Advocate.
versus
SMC GLOBAL SECURITIES LTD. ..... Respondent
Through Mr. Gaurav Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 12.07.2010
These four petitions under Section 482 of Code of Criminal
Procedure, 1973 are directed against the summoning order dated 23rd
April, 2009, taking cognizance of the offence under Section 138 of the
Negotiable Instruments Act, 1882 and summoning the petitioner to
appear for dishonour of four cheques as per details given below:-
Cheque Number Date Amount
1. 059823 19.01.2008 Rs. 5,00,000/-
2. 703766 06.02.2008 Rs. 5,00,000/-
3. 703767 06.02.2008 Rs. 5,00,000/-
4 703782 21.03.2008 Rs. 4,00,000/-
2. In the petitions it is admitted that there were business dealings
between the petitioner and the complainant, the respondent herein and
the petitioner was acting as a sub-broker with a terminal of the
respondent at the petitioner's address. It is further stated that the
parties worked together up to 22nd January, 2008 and thereafter the
petitioner stopped working with the respondent-complainant.
3. As per the complaint, the aforesaid cheques were presented for
encashment and were returned back dishonoured without payment.
Thereafter, legal notice was issued. It is not stated in the petitions
whether any reply was sent to the legal notice. As per the counsel
appearing for the respondent no reply to the legal notice was received.
4. Learned counsel for the petitioner submitted that the Income Tax
Department had seized and blocked the account in question vide order
dated 28th February, 2008. It is also submitted that the cheques in
question were posted dated cheques and were given as a security. Copy
of the order passed by the Income Tax Department has not been placed
on record. The petitioner has not stated the reason and cause why the
said order was passed. Mere issue of an attachment order without
disclosure and statement why it was passed, will not justify invocation of
inherent power of the court. Whether or not attachment of seizure or
block order was justified and valid is another aspect. In the petitions it is
also not stated whether the alleged order passed by the Income Tax
Department was withdrawn, if so, on which date.
5. The details of the cheques have been given above. The cheque
numbers are not in seriatim but are of different numbers except for
cheque Nos. 2 and 3 which are both dated 6th February, 2008. Cheque
No.4 is dated after the alleged order was passed by the Income Tax
Department seizing and blocking the account. The petitioner has not
filed along with petitions copy of the statement of bank account to show
the balance and whether the balance available in the said account was
sufficient or not, when the cheques were issued and/or presented.
Further, these all are disputed questions of facts and have to be
established and proved.
6. Learned counsel for the petitioner has relied upon Harman
Electronics (P) Ltd. Vs. National Panasonic India (P) Ltd. (2009) 1 SCC
720. It is submitted that the petitioner is based in Kolkata and mere
issue of notice from Delhi will not confer jurisdiction on criminal courts
located at Delhi. A perusal of the complaint discloses that the
respondent-complainant is based and is carrying on business from New
Delhi. In paragraph 10 of the complaint it is stated as under:-
"10. That the cheque was deposited for
realization of amount here in Delhi, the return
memo was received here in Delhi, the knowledge
of dishonor of the said cheque to the
complainant accrued at Delhi registered office,
statutory notice of demand was sent from Delhi,
the complainant has its registered office at Delhi,
the cheque got dishonoured in Delhi and hence
the casue of action for filing the complaint arose
to the complainant within the jurisdiction of this
Hon'ble Court when the accused failed to make
the payment of the cheque in dispute to the
complainant within 15 days of the receipt of
notice".
7. Thus, the complainant has not invoked jurisdiction of the courts in
Delhi solely on the basis that the statutory notice of payment was sent
from Delhi. They have stated other grounds/facts for filing the complaint
in Delhi. In these circumstances, I am not inclined to accept this plea of
the petitioner.
8. I do not find any merit in the present petitions and the same are
dismissed. It is clarified that the observations made in this order are for
the purpose of the disposal of the petitions and will not be binding on
the trial Court.
9. At this stage, learned counsel for the petitioner states that the
petitioner is a resident of Kolkata and the case is fixed tomorrow for his
appearance before the trial court. He states that the trial court has
already rejected the application of the petitioner seeking exemption
from personal appearance. Counsel for the petitioner states that 2-3
days' time may be granted to enable the petitioner to come to Delhi. It
is open to the petitioner to make the said request before the trial Court,
but the petitioner must ensure that he is present and complies with the
order of the trial Court.
SANJIV KHANNA, J.
JULY 12, 2010
NA
