Criminal Misc. No. M-29539 of 2008 v. M/s GE Capital Transportation Financial Services

complainant/respondent firm, through its banker, vide advice dated

29.04.06. Thereafter, a legal notice, dated 26.05.06, was sent to the accused/petitioner, through Registered AD, on 26.05.06, from Gurgaon, which was received by him, but, neither he paid the amount due, nor any reply, was given by him, within the stipulated period of 15 days. It was stated that the aforesaid cheques, were issued, by the accused/petitioner, with a malafide intention to cheat the complainant/respondent firm. It was further stated that, as such, the accused/petitioner, caused wrongful gain to himself, and wrongful loss to the complainant/respondent firm. It was further stated that the Criminal Court, at Gurgaon, had jurisdiction to entertain and try the complaint, as the complainant/respondent firm, Criminal Misc. No. M-29539 of 2008 3 had its office, at Gurgaon. Intimation regarding dishonour of cheque was received at Gurgaon, and the legal notice, was sent from Gurgaon.

3. After recording the preliminary evidence of the witnesses, the Court of Judicial Magistrate 1st Class, Gurgaon, summoned the accused/petitioner, for the offence, punishable under Section 138 of the Act.

4. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.

5. The Counsel for the petitioner, no doubt, took up a number of pleas, in the instant petition, under Section 482 Cr.P.C., but, at the time of arguments, he only confined his arguments, to the effect, that the Criminal Court, at Gurgaon, had no jurisdiction, to entertain and try the complaint, under Section 138 of the Act. He further submitted that the cheques, were issued, at Pune, and the same, were dishonoured, at Pune. He further submitted that the petitioner, was having his office, at Pune. He further submitted that mere issuance of notice, after the alleged dishonour of the cheques, from Gurgaon, did not furnish any cause of action, to the complainant/respondent, to file a complaint, at Gurgaon. He further submitted that even as per the Master Security and Loan Agreement, executed between the parties, the jurisdiction, to adjudicate the disputes lay with the Courts, at Pune, or Delhi. He further submitted that, as such, the Criminal Court, at Gurgaon, wrongly took cognizance of the complaint. He further submitted that continuation of the complaint and the Criminal Misc. No. M-29539 of 2008 4 summoning order, would, thus, result into misuse of the process of law, and cause injustice to the petitioner. He further submitted that the complaint, as also the summoning order, be quashed.

6. On the other hand, the Counsel for the respondent, submitted that, no doubt, the cheques, were issued, at Pune, and the same were dishonoured, at Pune, but intimation regarding dishonour of the cheques was received by the respondent at Gurgaon, and legal notice, was issued, by the complainant/respondent, from Gurgaon, as it was having its office, at Gurgaon, and, as such, the Criminal Court, at Gurgaon, had jurisdiction, to entertain and try the complaint. He further submitted that the Criminal Court, at Gurgaon, rightly took cognizance of the offence, punishable under Section 138 of the Act. He further submitted that the complaint and the summoning order, are not liable to be quashed.

