Delhi High Court
M/S Shree Laxmi Trading ... vs M/S Pec Ltd. on 29 May, 2015
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 29th May, 2015
+ CRL.M.C. NO.1509/2015 & CRL.M.A. NOS. 5553/2015
M/S SHREE LAXMI TRADING CORPORATION & ORS.
..... Petitioners
Through Ms.Shanta Devi Raman, Adv. with
Mr. Garud M.V., Adv
versus
M/S PEC LTD. ..... Respondent
Through None
CRL.M.C. NO.1949/2015 & CRL.M.A. NOS.6961/2015
M/S SHREE LAXMI TRADING CORPORATION & ORS.
..... Petitioners
Through Ms.Shanta Devi Raman, Adv. with
Mr. Garud M.V., Adv
versus
M/S PEC LTD. ..... Respondent
Through None
CRL.M.C. NO.1951/2015 & CRL.M.A. NOS.6965/2015
M/S SHREE LAXMI TRADING CORPORATION & ORS.
..... Petitioners
Through Ms.Shanta Devi Raman, Adv. with
Mr. Garud M.V., Adv
versus
M/S PEC LTD. ..... Respondent
Crl.MC No.1509/2015, Crl.MC No.1949/2015,Crl.MC No.1951/2015& Crl.MC No.1952/2015 Page 1 of 10
Through None
CRL.M.C. NO.1952/2015 & CRL.M.A. NOS.6967/2015
M/S SHREE LAXMI TRADING CORPORATION & ORS.
..... Petitioners
Through Ms.Shanta Devi Raman, Adv. with
Mr. Garud M.V., Adv
versus
M/S PEC LTD. ..... Respondent
Through None
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By way of this common order, I propose to decide the above
mentioned petitions filed under Section 482 Cr.P.C challenging inter
alia the impugned common order dated 24th March, 2015 passed by
Additional Sessions Judge, Special Judge (PC Act) (CBI)-6, Patiala
House Courts, New Delhi in Criminal Revision Nos. 6/2015, 11/2015,
10/2015,9/2015 upholding the order dated 29th October, 2014 passed
by Civil Judge-01/ MM, Patiala House Courts, New Delhi in
Complaint Case Nos. 16/2013 and 78/2013, 261/2013, 17/2013,
41/2013 whereby the prayer of the petitioners for returning the
Complaint Cases was rejected in view of the judgment passed by the
Supreme Court in Dashrat Rupsingh Rathod Vs. State of
Maharashtra & Anr reported in 2014 (9) SCC129.
2. Brief facts of the case are that the petitioners were summoned
for the offence punishable under Section 138 read with Section 142
of The Negotiable Instruments Act, 1881 (hereinafter referred to as
the "Act'). Thereafter, notices under Section 251 Cr.P.C were served
upon the petitioners. They pleaded not guilty and claimed trial.
Thereafter the matter was posted for cross examination of
CW1/complainant's witnesses. Many adjournments were obtained for
the purposes of cross examination. The question of territorial
jurisdiction was raised by the petitioners immediately when the
judgment of Dashrath Rupsingh Rathod (supra) was rendered by
the Supreme Court. The main contentions of the petitioners are that
the drawee bank is situated in Mumbai and also the stage of
recording of evidence under Section 145 (2) of the Act has yet not
commenced, therefore the complaint is liable to be returned to the
complainant for filing in the Court who has competent jurisdiction to
try the same.
3. The trial court rejected the plea of the petitioners by order dated
29th November, 2014. The said order was challenged by the
petitioners on filing of Revision Petitions on the grounds that
Metropolitan Magistrate did not consider the legal position in a proper
manner and the same was incorrectly passed without appreciation of
law and facts.
4. The revision petitions filed by the petitioners were dismissed by
a detailed order passed on 24th March, 2015 by a common judgment
and the same has been challenged by the petitioners before this
Court in the present petitions.
5. As already mentioned, the argument of the petitioners is that
the stage of Section 145 (2) of the Act, has not arrived in the present
proceedings and therefore, the complaint needs to be returned. The
reply of the respondent before the trial court was that the matter has
already reached the stage of Section 145 (2) of the Act and therefore,
the complaints are not liable to be returned on the issue of the
territorial jurisdiction and the matter has to be proceeded further
under these circumstances.
