Delhi High Court
Devendra N Kamat vs Modelma Exports Ltd on 23 March, 2015
Author: Sunil Gaur
$~26, 2, 13, 14, 41-44, 47, 48, 51, 52, 62, 70-74, 33-35, 30, 1, 23 & 38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd March, 2015
+ (i) CRL.M.C. 700/2012 & Crl.M.A.No.2476/2012
NEERAV J. SHAH & ANR. ..... Petitioners
Through: Mr. R.K.Sachdeva, Advocate
versus
STATE & ANR. .... Respondents
Through: Mr.Karan Singh, Additional Public
Prosecutor for respondent-State
with SI Indrapal Singh, CAW Cell
Mr. Tarun K. Bedi, Advocate for
Respondent No.2
+ (ii) CRL.M.C. 5435/2014 & Crl.M.A.No.18534/2014
+ (iii) CRL.M.C. 5433/2014 & Crl.M.A.No.18530/2014
+ (iv) CRL.M.C. 5437/2014 & Crl.M.A.No.18538/2014
+ (v) CRL.M.C. 789/2015 & Crl.M.A.No.2979/2015
+ (vi) CRL.M.C. 790/2015 & Crl.M.A.No.2982/2015
+ (vii) CRL.M.C. 791/2015 & Crl.M.A.No.2984/2015
+ (viii) CRL.M.C. 792/2015 & Crl.M.A.No.2986/2015
+ (ix) CRL.M.C. 795/2015 & Crl.M.A.No.2992/2015
+ (x) CRL.M.C. 796/2015 & Crl.M.A.No.2994/2015
+ (xi) CRL.M.C. 934/2015 & Crl.M.A.No.3495/2015
+ (xii) CRL.M.C. 935/2015 & Crl.M.A.No.3497/2015
IFCI FACTORS LIMITED ..... Petitioner
Through: Mr. Mandeep Singh Vinaik and
Mr. Deepak Bashta, Advocates
versus
STATE OF NCT OF DELHI & ORS .... Respondents
Through: Mr.Karan Singh, Additional Public
Prosecutor for respondent-State
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 1
934, 935, 1138, 1153-1157 of 2015, 4974/14, 613/15
4857/14, 4109-4111/14 & 267/15
Mr. Kailash Pandey & Mr. Ranjeet
Singh, Advocate for Respondents
No.2 to 6 in Crl.M.C.Nos.789-792
& 795 of 2015
Mr. Aman Varma, Advocate for
Respondents No.2 to 6 in
Crl.M.C.No.934/2015
+ (xiii) CRL.M.C. 1138/2015 & Crl.M.A.Nos.4217-4219/2015
+ (xiiv) CRL.M.C. 1153/2015 & Crl.M.A.Nos.4249-4251/2015
+ (xv) CRL.M.C. 1154/2015 & Crl.M.A.Nos.4252-4254/2015
+ (xvi) CRL.M.C. 1155/2015 & Crl.M.A.Nos.4255-4257/2015
+ (xvii) CRL.M.C. 1156/2015 & Crl.M.A.Nos.4258-4260/2015
+ (xviii) CRL.M.C. 1157/2015 & Crl.M.A.Nos.4261-4263/2015
AHSHAN ALAM & ANR .....Petitioners
Through: Mr. S.A. Khan, Ms. Sophiya Salim
Mr. Mirza Rizwan Baij and Ms.
Archna Rani, Advocates
versus
THE STATE (GOVT OF NCT OF DELHI) & ANR ..Respondents
Through: Mr.Karan Singh, Additional Public
Prosecutor for respondent-State
+ (i) (xix) CRL.M.C. 4974/2014 & Crl.M.As.17049-50/2014
M/S SHARMA FOUNDATION ..... Petitioner
Through: Mr. Mukesh M. Goel, Advocate
versus
B B JOSHI ..... Respondent
Through: Nemo
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 2
934, 935, 1138, 1153-1157 of 2015, 4974/14, 613/15
4857/14, 4109-4111/14 & 267/15
+ (xx) CRL.M.C. 613/2015 & Crl.M.As.2406-07/2014
KHIYA RAM KHILWANI ..... Petitioner
Through: Mr. Mukesh M. Goel, Advocate
versus
RAVINDER MACHHAN ..... Respondent
Through: Nemo
+ (xxi) CRL.M.C. 4857/2014 & Crl.M.As.16662/2014
SANJAY SHARMA ..... Petitioner
Through: Mr. Mukesh M. Goel, Advocate
versus
V K MISHRA ..... Respondent
Through: Nemo
+ (xxii) CRL.M.C. 4109/2014 & Crl.M.As.14105/14, 14543/14
DEVENDRA N KAMAT ..... Petitioner
Through: Mr.Virender Goswami, Mr. Soni
Singh and Mr. Subham Aggarwal,
Advocates
versus
MODELAMA EXPORTS LTD ..... Respondent
Through: Mr. Rajat Wadhwa & Mr.
