Rahul Gupta vs State & Anr
2019 Latest Caselaw 5839 Del

$~14
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of decision: 21.11.2019
+      CRL.A. 367/2018
       RAHUL GUPTA                                       ..... Appellant
                          Through:     Mr. Varun Tyagi, Adv.

                          versus

       STATE & ANR                                      ..... Respondents
                          Through:     Mr.Panna Lal Sharma, APP for State

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

1. Vide the present appeal, the appellant seeks directions thereby

quashing and setting aside of the impugned order and judgment dated

23.08.2016 passed by the learned Metropolitan Magistrate, West Delhi in

Complaint Case No. 19715/2016 titled as 'Rahul Gupta vs. Gaurav Bhatia'

and consequently, direct the learned Metropolitan Magistrate to restore the

same on merit.

2. Brief facts of the case are that respondent No. 2 had availed a friendly

loan of ₹13,50,000/- in the month of September, 2013 from the appellant

and in discharge of his legal liability and to return the said amount, the

respondent No.2 had issued a cheque bearing No. 311606 dated 10.02.2014

for a sum of ₹13,50,000/- drawn on Andhra Pradesh Bank, Palam Vihar

Branch, Gurgaon in favour of the appellant. However, the said cheque when

presented by the appellant for encashment with his Banker - HDFC Bank

Ltd, New Delhi, was returned dishonoured by bank of Respondent No.2

with the endorsement "Insufficient Funds" and the information regarding

dishonour of cheque was received by the appellant by way of 'cheque return

memo' dated 12.02.2014. Thereafter, appellant had also sent a legal notice

dated 28.02.2014 to respondent No.2 demanding the amount of the cheque

and loan. However, instead of returning the amount and discharging his

liability, respondent No. 2 had sent a reply dated 13.03.2014, whereby he

had raised baseless and frivolous issues only to avoid his liability and the

amount was not returned in favour of the appellant. Hence, a complaint

under section 138 of the Negotiable Instruments Act was filed by the

appellant against the respondent No.2 being CC No. 7743/1/2014 before the

Court of Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi

in the month of April, 2014 wherein cognizance was taken by the Court and

summons were issued to the accused/respondent No.2. However, during the

time, when the said matter was pending adjudication, in light of the

judgment passed by the Hon'ble Supreme Court in Dashrath Rupsingh

Rathod Vs. State of Maharashtra & Anr., (2014) 9 SCC 129, the said

complaint case was returned to the appellant/complainant by the Court vide

order dated 09.10.2014 to be filed before competent Court i.e. before the

jurisdiction of the Court where the bank of the drawer/accused/respondent

No.2 was located.

3. Hence, the said complaint was filed by the Appellant/Complainant

before the competent Court of Judicial Magistrate, Gurugram (earlier

Gurgaon), Haryana and the Court of Magistrate First Class, Gurugram had

taken up the matter on 14.11.2014, and on 01.12.2014 summons were issued

to the accused/respondent No.2 for 19.01.2015, pursuant to which accused

had appeared before the Court and the matter was proceeded further by the

Court in accordance with the law."

4. Thereafter, as per prescribed procedure, the matter was fixed for

complainant's evidence and the accused had sought opportunity to cross-

examine the witness(es) of the complainant, which request of the

accused/respondent No.2 was allowed by the Court. Subsequently, the

complainant/appellant was cross-examined by the counsel of the

accused/respondent No.2 in part on 04.03.15 and the matter was adjourned

for 20.03.15 on the request of the counsel of the respondent No.2/Accused

for completion of complainant's evidence.

5. On 20.03.2015, appellant/complainant was further cross examined by

the counsel of the respondent No.2/accused though the same was not

completed, thereafter another adjournment was sought by the counsel for the

respondent No.2 for want of certain documents on the part of the

appellant/complainant and the Court was pleased to adjourn the matter for

13.04.2015. On subsequent two dates i.e. 13.04.2015 and 16.05.15 nothing

substantive could be done in the matter as the Presiding Officer was on leave

and the matter was taken up by the 'Link Magistrate' and the next date, in

the matter, was fixed as 04.07.2015. However, it is pertinent to note here

that the complainant was regularly being represented by himself and/or his

counsel or both.

6. Meanwhile, the Negotiable Instruments Act was amended by the

Parliament, which amendment negated the judgment passed by the Hon'ble

Supreme Court in the case of "Dashrath Rupsingh Rathod Vs. State of

Maharashtra & Anr." and the amendment laid down that:

"the offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--

(a) if the cheque is delivered for collection through an

account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated Thus, in view of the amendment, complaint under the provisions of section 138 of the Negotiable Instruments Act, 1881 could be filed and maintained only at the place where the branch of the bank where the bank account of the Payee is situated."

7. Learned counsel further submits that the aforesaid fact and law was

brought to the kind knowledge of the Magistrate First Class, Gurugram on

15.09.15 and it was requested to the Court to transfer the matter to the

competent Court and the Court after hearing the submissions of the counsel

for the appellant/complainant was pleased to fix the matter for 29.10.2015

for consideration. On the said date, the Court, after appreciating the true

position of law, was pleased to return and transfer the complaint to the

competent Court i.e. District Courts, Tis Hazari, Delhi and directed the

parties to appear before the competent Court on 11.01.16.

8. Learned counsel further submits that on the aforesaid date, the

appellant/complainant along with his counsel went to the

concerned/competent Court, Tis Hazari Courts, Delhi and enquired about the

matter but it was informed to them that the matter with the said details had

not reached yet in the office and asked them to enquire after a week.

