Sneh Dhawan vs State & Anr.
2012 Latest Caselaw 6833 Del

$~32
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.M.C. 3551/2012
                                        Decided on 29th November, 2012

      SNEH DHAWAN                                         ..... Petitioner
                             Through:   Mr. Pankaj Bhatia and Mr. Mehak,
                                        Advs.
                    versus

      STATE & ANR.                                  ..... Respondents
                             Through:   Mr. Mukesh Gupta, APP
                                        Mr. Tarkeshwar Nath, Adv. for
                                        respondent no.2.
      CORAM:
      HON'BLE MR. JUSTICE A.K. PATHAK


A.K. PATHAK, J.(ORAL)

1.    Complaint under Section 138 of the Negotiable Instruments Act,

1881 filed by the respondent no. 2 against the petitioner is pending trial

before the Trial Court.

2.    Petitioner has challenged the jurisdiction of Delhi courts to entertain

and try the complaint. The question which needs to be redressed in this

petition is „whether Delhi courts have territorial jurisdiction to try the

complaint?‟

3.    A perusal of complaint makes it clear that the parties are residing in
 NOIDA, U.P.; transactions between them took place at NOIDA; cheque was

issued in NOIDA; cheque is drawn on a bank in NOIDA; respondent

deposited the cheque for encashment, with its banker, that is, HDFC K/14-

18, Sector 18, NOIDA; cheque was returned unpaid with the return Memo

at NOIDA. Only notice was got issued through a lawyer based in Delhi.

Para 14 of the Complaint reads as under :-

             "That the cause of action has arisen within the
             territorial jurisdiction of this Hon‟ble Court as the
             statutory notice was sent by the complainant from
             the territorial jurisdiction of this Hon‟ble Court.
             Therefore, this Hon‟ble Court has territorial
             jurisdiction to take cognizance of the offence as
             committed by the accused".

4.    There is no gainsaying that mere issuance of notice from Delhi will

not attract jurisdiction of Delhi courts. 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 number of acts, i.e., (i) drawing of the cheque (ii)

presentation of the cheque to the bank (iii) returning of cheque unpaid by

the drawee bank, (iv) giving notice in writing to the drawer of the cheque

demanding of the cheque amount, (v) failure of the drawer to make

payment within 15 days of the receipt of the notice. In case the five
 different acts were done in five difference locations, 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 another 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 have been done.

5.   In somewhat similar circumstances Supreme Court in Harman

Electronics (P) Ltd. & Anr. Vs. M/s. National Panasonic India Ltd. AIR

2009 SC 1168, held that Delhi Courts have no jurisdiction to try the

complaint under Section 138 of the Act merely because notice was issued

from Delhi. In the said case accused was based in Chandigarh. Cheque

was issued at Chandigarh; complainant had a branch at Chandigarh;

cheque was presented at Chandigarh. Only notice was issued from Delhi.

It was observed thus "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,

commission of an offence completes. Giving of notice, therefore, cannot

have any precedent over the service."
 6.    In Som Sugandh Industries Ltd. & Anr. II (2010) DLT (CRL.) 475, a

Single Judge of this Court has held that the notice shall be deemed to have

been given at the place where it is served upon the addressee and not at the

place from where it was dispatched. Mere sending of notice from Delhi at

the address of the accused outside Delhi does not confer the power to

Delhi Courts to try and entertain the case under Section 138 of the said

Act. Mere issuance of notice by petitioner from Delhi itself would not vest

jurisdiction in Delhi Courts. In Online IT Shoppe India Pvt. Ltd. & Ors.

vs. State & Anr. 2010 (1) JCC (NI) 27, also it was held that sending notice

from Delhi would not confer jurisdiction on Delhi courts.

7.    Accordingly, I am of the view that Delhi courts have no territorial

jurisdiction to try the present complaint. Complaint be returned to the

respondent to present it before the court of competent jurisdiction, within

two months.

8.    Petition is disposed of in the above terms.



                                                    A.K. PATHAK, J.

NOVEMBER 29, 2012 ga