M/S Somani Worsted Private Limited v. AEZ Infratech Pvt. Ltd. & Ors.

1. The three petitions: i,e. Crh;;.M.C;, 1684/2016, Crl. M.C. No.1685/2016 and Crl. M.G^.46^8/2016/^^ filed by the same petitioner M/s Somani Worsted Pvt./Ltid. assail the common order dated 22.03.2016 of the learned-ASLOSi;Pa House Courts, New Delhi in Crl.Rev.No.ll7/201^i:,Qrl.^R^ and Crl.Rev. No.119/2015,vide which th|;pr||m^ and 15.10.2015 ofthe learned MM-05,NeWDeMiMstfictl'P^^ House Courts,New Delhiin ComplaintCase Nosi3ii3li7M®4^;^9/l/2014 and 350/1/2014 were set aside with directions to the learned trial Courtto pass a fresh order in view ofthe Neg6ti|BleHnstrunte^^ Ordinance, 2015 and the'Act'passed subsequently.

2. Submissions have been made on behalfofeither side.

3. A bare perusal of the complaints that were filed by the petitioner herein indicates that they were all instituted under Sections 138 and 141 ofthe Negotiable Instruments Act, 1881 in the year 2012 and are against AEZ Infratech Pvt. Ltd., the respondent no.l, its Managing Director,Shri Sanjeev Jai Narain Aeren,its Director, Crl. M.C.NOS.]684/2016,168.S/2016,1698/2016. Page 2of14 Shri Vijay Kumar Gupta and its Authorized Signatory Shri Kailash Gupta arrayed as respondent nos.[2] to 4 respectively for dishonour of cheques issued on behalf of the respondent no.l allegedly by the respondent nos.[2] to 4 all in favour ofthe complainant arrayed as the petitioner herein vide cheque bearing no.556029 dated 10.01.2012for a sum of Rs.1,24,99,995/-, for dishonour of cheque bearing No.556035 dated 10.01.2012 for a sum of Rs.13,60,00,000/- and dishonour ofcheque bearing No.556028 dated 10.10.2011 for a sum ofRs.2,25,00,000/- as mentioned inthe respective complaints.

4. As per averments madq in,,,each«jpf the complaints, the said cheques were presented forfencashrhenf,af New Delhi and were returned unpaid at New Delhhahd the mtimation ofthe return ofthe said chequesasunpaid wasrbcdiyed by,thqcomplainantatNew Delhi. As per averments in the complaints,vwhich are identical,it was stated that the office ofthe accused no/l heR^c^e respondent no.l herein '' ^ 'f" was situated at Delhi and^atthe leg|l|rfeMe was issued from New Delhi and it was submitted that' action for institution of the complaintsarose andlay withinthejurisdiction ofthetrial Courtat New Delhi.

5. Vide order dated 21.08.20f[5],thelearned trial Courtobserved to the effectthatthe facts ofthe complaintrevealed thatthe complainant had deposited the cheques for encashment in his account maintained with the ICICI Bank, Base Branch, 612, Ground Floor, 0pp. Rani Mill,Delhi Road,Meerut-250002,U.P.and that as perthe complaint, the payee bank is situated within the jurisdiction of Meerut, U.P., which falls within thejurisdiction ofDistrict Court,Meerut,U.P.and Crl.M.C.Nos.1684/2016,1685/2016,1698/2016 Page3of14 thus in tenns ofthe Negotiable Instruments(Amendment)Ordinance, 2015, which came into force on 15.06.2015 with reference to the Clause 3(2)and Clause 4thereofwhich are as under: "Clause3(2) The offence under section 138 shall be inquired into and tried only bya courtwithin whoselocaljurisdiction,- (a) if the cheque is delivered for collection through an account, the branch ofthe bank where the payee or holder in due course, as the case may be,,maintains the account, is situated; or (b) ifthe cheque is presentedfor payment by the payee or holder in due course otherwise- through an account, the branch ofthe drawee bank wjiere-the drawer maintains the account, is situated.;,,>;■ Claused ■ 142A. (1) NotwithstandinganythingffoM in the Code ofCriminal Procedure, 1973 ob anyjudgment, decree, order or directions of any court,fall cqses^^^d^^ out of section 138 which were pending in cinyffbuft, whetherfiled before it, or transferred to it, bffore'jhefcommencement of the Negotiable InstrumentffAmjmdmdn^ 2015 shall be transferred to theffdwffJuffhffjiqffd^^ under sub section (2) ofsection piT^'cfftifffli^^ had been in force at all material timks:-'=^-- ''~- '---^- (2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where t]}e:pqyee or the holder in due course, as theicaseffMiy lej'y hatfiled a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) ofsection 142 or the case has been transferred to that court under sub-section (1), and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. Crl.M.C.Nos.1684/2016,1685/2016,1698/2016 (S)If, on the date ofthe commencement ofthe Negotiable Instruments (Amendment) Ordinance, 2015, more than one prosecutionfiled by thesamepayee or holder in due course, as the case may be, against the same drawer ofcheques is pending before different courts, upon the saidfact having been brought to the notice of the court, such court shall transfer the case to the court havingjurisdiction undersub section (2) ofsection 142 before which thefirst case was filed and ispending,as ifthatsub-section had been inforce atall material times.", the learned trial Court observed to the effect that in view ofthe said referred provisions,the complaint was^fequiredto betransferredtothe Court havingjurisdiction under;Siibrsection(2)ofSection 142 ofthe Negotiable Instruments Act,llBsi.and the matter was directed to be placed before the learned CMM-for the needful and appropriate directions on 07.10.2015.;5

6. Asperaverments madqiriitl^ 07.10.2015,whenthe matter waslisted before transfer,the counselfor the respondent no.l appeared;and putforth that he was appearing for the complainant and stated that^he was not present when the order dated 12.08.2015 was passed and that the Branch ofthe complainant Bank was situated in DelhiiSSImel^ thus permitted the factsto be placed beforethelearned MM on 15.10.2015.

