Pawan Chawla vs State & Anr.
2014 Latest Caselaw 5240 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        CRL.M.C. 3956/2011 and Crl.M.A.18629/2011


    %                          Date of decision : 17th October, 2014

         PAWAN CHAWLA                                  ..... Petitioner
                 Through :           Mr. Ashutosh Jha, Adv.

                            versus

         STATE & ANR.                            ..... Respondents
                  Through :          Ms. Astha Tyagi, Adv. for
                                     respondent no.2 along with
                                     respondent no.2 in person.

         CORAM:
         HON'BLE MR. JUSTICE J.R. MIDHA

                             JUDGMENT

1. The petitioner has challenged the jurisdiction of the learned Trial Court to entertain and try the complaint under Section 138 of the Negotiable Instruments Act, 1881 relating to cheque no.000131 dated 3rd August, 2007 drawn on Kotak Mahindra Bank, Noida which was dishonoured upon presentation by respondent no.2 at Kotak Mahindra Bank, Gurgaon.

2. The complaint under Section 138 of the Negotiable Instruments Act was instituted by respondent no.2 on 4 th October, 2007 and vide order dated 5th October, 2007, the learned Metropolitan Magistrate issued summons to the petitioner, returnable on 3rd March, 2008.

3. The petitioner challenged the summoning order dated 5th October, 2007 in revision bearing No.105/2011. However, the same was withdrawn on 29th July, 2011 with liberty to approach the Trial Court. The petitioner thereafter filed an application before the Trial Court which was dismissed vide order dated 2nd August, 2011.

4. The petitioner challenged the summoning order dated 5th October, 2007 as well as the order dated 2nd August, 2011 in revision bearing Crl. Rev. No.31/2011 which was dismissed by the Sessions Court vide order dated 20th October, 2011.

5. The short question involved in this petition is whether the Delhi Court has jurisdiction to entertain and try the complaint of respondent no.2 under Section 138 of the Negotiable Instruments Act in respect of a cheque drawn on a Bank at Noida and deposited by respondent no.2 in his Bank at Gurgaon. Respondent no.2 claims the jurisdiction of Delhi Court on the ground that the legal notice was issued from Delhi.

6. The law on this issue has been now set at rest by the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr., (2014) 9 SCALE 97 in which the Supreme Court held that the complaint under Section 138 of the Negotiable Instruments Act can be instituted before the Court within whose jurisdiction the cheque is dishonoured. In the present case, the dishonour of the cheque has taken place at Noida and therefore, the complaint under Section 138 of the Negotiable Act can be tried at Noida Courts alone.

7. Learned counsel for respondent no.2 has referred to para 20 of Dashrath Rupsingh Rathod (supra) in which the Supreme Court held that the cases in which the recording of the evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, will continue at the place where they are pending. The question therefore arises is whether the recording of evidence has commenced in the present case.

8. The Trial Court record has been perused. On 20 th May, 2011, the notice under Section 251 Cr.P.C. was framed by the learned Metropolitan Magistrate to which the petitioner pleaded not guilty and specifically raised the defence that the Court has no jurisdiction to entertain and try the complaint. The appellant thereafter filed the revision petition bearing Crl. Rev. Pet.105/2011 before the Sessions Court which was dismissed as withdrawn on 29th July, 2011with liberty to approach the Trial Court. The petitioner filed the application before the learned Metropolitan Magistrate on 2nd August, 2011 which was dismissed on the same day. The petitioner thereafter filed Crl. Rev. No. 31/2011 which was dismissed on 20th October, 2011.This petition was filed on 22nd November, 2011 and vide order dated 30th November, 2011, the notice was issued to respondent no.2 and the proceedings before the learned Trial Court were stayed by this Court. The interim order is continuing till date and the proceedings continue to be stayed.

9. On careful consideration of the record of the Trial Court, this Court is of the view that the recording of the evidence has not

commenced as yet and therefore, this case is liable to be returned back to Respondent no.2 in terms of Dashrath Rupsingh Rathod (supra) as Delhi Courts have no jurisdiction to entertain and try the complaint in respect of the cheque dishonoured at Noida.

10. For the reasons stated above, the petition is allowed. The impugned orders dated 5th October, 2007 and 2nd August, 2011 passed by the learned Metropolitan Magistrate as well as the order dated 20th October, 2011 passed by the learned Sessions Judge in Rev.Pet.No.31/2011 are set aside. The learned Metropolitan Magistrate shall return the complaint to respondent no.2 for being filed before the proper Court in terms of the principles laid down by the Supreme Court in Dashrath Rupsingh Rathod (supra).

 OCTOBER 17, 2014                                  J.R. MIDHA, J.
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