Amritansh Batheja, Advocates
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 3
934, 935, 1138, 1153-1157 of 2015, 4974/14, 613/15
4857/14, 4109-4111/14 & 267/15
+ (xxiii) CRL.M.C. 4110/2014 & Crl.M.As.14545/14, 14107/14
BALCHANDRA S BAKHLE ..... Petitioner
Through: Mr. Dayan Krishnan, Sr. Advocate
with Mr. Virender Goswami, Ms.
Soni Singh, Ms. Swati Goswami &
Mr. Shubham Aggarwal,
Advocates
versus
MODELAMA EXPORTS LTD ..... Respondent
Through: Mr. Rajat Wadhwa & Mr.
Amritansh Batheja, Advocates
+ (xxiv) CRL.M.C. 4111/2014 & Crl.M.As.14109/14, 14544/14
RASHID KHAN ..... Petitioner
Through: Mr.Virender Goswami, Mr. Soni
Singh and Mr. Subham Aggarwal,
Advocates
versus
MODELAMA EXPORTS LTD ..... Respondent
Through: Mr. Rajat Wadhwa & Mr.
Amritansh Batheja, Advocates
+ (xxv) CRL.M.C. 267/2015 & Crl.M.A.No.1017/2015
ANIL D KANERIA & ANR ..... Petitioners
Through: Mr. Atul Nanda, Sr. Advocate with
Mr. Deepak Mishra, Advocate
versus
M/S ORIENT BELL LIMITED ..... Respondent
Through: Mr. R.B.Singhal, Sr. Advocate
with Mr. Anshuj Dhingra & Mr.
Janander Mahajan, Advocates
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 4
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CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
%
With the consent of learned counsel for parties, the above-
captioned petitions were heard together as the question raised in
these petitions is similar and by this common judgment, these
petitions are being disposed of.
In the above-captioned petitions, interpretation of Section
145(2) of Negotiable Instruments Act, 1881 is the question which
falls for consideration. Learned Senior Counsel for petitioner-
Balchandra [in Crl.M.C.No.4110/2014] drew the attention of this
Court to trial court's order of 3rd January, 2013 whereby Notice
under Section 251 Cr.P.C. has been framed and application of
accused under Section 145(2) of Negotiable Instruments Act, 1881
was allowed and the case was adjourned for cross-examination of
complainant for 11th March, 2013. On the aforesaid date,
complainant had placed on record additional documents and the
trial court had adjourned the case for 22nd April, 2013 for cross-
examination of complainant. However, it is evident from the order
of 22nd April, 2013 of trial court that on that day application for
transfer of case was filed by accused for transfer of the case to the
court of competent territorial jurisdiction. The said application has
been rejected by trial court vide order of 22nd April, 2013 on the
ground that accused has been summoned to face trial and it was not
in its power to review its own order.
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 5
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Aforesaid order of trial court was assailed by petitioner-
Balchandra by way of revision petition which stands dismissed
vide order of 27th August, 2013. To assail the orders of courts
below learned counsel for petitioner-Balchandra relied upon Apex
Court decision in Dashrath Rupsingh Rathod v. State of
Maharashtra (2014) 9 SCC 129 wherein it has been held as under:-
"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 spanning 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 his will
continue to bear on alleged respondent-accused 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 considerably 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. To
clarify, regardless of whether evidence has been led before
the Magistrate at the pre-summoning stage, either by
affidavit or by oral statement, the complaint will be
maintainable only at the place where the cheque stands
dishonoured. To obviate and eradicate any legal
complications, the category of complaints cases where
proceedings have gone to the stage of Section 145(2) or
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 6
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beyond shall be deemed to have been transferred by us
from the court ordinarily possessing territorial
jurisdiction, as now clarified, to the court where it is
present pending. All other complaints (obviously including
those where the respondent-accused has not been properly
served) shall be returned to the complainant for filing in
the proper court, in consonance with our exposition of the
law. If such complaints are filed/refiled within thirty days
of their return, they shall be deemed to have been filed
within the time prescribed by law, unless the initial or
prior filing was itself time-barred."
