United Teleservices Pvt. Ltd. vs Celestial Tech Vates Ltd.
2014 Latest Caselaw 4353 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 11th September, 2014

+       CRL. M.C. No.4021/2014

UNITED TELESERVICES PVT. LTD.                ..... Petitioner
                  Through: Mr. K. Venkatraman with Mr.
                            Kaushik Gole, Advocates.

                         versus

CELESTIAL TECH VATES LTD.                     ..... Respondent
             Through: Mr. P.D. Gupta with Mr. Abhishek
                       Gupta, Advocates.

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. This is a petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as „Cr.P.C.‟) against order dated 26.07.2014 passed by learned Additional Sessions Judge, Patiala House Courts, New Delhi whereby Criminal Revision bearing No.84/14 was dismissed.

2. In short the facts of the case are that the respondent herein filed a complaint against the petitioner and its Directors for the offences punishable under Sections 138/141/142 of Negotiable Instruments Act, 1881 (for short, „NI Act‟). Learned Metropolitan Magistrate vide order dated 01.06.2013 issued summons to the petitioner. Thereafter, on 21.08.2013 notice under Section 251 Cr.P.C. was given to the petitioner and other co-accused persons and the plea of the accused was recorded. Vide order dated 21.08.2013 the trial court observed that perusal of the

plea of the accused reveals that he has put forth a plausible defence and accordingly, matter was fixed for cross-examination of the complainant‟s witness.

3. Thereafter, petitioner moved four applications, i.e., (i) application under Section 177 Cr.P.C. praying for dismissal of the complaint for want of territorial jurisdiction; (ii) application seeking directions to produce the invoices on the basis of which the complainant has claimed the amount;

(iii) application under Section 205 read with Section 317 Cr.P.C. seeking permanent exemption to the accused; and (iv) application under Section 227 Cr.P.C. on behalf of accused Nos.3 & 4 for discharge. Vide order dated 31.05.2014, application under Section 205 read with Section 317 Cr.P.C. was allowed and the other three applications filed on behalf of the petitioner were dismissed.

4. Against the said order, the petitioner preferred Criminal Revision No.84/14, which was dismissed by learned Additional Sessions Judge vide impugned order dated 26.07.2014. Aggrieved by the said order, the petitioner has preferred the present petition.

5. At the outset, it is mentioned that counsel for petitioner has pressed only application under Section 177 of Cr.P.C.

6. Learned counsel for the petitioner submits that the cheque was presented by respondent at Kolkata Branch and the cheque was dishonoured by Kolkata Branch and only the Kolkata Court has jurisdiction to entertain and try the present complaint.

7. Per contra, learned counsel for the respondent contends that the cheque in question was issued and delivered by the petitioner to the

respondent at Delhi, deposited by the respondent with its banker at New Delhi and the same was received back as dishonoured at Parliament Street, New Delhi and, therefore, the Delhi Courts have jurisdiction to entertain and try the complaint.

8. I have given my thoughtful consideration to the submissions of learned counsel for the petitioner as well as learned counsel for the respondent.

9. The controversy has been set at rest by Hon‟ble Supreme Court of India in the case of „Dashrath Rupsingh Rathod vs. State of Maharashtra & Anr.‟, 2014 VIII AD (SC) 293. In the said case, the Hon‟ble Supreme Court of India examined at length the principles underlined in Section 138 of the Negotiable Instrument Act, 1881 and held that a unilateral act of presentation of cheque anywhere in the country or issue of notice of dishonour from a place chosen by the complainant does not by itself confer jurisdiction upon the Court from within whose jurisdiction such presentation is made or notice issued. The relevant portion of para 13 of the said judgment is as under: -

"13. .........We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts panning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to Complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/ respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on

considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, will proceeding continue at that place.........."

10. At this juncture, it is relevant to re-produce Section 145 of Negotiable Instruments Act, 1881, which reads as under: -

"145. Evidence on affidavit:

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."

11. A bare reading of aforesaid provisions makes it clear that the legislature has allowed the complainant to give his evidence by way of an affidavit during the course of trial in respect of offence under Section 138 of NI Act by virtue of sub-section (1) of Section 145 of NI Act. Sub- section (2) of Section 145 of NI Act provides that the Court may, on the application filed by the accused, summon the complainant for his cross- examination as to the effect contained therein.

12. It is needless to mention here that the Negotiable Instruments Act is a special legislation and the provisions contained in special statute have overriding effect over the provisions contained in general statute. Section 143 was introduced in the Negotiable Instrument (Amendment and

Miscellaneous Provisions) Act, 2002 which came into force w. e. f. 06.02.2003. According to the said provision the offence under Section 138 of NI Act is to be tried summarily.

13. In case „Indian Bank Association and Ors. vs. Union of India and Ors.‟, 2014 (5) SCALE 323, it was observed: -

"21. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given: -

DIRECTIONS:

(1) Metropolitan Magistrate/ Judicial Magistrate (MM/JM) on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e- mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons received back unserved, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4) Court should direct the accused when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-calling witness for cross-examination. (5) The Court concerned must ensure that examination-

in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court."

14. In view of the aforesaid directions of the Hon‟ble Supreme Court of India in Indian Bank Association's case (supra) there is no scope of doubt that after serving notice in terms of Section 251 of Cr.P.C. upon an accused, the Magistrate shall fix the case for defence evidence, unless an application is made by the accused under Section 145(2) of NI Act for recalling a witness for cross-examination. At the same time, it has been further directed that the concerned Court must ensure that examination-

in-chief and re-examination of complainant must be conducted within three months of filing of the case.

15. In the instant case, the respondent filed a complaint against the petitioner. Vide order dated 01.06.2013 the petitioner was summoned for the offence under Section 138 of NI Act. The petitioner entered appearance. Thereafter, notice under Section 251 Cr.P.C. was framed and the plea of defence was recorded on 21.08.2013. The trial court on perusal of plea of the accused was satisfied with a plausible defence and,

therefore, the case was adjourned for cross-examination of the complainant. The order dated 31.05.2014 passed by learned trial court indicates that the request to cross-examine the complainant in terms of Section 145(2) of NI Act was allowed. Thereafter, the petitioner moved an application under Section 177 of Cr.P.C. That being so, I do not find any illegality or infirmity in the approach adopted by learned trial court. Consequently, the present petition is devoid of any merits and the same is hereby dismissed.

16. With the aforesaid observations, the petition stands disposed of.

Crl. M.A. No.13793/2014

The application is dismissed as infructuous.

(VED PRAKASH VAISH) JUDGE SEPTEMBER 11, 2014 hs