6. It has to be examined in view of the orders passed from time to
time as to whether the stage of Section 145 (2) of the Act, was
arrived in the present proceedings. As per record and observation by
the trial court, it is apparent that the stage had arrived as early as on
19th January, 2013. Here it is necessary to refer the order passed on
20th December, 2013 by the trial court which reads as under:-
"Exemption application moved on behalf of accused no.2.
Accused no.2 is exempted for today only. Ld. Advocate for
accused persons has filed a print out of the order dated
05.12.2013 passed by Hon'ble High Court of Delhi continuing
the interim order passed by it. It is jointly submitted by the
parties that in all the complaints, the case is listed for
recording of CE. Ld. Advocate for the complainant has
submitted that the complainant is adopting pre summoning
evidence in post summoning evidence. It is jointly submitted
that there is no stay in these complaints by the higher courts.
Put up for cross examination of CW 1 on 07.02.2014."
7. Many adjournments for the purpose of cross-examination were
taken by the petitioners. The exemptions for personal appearance of
accused were also granted to the petitioners. It appears from the
order sheets that even last and final opportunities for cross-
examination of CW-1 were granted. The judgment by the Supreme
Court was delivered on 1st August, 2014 and on the next date the
question of territorial jurisdiction was raised on behalf of the
petitioners.
8. From the scheme of Sections 251 to 255 Cr.P.C., it is apparent
that once notice under Section 251 Cr.P.C. has been framed and the
accused pleads not guilty, the matter goes to the stage of recording
of evidence under Section 254 Cr.P.C. There is no other intermediate
stage between framing of notice and recording of evidence.
9. As far as a complaint under Section 138 of the Act is
concerned, Section 143 of the Act provides that all offences under
the said Chapter are to be tried in accordance with the provisions of
the Sections 262 to 265 Cr.P.C., which provides for summary trials.
Section 145 (1) of the Act provides for reception of evidence on
affidavit and 145 (2) of the Act provides an opportunity to the accused
to move an application for cross examination of the complainant or
his witnesses. Even under such procedure, there is no intermediate
stage between framing of notice under Section 251 Cr.P.C. and
recording of evidence, either under Section 145(1) or (2) of the Act,
Once notice under Section 251 Cr.P.C. stood framed, a complaint
under Section 138 of the Act has reached the stage of recording of
evidence.
10. The only manner in which a meaningful interpretation can be
given to the directions of the Supreme Court would be that those
cases in which notice under Section 251 Cr.P.C. stood framed would
have to be retained in respective Courts where they have originally
been filed as they have reached the stage of recording of evidence.
11. In the case of Dashrath Rupsingh Rathod (supra), Supreme
Court in paras no.19 and 20 of the said judgment has held as under:-
"19. The interpretation of Section 138 of the NI Act which
commends itself to us is that the offence contemplated
therein stands committed on the dishonour of the cheque,
and accordingly the JMFC at, the place, where this occurs, is
ordinarily where the Complaint must be filed, entertained and
tried. The cognizance of the crime by the JMFC at that place
however, can be taken only when the concomitants or
constituents, contemplated by the Section concatenate with
each other. We clarity that the place of the issuance or
delivery of the statutory notice or where the Complainant
chooses to present the cheque for encashment by his bank
are not relevant for the purposes of territorial jurisdiction of
the Complaints even though non-compliance thereof will
inexorably lead to the dismissal of the complaint. It cannot be
contested that considerable confusion prevails on the
interpretation of Section 138 in particular and Chapter XVII in
general of the Nl Act. The vindication of this view is duly
manifested by the decisions and conclusion arrived by the
High Courts even in the few cases that we shall decide by
this judgment. We clarify that the Complainant is statutorily
bound to comply with Section 177 etc. of the CrPC and
therefore the place or situs where the Section 138 Complaint
is to be filed is not of his choosing. The territorial jurisdiction
is restricted to the Court within whose local jurisdiction the
offence was committed, which in the present context is where
the cheque is dishonoured by the bank on which it is drawn.
20. 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 on
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
considerable 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 beep 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
Complaint cases where proceedings have gone to the stage
of Section 145(2) or 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
presently pending. All other Complaints (obviously including
these where the accused/ respondent has not been properly
served) shall be returned to the Complainant for filing in the
proper Court, in consonance without 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." (emphasis supplied).
