Delhi High Court
Rajiv Aggarwal vs State on 12 September, 2011
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No. 654/2011
% Judgment reserved on : 3rd August, 2011
Judgment delivered on: 12 September, 2011
RAJIV AGGARWAL ..... Petitioner
Through: Mr.Avadh B. Kaushik, Adv.
versus
STATE ..... Respondents
Through:Ms.Rajdipa Behura, APP for
respondent No.1/State.
Mr.Aman Lekhi, Sr. Advocate with Mr.S.
Mahapatra & Ms.Shreya Sinha, Advs
for respondent No.2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? NO
2. To be referred to Reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
SURESH KAIT, J.
1. Petitioner being aggrieved by order dated 25.01.2011
has preferred the instant petition.
2. The respondent No.2 has filed a complaint against the
petitioner No.2 through petitioner No.1 under Section 138
Negotiable Instruments Act 1881 (herein after referred as NI
Act) before the court of learned Metropolitan Magistrate,
Patiala House Courts, New Delhi, (herein after referred as
learned trial court) alleging therein that a cheque bearing
No.315266 dated 28.01.2002 for a sum of Rs.8,44,240.50
(Rupees Eight lacs forty four thousand two hundred forty and
fifty paise only) drawn on Oriental Bank of Commerce,
Thanesar District, Kurukshetra, Haryana was issued by
petitioner No.2 under the signatures of petitioner No.1. The
same was dishonoured due to 'insufficient funds' and despite
notice, the petitioners did not make payment within the
stipulated time and thus committed an offence punishable
under Section 138 of NI Act.
3. It was also alleged in the complaint that the goods
were supplied by the complainant/respondent No. 2 to the
petitioners from Rohtak, Haryana, against which the
petitioners had issued the above stated cheque in question
in order to discharge their liabilities.
4. In so far as the territorial jurisdiction is concerned, it
was stated that the cheque was presented and deposited in
Hongkong and Shangai Bank, at Connaught Place Branch,
New Delhi which is within the jurisdiction of Delhi Courts.
5. The respondent No. 2 adduced its pre-summoning
evidence by way of affidavit and learned trial court vide its
order dated 09.04.2002, took the cognizance of the offence
and issued summons to the petitioners to face the trail for
the offence punishable under Section 138 of NI Act.
6. On 03.01.2006, the petitioner No.1 appeared before
the learned trial court, who was admitted to bail, thereafter,
notice under Section 251 Cr.P.C. was framed against the
petitioner No.1 to which he pleaded not guilty and claimed
trial.
7. In post summoning proceedings, during the trial, an
affidavit in post summoning evidence was filed on behalf of
one Sanjeev Sinha claiming himself as the Authoritative
Representative of the complainant/respondent No. 2 along
with the letter purported to be an Authority letter.
8. The application for dropping of the proceedings against
the petitioners for want of territorial jurisdiction in Delhi was
filed on behalf of petitioners. Vide impugned order dated
25.01.2011, the learned trial court, while disposing the
application observed that being a summon case, the learned
trial court has no power to drop the proceedings at this
stage after taking cognizance, as these powers are vested
with High Court only under Section 482 Cr.P.C.
9. The petitioners have claimed that goods were supplied
from Rohtak, Haryana to Thanesar, District, Kurukshetra,
Haryana. Cheque was returned at Thanesar (Haryana) and it
was sent back to Mumbai (Maharashtra) and thus, no cause
of action was arisen under the territorial jurisdiction in Delhi
and therefore, Delhi court has no territorial jurisdiction to
entertain and try the present complaint.
10. On the other hand, the respondent No. 2/complainant
has claimed that he has preferred the criminal complaint
before the learned trial court on the basis of following cause
of actions:-
(a) the Regional office of respondent No.2/
complainant is situated at New Delhi.
(b) the respondent No.2/complaint company
presented the aforesaid cheque for encashment
with their Bankers at New Delhi.
(c) The respondent No.2/complainant company
issued legal notice dated 21.02.2002 from New
Delhi calling upon the petitioners/ accused to
make the payment of dishonoured cheques.
11. In K. Bhasakaran V. Sankaran Vaidhyan Balan & Anrs.
(1999) 7 SCC 510, Hon'ble Supreme Court has taken the
view that the offences under Section 138 NI Act can be
completed only with the concatenation of five acts. The
following are the grounds which are the components of the
said offence:-
(i) Drawing of the cheque.
(ii) Presentation of cheque to the Bank.
(iii) Returning of the cheque unpaid by the
Drawee Bank.
(iv) Giving notice in writing to the Drawer of the
cheque demanding payment of the cheque
amount.
(v) Failure of Drawer bank to make payment
within fifteen days in respect of the notice.
12. Thereafter, in Delhi High Court Legal Services
Committee V. GNCT of Delhi 163(2009) DLT 56 (DB) the view
was taken in the light of M/s Harman Electronics Pvt. Ltd Vs.
National Panasonic India Pvt. Ltd 2009(1) SCC 720, that
mere issuing notice from the place does not make
jurisdiction.
13. It is pertinent to mention here that the aforesaid
judgment passed by this Court, has been subjected to
challenge in Special Leave Petition (C) No.29044/2009 titled
Vinay Kumar Shailendra Vs. Delhi High Court Legal Services
Committee & Anr. and the Apex Court vide order dated
03.11.2009, while referring the matter to larger Bench, had
directed 'Status quo, as on today, shall be maintained until
further orders'.
14. I have recently taken my view in the light of Judgment
of Hon'ble Supreme court in K. Bhaskaran (supra) that one
out of the five components as stated above make the
jurisdiction to try the complaint under Section 138 of NI Act.
15. Therefore, this case is also fully covered as the view
taken in Criminal Revision Petition No.170/2010 decided on
09.09.2011 in GE Capital Transportation Financial Services
Limited V. Rahisuddin Khan.
16. I, note that in the present case, the cheque was
presented at a Bank situated at Delhi and legal notice was
also issued to the petitioner from Delhi. Therefore, Courts at
Delhi has the territorial jurisdiction to try the present
complaint.
17. Keeping the above discussion into view, I find no merit
in the case. Accordingly, Criminal M.C. No.654/2011 is
dismissed.
18. No order as to costs.
SURESH KAIT, J
September 12, 2011
j