9. One week thereafter, the appellant/complainant and his counsel again

enquired from the registry of Tis Hazari Courts, as well as from the Court of

learned Chief Metropolitan Magistrate, West, Delhi about the status of the

matter and as to whether the office had received the matter from the Court of

Gurugram. However, again it was told to the complainant/his counsel that

the matter had not been received on transfer from the Court of Gurugram

and asked the complainant to approach the office of Court of Gurugram

from where the matter was supposed to be transferred. The complainant was

further directed to obtain tracking details including tracking number and

date as to when the matter was dispatched from the Court of Gurugram.

10. The appellant/complainant through his counsel continued to enquire

from the office/registry of the Court of Gurugram about the date of dispatch

of the matter as well as the details so that delivery/progress of the matter

could be tracked, but concerned office continued to state that the matter had

been dispatched, but delivery date, mode and article number and other

details were never provided as they said that the same was not traceable.

However, registry was continuously assuring that they were searching the

required details and as soon as they will get it will be apprised the same to

the complainant/his counsel but it was never provided either to the

complainant or his counsel.

11. Learned counsel further submits that for recovery of the loan amount

of ₹13,50,000/-, a summary suit was also filed by the Appellant before the

Court of learned Additional District Judge, Tis Hazari Courts, Delhi against

the respondent No.2. In the said suit also, notice to the respondent No.2 was

issued and he had filed his leave to defend application, which was allowed

by the Court and the suit was converted into an ordinary suit which is

pending adjudication and at present, matter is at the stage of defendants'

evidence.

12. It is not in dispute that the plaintiff/appellant had filed his evidence by

way of, affidavit and in the affidavit also he had mentioned about the

pendency of complaint under Section 138 of the Negotiable Instruments Act

against the respondent No.2/defendant. The aforesaid suit was last listed on

11.04.2017 for evidence of the plaintiff and on which date the plaintiff was

cross examined by the counsel for the defendant/respondent No.2 in part.

During the cross examination, the counsel for the respondent No.2/defendant

gave the suggestion that the plaintiff had wrongly deposed that the

complaint under section 138 against the defendant was pending, whereas the

same had already been dismissed on 23.08.2016 and the accused/defendant

had been acquitted by the Court of Ms. Ruchi Aggarwal Asrani, Learned

MM, Tis Hazari Courts, Delhi.

13. Learned counsel for the petitioner has submitted that on the aforesaid

suggestion given by the counsel for the respondent No.2/ defendant, the

counsel for the appellant immediately enquired from the aforesaid Court and

then only acquired knowledge that the complaint filed by the appellant had

actually been dismissed vide order dated 23.08.2016 and the matter was

consigned to the Record Room.

14. Order sheet reveals that Mr. Manish Gupta appeared on behalf of the

respondent No. 2 on 13.12.2017 and leave was granted by the said order.

Order sheet further reveals that on 19.03.2018, none appeared on behalf of

the respondent No. 2 and leave was granted vide the said order.

15. Keeping in view the fact that initially the appellant had filed

complaint under Section 138 Negotiable Instruments Act before the Courts

in Delhi and thereafter, in view of the Dashrath Rupsingh Rathod (Supra),

the same was returned and filed before the Court of Gurugram (Haryana).

Thereafter, due to the amendment in the year 2015, whereby the decision

passed in Dashrath Rupsingh Rathod (Supra) by the Hon'ble Supreme

Court had been nullified. Consequently, the complaint filed by the appellant

at Gurugram (Haryana) was transferred from there to the District Court,

Delhi.

16. The complaint was returned and transferred vide order dated

29.10.2015 and the date given in the said order was 11.01.2016. However,

the matter was not listed on 11.01.2016. Thereafter, he got verified from the

Court of Gurugram about the status of the same.

17. The matter was listed for the first time on 28.01.2016 before the

learned Chief Metropolitan Magistrate, Delhi and the information of the

same was never given to the appellants or his counsel. Thereafter, matter

was fixed for 02.02.2016 and 10.05.2016. On the aforementioned dates, the

Presiding Officer was on leave, therefore, no proceedings could take place.

On 23.08.2016, since the appellant was not aware of the further date of

hearing, therefore, neither appellant nor his counsel appeared on the said

date. Consequently, vide the aforesaid order, the complaint was dismissed

for not being prosecuted.

18. Fact remains that when the Gurugram Court transferred the matter

vide order dated 29.10.2015, it was to be listed before the District Court,

Delhi on 11.01.2016, however, it was not listed on that day. Thereafter,

there was no information further to the appellant, as to when and where the

matter was to be posted.

19. Therefore, in view of the peculiar circumstances of the present case

and the fact that the appellant was running from pillar to post as complaint

was initially filed at Delhi, thereafter transferred to Gurugram and then to

Delhi again. I hereby set aside the order dated 23.08.2016. Consequently,

the Trial Court is directed to restore the Complaint Case No. 19715/2016 to

its original number.

20. The parties are directed to appear before the concerned Court on

02.12.2019. It is made clear that if none appears on behalf of the respondent

No. 2 on the date fixed i.e. on 02.12.2019, the learned Trial Court may take

steps against the said respondent, as per the law.

21. In view of the above, the petition is allowed.

22. Dasti.

(SURESH KUMAR KAIT) JUDGE NOVEMBER 21, 2019/PB