Reliance was also placed upon later decision of Supreme
Court in Shivgiri Associates v. Metso Mineral (India) Pvt. Ltd.
(2014) 12 SCC 366 and judgment of Bombay High Court in Peter
Devid Xavier Pinto v. Dinesh M. Ranawat & Anr. 2014 SCC
Online Bom. 1248 as well as judgment of this Court in Tr. P.(Crl.)
No.68/2014 titled HDFC Bank Ltd. v. Vardhman Precision Profiles
& Tubes P. Ltd. & Anr. decided on 24th September, 2014 to submit
that mere filing of evidence by way of affidavit by the complainant
would not save the proceedings from the operation of law because
recording of evidence had commenced as envisaged in Section
145(2) of the Negotiable Instruments Act, 1881. Learned senior
counsel also relied upon Apex Court's judgment in Mandvi
Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83
to substantiate the above stand. Thus, it was submitted on behalf
of petitioner-Balchandra that impugned order deserves to be
quashed and complaints of complainant deserve to be transferred to
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 7
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court of competent territorial jurisdiction. Learned counsel for
petitioners-Devender and Rashid Khan adopts the above
submissions.
Learned counsel for respondent-Modelama Exports Ltd.
supported the impugned order and submits that the stage under
Section 145(2) of Negotiable Instruments Act, 1881 is reached
when the application under Section 145(2) of Negotiable
Instruments Act, 1881 is allowed and the court permitted the
complainant to tender his chief-examination by way of an affidavit
and it has been so done. Attention of this Court was drawn to
Section 137 of Indian Evidence Act, 1872 to submit that
commencement of evidence began by filing of chief-examination
and thus, it is submitted that Apex Court in Dashrath Rupsingh
(supra) is quite clear that once the stage under Section 145(2) has
reached, then the case is not to be transferred.
In the 11 petitions filed by petitioner-IFCI Factors Limited,
Notice under Section 251 Cr.P.C. has not been framed and so by
relying upon Apex Court's decision in Dashrath Rupsingh (supra),
trial court has directed the return of petitioner-IFCI Factors
Limited's complaints to the court of competent territorial
jurisdiction. During the course of hearing, Mr. Mandeep Singh
Vinayak, learned counsel for petitioner-IFCI Factors Limited had
relied upon order of 25th August, 2014 passed by High Court at
Bombay in Crl.W.P.No.2362/2014 Ramanbhai Mathurbhai Patel
v. State of Maharashtra & Anr. decided on 25th August, 2014
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 8
934, 935, 1138, 1153-1157 of 2015, 4974/14, 613/15
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wherein Apex Court's decision in Dashrath Rupsingh (supra) has
been noticed but on the ground of cheques being at par, the
complaints were allowed to be proceeded with by observing that
the cheques are made at par for the convenience of the creditor. It
was pointed out by Mr. Mandeep Singh Vinayak, Advocate that
Special Leave Petition against Ramanbhai (supra) has been
dismissed by the Apex Court and the decision of a Coordinate
Bench of this Court in Crl.M.C.No.4407/2014 M/s Goyal MG
Gases Pvt. Ltd. v. State & Ors. rendered on 16th December, 2014
has been stayed by the Apex Court vide order of 13 th January, 2015
and so, the outcome of the decision of M/s Goyal MG Gases Pvt.
Ltd. from the Apex Court ought to be awaited.
In above-captioned six petitions filed by petitioners-Ahshan
Alam & Anr. the respondent-complaint has been ordered to be tried
as petitioners' applications under Section 145(2) of Negotiable
Instruments Act, 1881 already stand allowed. However, trial court
in the impugned order has noted that cross-examination of
respondent-complainant has not yet begun but the stage under
Section 145(2) of Negotiable Instruments Act, 1881 has reached.