7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is not a fit case, in which the complaint, the summoning order and the subsequent proceedings should be quashed, for the reasons, to be recorded, hereinafter. Undisputedly, the cheques, were issued, in the sum of Rs. 49,400/- each, by the petitioner, in favour of the respondent, with a view to discharge his legally enforceable liability. The complainant/respondent, has got its office, at Gurgaon. There is, no dispute, that the cheques, were dishonoured, at Pune. The intimation of dishonour of the cheques, was received, by the complainant/respondent, at Gurgaon. The legal notice, after the Criminal Misc. No. M-29539 of 2008 5 cheques, were dishonoured, was sent, to the petitioner, from Gurgaon, which was received by him. When the petitioner, failed to pay the amount, within 15 days of the receipt of notice, left with no alternative, the complainant/respondent, filed a criminal complaint, at Gurgaon. Under these circumstances, it is to be seen, as to whether, the Criminal Court, at Gurgaon, had jurisdiction, to entertain and try the complaint or not. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another, 1999, AIR, SCW, 3809, relied upon, by the Counsel for the complainant/respondent, it was held, that the offence, under Section 138 of the Act, stands completed, only with the concatenation of a number of acts. Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. In K. Bhaskaran's case (supra), legal notice had been issued at Adoor (Kerala), after the intimation of dishonour of the cheque was received. In these circumstances, it was held, that it was not necessary that all the five acts should have been perpetrated at the same locality. It was further held that, it was possible that each of those acts could be done at 5 different localities. But concatenation of all the five is a sine qua non for the completion of the offence, under Section 138 of the Act. Accordingly, the Apex Court, held that, the Criminal Courts, at Adoor, wherefrom, the legal Criminal Misc. No. M-29539 of 2008 6 notice, was issued, by the complainant/respondent, had jurisdiction, to entertain and try the complaint, under Section 138 of the Act, according to Section 178(d) of the Code of Criminal Procedure, which is extracted, as under:- “Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.” It was further held that it must be borne in mind that the Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. The principle of law, laid down, in the aforesaid case, is fully applicable, to the facts of the instant case. As stated above, legal notice was issued, from Gurgaon, after the receipt of intimation, regarding the dishonour of the cheques, by the complainant/respondent. The complainant/respondent, has its office, at Gurgaon. The intimation, regarding the dishonour of the cheques, was received at Gurgaon. In these circumstances, the Criminal Court, at Gurgaon, had jurisdiction, to entertain and try the complaint. The complaint and the summoning order are, therefore, not liable to be quashed.

8. The Counsel for the petitioner, however, placed reliance, on M/s Harman Electronics (P) Ltd. and another Vs. M/s National Panasonic India Ltd., AIR, 2009, S.C., 1168, to contend, that only the Criminal Court, at Pune, where the cheques, were issued, and where, the same were dishonoured, had jurisdiction, to entertain and Criminal Misc. No. M-29539 of 2008 7 try the complaint. He further submitted that the Criminal Court, at a place, wherefrom the notice, after receipt of intimation, regarding the dishonour of the cheques, was issued, had no jurisdiction, to entertain and try the complaint. The perusal of the facts of the aforesaid case, clearly goes to show, that there was a dispute, as to whether, the cheque, was sent, for clearance, to Delhi. The cheque, was issued, at Chandigarh. The same was dishonoured at Chandigarh. The complainant/respondent, issued a notice, to the accused, asking him, to pay the amount, from New Delhi, which was served upon the accused, at Chandigarh. Both the parties, were carrying on their business also at Chandigarh. Under these circumstances, it was held, that it was only the Criminal Court, at Chandigarh, which was having jurisdiction, to entertain and try the complaint, under Section 138 of the Act. The facts of M/s Harman Electronics (P) Ltd. and another's case (supra), are clearly distinguishable, from the facts of the instant case. In the instant case, there is nothing, on the record, that the petitioner and the respondent/complainant, were carrying on their business at one place. On the other hand, it was established, that the petitioner, was carrying on his business, Pune, whereas, complainant/respondent, was carrying on its business, at Gurgaon. Intimation, with regard to the dishonour of the cheques, was received, at Gurgaon. Legal notice, after receipt of intimation, with regard to the dishonour of the cheques, was issued, from Gurgaon, which was received, by the petitioner, at Pune. In these Criminal Misc. No. M-29539 of 2008 8 circumstances, Criminal Court, at Gurgaon, had jurisdiction, to entertain and try the complaint. In this view of the matter, no help, can be drawn, by the Counsel for the petitioner, from M/s Harman Electronics (P) Ltd. and another's case (supra).

9. For the reasons recorded above, petition, under Section 482 Cr.P.C., for quashing Criminal Complaint No. 328-RG dated

06.07.06, titled as, 'M/s GE Capital Transportation Financial Services Ltd. Vs. Manjit Sudhist Kumar Gohel', (Annexure P1), pending in the Court of Judicial Magistrate 1st Class, Gurgaon, the summoning order dated 06.07.06 (Annexure P2), and the subsequent proceedings, arising therefrom, is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

11.01.2010 Amodh (SHAM SUNDER) JUDGE