12. It is settled law that a judgment has to be read in the context in
which it was rendered. The same was reiterated by the Supreme
Court in the cases of State of MP vs. Narmada Bachao Andolan
(2011) 7 SCC 639, JIK Industries Ltd. vs. Amarlal V. Jumani 2012
(3) SCC 255 and Voltas Ltd. vs. Rolta India Ltd. 2014 (4) SCC 516.
13. The judgment of the Supreme Court has taken care about the
pending matters and depending upon the stage of the matters. The
Supreme Court has drawn the distinction of pending matters into two
categories as per the stage reached. The purpose of division of
pending matters in such a manner was to ensure that matters that
had reached a particular stage would not have to be instituted afresh
so as to save time and costs of the parties. Any other interpretation to
the contrary would not be permissible. Though many orders have
been passed by this Court as well as by other High Courts by giving
their interpretation. In many orders contrary view is taken. However,
this Court is of the view that after rendering the judgment in the case
of Dashrath Rupsingh (supra) an interpretation if required has to be
drawn by reading the said judgment itself.
14. Delhi High Court in the case of Cisco Systems Capital (India)
Pvt. Ltd vs. New Delhi Tele Tech Pvt Ltd & Ors., 2015 (147) DRJ
306 elaborated on this question of law and held as under:
"18. There may be three situations when notice in terms of
Section 251 of Cr.P.C is served upon an accused;
(i) After framing of notice in terms of Section 251 of
Cr.P.C the matter is fixed for DE as no application as
envisaged in Section 145(2) of the Act is moved by the
accused;
(ii) After framing of notice in terms of Section 251 of
Cr.P.C., an application under Section 145(2) of the Act is
moved by an accused but it is yet to be allowed by a
Magistrate; and
(iii) After serving notice under Section 251 Cr.P.C., the
application moved under Section 145(2) of the Act by an
accused for cross examination of the complainant, has been
allowed by the Magistrate.
19. The question arises as to whether trial would be said
to have commenced in all the aforesaid three situations or
not. The answer has to be in negative in first two situations. It
is only in the third situation when the application under
Section 145(2) of the Act has been allowed by the Magistrate
only then trial would be said to have commenced within the
meaning of Section 145(2) of the Act."
15. The judgment of Dashrath Rupsingh Rathod (supra)
mandates that the cases which were prior to the stage of Section 145
(2) of the Act only were ordered to be transferred to the Courts
having jurisdiction in terms of findings of above mentioned judgment.
It is evident from the judgment of the Supreme Court who bifurcated
pending matters into two categories, it was directed 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"
The category of Complaint cases where proceedings have
gone to the stage of Section 145(2) or beyond shall be
deemed to have been transferred from the Court ordinarily
possessing territorial; jurisdiction, to the Court where it is
presently pending"
"All other Complaints (obviously including these where the
accused/ respondent has not been properly served) shall be
returned to the Complainant for filing in the proper Court..."
16. Counsel for the petitioners has admitted the fact that the
respondent has admittedly adopted pre-summoning evidence as post
summoning evidence. The said statement was made by the
respondent on 20th December, 2013 and the matters were put up for
cross-examination on behalf of the petitioners for 7th February, 2014.
It shows that orders are passed for taking evidence which has
already been adduced in view of statement made by the counsel
before the Court on 20th December, 2013.
17. The interpretation now given by the petitioners is not
acceptable when the trial has already commenced and the matters
were adjourned at the request of the petitioners. If such an approach
is adopted, it would be considered as non-est approach. The
petitioners' cheques worth crores of rupees have been dishonoured.
They are only interested to raise the plea of jurisdiction. There is no
positive response from the petitioners' side as to why they are not
claiming their liabilities. None of the decisions of the counsel would
help the case of the petitioners, if the judgment of Supreme Court is
read in a meaningful manner. In fact the said decision itself goes
against the petitioners in view of admitted facts of the present
matters.
18. For the reasons mentioned above, I do not find any infirmity in
the impugned orders. The present petitions are dismissed.
(MANMOHAN SINGH)
JUDGE
MAY 29, 2015