To assail the impugned order, Mr. S.A.Khan, learned counsel for
petitioners-Ahshan Alam & Anr. had placed reliance upon decision
of High Court of Bombay in Peacock Industries Limited & Ors. v.
Budhrani Finance Ltd. & Anr. IV (2006) BC 302.
Mr. Mukesh M. Goel, learned counsel for petitioners in
[Crl.M.C.No.4974/2014, Crl.C.No.613/2015 & Crl.M.C.No.
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 9
934, 935, 1138, 1153-1157 of 2015, 4974/14, 613/15
4857/14, 4109-4111/14 & 267/15
4857/2014] had assailed the impugned order vide which the
complaints are directed to be returned for want of territorial
jurisdiction as the cheques in question were drawn at Dehradun
(Uttarakhand), Rohru (H.P.) and Jagdishpur (U.P.) respectively. In
the three complaints filed, Notice under Section 251 Cr.P.C. was
not framed and so by applying the dictum of Apex Court in
Dashrath Rupsingh (supra), the complaints have been returned.
Learned counsel for petitioners had urged that the cheques in
question were payable at par and were dishonoured in Delhi, so the
Delhi Courts have the jurisdiction.
Mr. Atul Nanda learned Sr.Counsel for petitioners- Anil D.
Kaneria & Ors. [Crl.M.C.No.267/2015] had submitted that
petitioners' application under Section 145(2) of Negotiable
Instruments Act, 1881 has been allowed on 24th September, 2014
i.e. after the Apex Court's decision in Dashrath Rupsingh (supra)
rendered on 1st August, 2014 but cross-examination of respondent-
complainant had not yet begun and so by applying the dictum of
Apex Court in Dashrath Rupsingh (supra), the complaint in
question ought to be returned for being tried by court of competent
territorial jurisdiction. Mr.R.B.Singhal, learned Sr.Counsel for
respondent-M/s Orient Bell Limited supported the impugned order
and had submitted that in view of Apex Court's decision in
Dashrath Rupsingh (supra), the stage under Section 145(2)
Negotiable Instruments Act, 1881 had reached and so Delhi Courts
have the territorial jurisdiction to try the complaint in question.
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 10
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In Crl.M.C.No.700/2012 filed by petitioner-Neerav J. Shah
& Anr., it was pointed out by learned counsel that although
application under Section 145 (2) of Negotiable Instruments Act,
1881 was allowed in the year 2011, but till date no cross-
examination of respondent-complainant has taken place and so the
Delhi Courts lack the territorial jurisdiction to try the complaint in
question as the cheque in question was dishonoured by petitioner's
bank i.e. Union Bank of India in Mumbai.
The question of 'cheques at par' raised in petitions by
petitioners-IFCI Factors Ltd., M/s Sharma Foundation, Khiya Ram
Khilwani & Sanjay Sharma was not subject matter of consideration
in Dashrath Rupsingh (supra), which conclusively decides
question of territorial jurisdiction and so this question is left open.
Upon having heard learned counsel for parties and on
perusal of the impugned orders in above-captioned petitions,
material on record and the decisions cited, this Court is of the
considered view that return of complaints in the 11 petitions filed
by IFCI Factors Limited does not suffer from any palpable error as
Notice under Section 251 Cr.P.C has not been framed in these
complaint cases. Consequentially, the above-captioned 11
petitions filed by IFCI Factors Limited are hereby dismissed while
not commenting upon merits of the case.
In the three petitions filed by petitioners-M/s Sharma
Foundation, Khiya Ram Khilwani & Sanjay Sharma, even Notice
under Section 251 Cr.P.C. has not been framed and so, by applying
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the dictum of Apex Court in Dashrath Rupsingh (supra), the
impugned orders of 12th September, 2014, 8th December, 2014 and
12th September, 2014, vide which the complainants in question
were directed to be returned are sustained and these petitions
[Crl.M.C.No.4974/2014, Crl.M.C.No.613/2015 & Crl.M.C.No.
4857/2014] are dismissed.
