Yogesh Kumar Malhotra vs M/S Paramound Surgimed Ltd. & Anr.
2011 Latest Caselaw 2391 Del

            IN THE HIGH COURT OF DELHI: NEW DELHI

+             CRL. M.C. No. 2610/2010

%             Judgment decided on: 4th May, 2011


YOGESH KUMAR MALHOTRA                               ....PETITIONER

                          Through:   Mr. Rajat Aneja and Ms. Shweta
                                     Singh, Advs.
                          Versus

M/s PARAMOUND SURGIMED LTD. & ANR. .......RESPONDENTS

                          Through:   Mr. Rajesh Yadav and
                                     Ms. Ruchira, Advs.

                          Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers             No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                No

       3. Whether the judgment should be                    No
          reported in the Digest?

A.K. PATHAK, J. (Oral)

1. By this petition under Section 482 of the Code of Criminal

Procedure petitioner seeks quashing of summoning order as well

as the complaint under Section 138 of the Negotiable Instruments

Act, 1881 (for short hereinafter referred to as „the Act‟) titled as

M/s Paramount Surgimed Ltd. vs. Yogesh Malhotra filed by

respondent no. 1 against the petitioner, which is pending trial

before the Trial Court.

2. Learned counsel for the petitioner has contended that entire

business transaction between the parties took place at Bassi

Pattnam, District Fatehpur Sahib, Punjab where petitioner is

carrying on business of sale and purchase of medical surgical

goods. Orders for supply of goods were placed by the petitioner

from Bassi Pattnam, inasmuch as, goods were supplied by the

respondent no. 1 at the said business place of petitioner.

Petitioner had issued cheque drawn on its banker namely State

Bank of Patiala, Bassi Pattnam. Thus, Delhi courts have no

territorial jurisdiction to try the complaint as no cause of action

had arisen in Delhi. Merely because cheque had been deposited by

the respondent no. 1 with its banker at Delhi for encashment and

notice of demand had been issued from Delhi, would not attract

the jurisdiction of Delhi courts to entertain and try the complaint

under Section 138 of the Act. Reliance has been placed on V.S.

Thakur vs. State & Anr. 2010 (114) DRJ 423 and Harman

Electronics Private Ltd. & Anr. vs. National Panasonic India

Private Ltd. (2009) 1 SCC 704. It is further contended that

cheque was not issued in discharge of any debt or other liability

but was given towards security. During the course of business

dealings three blank cheques were issued towards security which

included the cheque in question. Mr. Hardeep Singh, Authorized

Representative of respondent no. 1, had given in writing on 12th

March, 2007 to the effect that three blank cheques were taken

towards security. According to the petitioner, for this reason also

prosecution cannot continue.

3. Per contra, learned counsel for the respondent no. 1 has

vehemently contended that the cheque had been issued by the

petitioner to discharge his part liability towards supply of goods

made by the respondent no. 1. Cheque had been handed over by

the petitioner to respondent no. 1 at New Delhi, thus, Delhi courts

had jurisdiction to try and entertain the complaint under Section

138 of the Act. Reliance has been placed on an unreported

judgment dated 25th January, 2011 passed by this Court in

Criminal M.C. No. 2366/2007 titled Devendra Gupta vs. Shree

Rathee Steels Ltd. As regards the plea taken by the petitioner that

the cheque had been issued towards the security, it is contended

that the same is a disputed question of fact which needs to be

proved during the trial. In nutshell, contention of counsel for

respondent no. 1 is that complaint case cannot be quashed.

4. I have considered the rival contentions of both the parties.

Perusal of complaint, a copy whereof has been placed on record,

clearly shows that specific averment has been made to the effect

that cheque had been issued and handed over to respondent no. 1

at New Delhi. In para 5 of the complaint, it is stated that

"...........it is pertinent to mention that cheque was issued and

handed over to the concerned person of the complainant at New

Delhi." This averment has been reiterated in para 12 of the

complaint wherein it is stated "...........The cheque was issued and

handed over to the complainant at New Delhi....." It is, thus,

evident that a specific averment has been made that cheque had

been issued in Delhi. Issuance of the cheque at Delhi would mean

that cheque had been drawn at Delhi. In K. Bhaskaran vs.

Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510, Supreme

Court has held that the offence under Section 138 of the Act can

be completed only with the concatenation of a number of acts.

The following are the acts which are components of the said

offence: (1) drawing of the cheque. (2) presentation of the cheque

to the bank, (3) returning the cheque unpaid by the drawee bank,

(4) giving notice in writing to the drawer of the cheque demanding

payment of the cheque amount, (5) failure of the drawer to make

payment within 15 days of the receipt of the notice. It is further

held that it is not necessary that all the above five acts should

have been perpetrated at the same locality. It is possible that

each of those five acts could be done at five different localities. But

a concatenation of all the above five is a sine qua non for the

completion of the offence under Section 138 of the Act. If the five

different acts were done in five different localities any one of the

courts exercising jurisdiction in one of the five local areas can

become the place of trial for the offence under Section 138 of the

Act. In other words, the complainant can choose any one of those

courts having jurisdiction over any one of the local areas within

the territorial limits of which any one of those five acts was done.

5. Perusal of complaint shows that the cheque had been drawn

at Delhi and if that is so then jurisdiction of Delhi courts gets

attracted. Learned counsel for the petitioner denies that the

cheque had been issued at Delhi. If that is so, then it is a

disputed question of fact and allegations and counter allegations

have to be proved during the trial. But the fact remains that at

this stage averments made in the complaint cannot be

disregarded.

6. As regards second contention of learned counsel for the

petitioner that the cheque had been issued towards security and

not in discharge of any legally enforceable debt or any other

liability as a whole or in part is concerned, the same is also

subject matter of trial since it is a disputed question of fact in view

of the specific averment made in the complaint that the cheque

had been issued in discharge of part liability.

7. For the foregoing reasons, I do not find any merit in this

petition and the same is dismissed.

8. It is made clear that the observation made in this petition

touching merits of the case shall not affect the final outcome of

the complaint case.

9. Parties shall bear their own costs.

Crl.M.A.13714/2010 (Stay)

Dismissed as infructuous.

A.K. PATHAK, J.

May 04, 2011 ga