In rest of the above-captioned petitions, applications under
Section 145(2) of Negotiable Instruments Act, 1881 have been
allowed but the cross-examination of respondent-complainant has
not yet taken place. During the course of hearing, attention of this
Court was drawn to an order of a Coordinate Bench of this Court in
Naveen Malhotra v. State (Govt. of NCT of Delhi) & Anr. 2015
SCC Online Del.7613 and decision of a Coordinate Bench of this
Court in CISCO Systems Capital (India) Pvt. Ltd. v. New Delhi
Tele Tech Pvt. Ltd. & Ors. 2015 SCC Online Del.6535, wherein
Apex Court decision in Dashrath Rupsingh (supra) has been
interpreted to hold that once application under Section 145(2) of
Negotiable Instruments Act, 1881 is allowed then such complaint
reached a stage, when the complaint is to be tried and not returned
for want of territorial jurisdiction. A bare reading of Section
145(2) of Negotiable Instruments Act, 1881 makes it clear that
mere allowing of application under Section 145(2) Negotiable
Instruments Act, 1881 is not sufficient and the complainant is
required to be summoned and examined. Thus, it becomes
abundantly clear that cross-examination of complainant in
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 12
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pursuance to allowing of application under Section 145(2)
Negotiable Instruments Act, 1881 is necessary to enable the Court
to retain the complaint under Section 138 of Negotiable
Instruments Act, 1881 in terms of Apex Court decision in Dashrath
Rupsingh (supra).
On careful perusal of afore-noted two decisions of this
Court, it becomes apparent that Apex Court decision rendered by
Hon'ble Mr. Justice T.S.Thakur and Hon'ble Mr. Justice Vikramjit
Sen in Shivgiri Associates (supra) was not brought to the notice of
the two Coordinate Benches of this Court, which had rendered the
decision in cases of CISCO Systems (supra) and Naveen Malhotra
(supra). The Apex Court's decision in Dashrath Rupsingh (supra)
is authored by Hon'ble Mr. Justice Vikramajit Sen, who is also
party to the later Apex Court decision in Shivgiri (supra), wherein
paragraph No.22 of Dashrath Rupsingh (supra) stands duly
explained. In Shivgiri (supra), it has been clearly held that
evidence post-summoning has not been recorded and so the
complaint under Section 138 of Negotiable Instruments Act, 1881
was directed to be transferred to the Court of competent territorial
jurisdiction.
In the face of latest Apex Court decision in Shivgiri (supra),
reliance placed upon decisions in Peter David Xavier Pinto v.
Dinesh M.Ranwat & Anr. 2014 SCC Online Bom 1248, New Delhi
Tele Tech Pvt. Ltd. v. M/s CISCO Systems Capital (India) Pvt. Ltd.
2015 SCC Online Del.6533, Radhey Shyam Garg v. Naresh Kumar
Crl.M.C.Nos. 700/12, 5435, 5433, 5437of 2014, 789-792, 795, 796 Page 13
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Gupta (2009) 13 SCC 201 and CISCO Systems Capital (India) Pvt.
Ltd. v. New Delhi Tele Tech. Pvt. Ltd. & Ors. 2015 SCC Online
Del 6535 is of no avail. Applying the dictum of Apex Court in
Dashrath Rupsingh (supra) which is reiterated in Shivgiri (supra),
it is held that the complaints in which cross examination in
pursuance to allowing of application under Section 145(2) of
Negotiable Instruments Act, 1881 has not commenced, shall stand
transferred to the court of competent territorial jurisdiction.
As regards petitions [Crl.M.C.No.4109/2014, Crl.M.C.No.
4110/2014 and Crl.M.C.No.4111/2014] filed by petitioners-
Devendra N Kamat, Balchandra S Bakhle and Rashid Khan, the
orders in these petitions are deferred as in Crl.M.C.No.3410/2014,
the question of joint trial, which will impact the decision in these
three petitions, is coming up for hearing before this Bench on 25 th
March, 2015. Thus, these three petitions are segregated and be
listed for orders on 26th March, 2015.
Consequentially, the above-captioned petitions filed by
petitioners-Neerav J. Shah, Anil D. Kaneria & Anr. and Ahsahan
Alam & Anr., and applications are allowed in the aforesaid terms.
(SUNIL GAUR)
Judge
MARCH 23, 2015
vn
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