7. The said order dated 15.10.2015 of the learned trial Court bringsforth categoricallythatthelearnedtrial Courthasobservedthat it passed the order for transfer ofthe case in terms ofthe then latest Ordinance i.e.NegotiableInstruments(Amendment)Ordinance,2015 andthelearnedtrialCourthasfurtherobservedtotheeffectthatithad PgCTP 5 of14" considered the submission of both sides and that it had become functuous officio with the order dated 21.08.2015 having attained finality and could notreview its own order.

8. The Revisional Court observed vide para 9 of the impugned order to the effect "9. Having heard the arguments of both the parties and taking into consideration thefact thatsince amendment vide Section 142 A (1), Amendment Act of the Negotiable Instruments(Amendment)Second Ordinance, 7of2015, the jurisdiction has been restoredto theplace where the cheque waspresented by the complainant.Ihave gone through the Negotiable Instruments (Amendtnent) Ordinance, 2015, the relevant sections 3 and:74'}pf^.iHf Ordinance, 2015 are reproducedverbatim which drejdfpider:- "3.In theprincipalAcjsectidhl'd2shall be numberedas sub section (1) thereofqndfafier sub-section (1) as so numbered, the follqwingjsubjection shall be inserted, namely;— j J;y'j "(2) The offencejunder fectipn 138 shall be Inquired Into and triedjohlyfByj(fpdMrt within whose local Jurisdiction,— jyfjAyj (a)ifthe chequef^;dNiye^ collection through an account, the bldnch ofthe bank where thepayee or holder in due course, as the case may be, maintainsjhe:qpcount,issituated;or (b)Ifthe che(pAf0:f)re^nled'for payment by the payee or holder in due course otherwise through an account, the branch ofthe drawee bank where the drawer maintains the account, is situated. Explanation.—For the purposes of clause (a), where a cheque is deliveredfor collection at any branch ofthe bank ofthe payee or holderIn due course, then, the cheque shall be deemed to have been delivered to the branch ofthe bank In which thepayee or holderIn due course, as the case may be, maintains the account.". Crl.M.C.Nos.1684/2016,1685/2016,1698/2016 Page6ofl[4] v\

4. In the principal Act, after section 142, the following section shall be inserted, namely;— "142A.(1)Notwithstanding anything containedIn the Code ofCriminalProcedure, 1973or anyjudgment,decree, order or directions ofany court, all cases arising out ofsection 138 which werepending in any court, whetherfiled before It, or transferred to it, before the commencement of the NegotiableInstruments(Amendment)Ordinance, 2015shall be transferred to the court havingjurisdiction under sub section (2)ofsection 142 asIfthatsub-section had been in force atall materialtimes." Injudgment"M/sEscorts Ltd. v. Rama Mukherjee-2013 (3) DCR 1 Supreme CourtofIndia", it has been observed that:- "5. It Is apparent, that.tHe cphcliisipp drawn, by the High Court, In the Impugned order/datdd 27.4.2012, is not in consonance with the decision)rin^ by this Court In Nishant Aggai-wal's 'case (supra). Therein it has been concluded, that the Court within the Jurisdiction whereof, the dishonoured cheque: wasipresented for encashment, would have the JurisdictiPn tojentertain the complaintfiled underSection 138oftheNegpiiableInstruments Act.

7. In view ofthe abpfei.jid^g^^ consideration the factualposition noticed by/lie paragraph 13 ofthe impugnedjudgment, we are ofthe view, that the High Court erred in concluding that the courts at Delhi, did not have thejurisdictionldtrythe.petitipn^ by the appellant under Section 138 ofthe Negotiable Instruments Act. The impugned order dated 27.4.2012 passed by the High Court is accordingly liable to be set aside. The same is, therefore, herebysetaside." and thus observed to the effect that as per returning memo dated 03.04.2012,the complaint had its account at the Jhandewalan Branch, Crl.M.C.Nos.1684/2016,1685/2016,1698/2016 Page 7of14 New Delhi whereinthe cheques were presented andthustheimpugned orders dated 21.08.2015 & 15.10.2015 were set aside.

9. The contention raised on behalfofthe petitioner herein is to the effect that when the complaint was instituted in June, 2012, the territorial jurisdiction lay with the Court at Delhi in terms of the verdict ofthe Hon'ble Supreme Court in K.Bhaskaran vs. Sankaran Vaidhyan Balan and Anr. AIR 1999 SC 3762 wherein it was observed to the effect:- "14. The offence under Section 138 ofthe Act can he completed only with the concqteriation ofa number of acts.Followingare the actswhich dj^CrCO ofthe said offence:(1)Drawing of G)Presentation of the cheque to the:hank,f31^^ the cheque unpaid hy the drawee bank',(ffGifing notice in writing to the drawer ofthe dhe^f(demanding payment ofthe chequeamount,(5)f2ilmpjil^ijdfwerto makepayment within 15daysofthereeeiptpfi^riotice.

16. Thus it is clear, done in five different localitfes:.qnf^ ofie ojthe,courts exercising jurisdiction in oneof alareas can becomethe placeoftrialfortheoffence underSection 138oftheAct. In other words, the complainant can choose any one of those courts havingjuGsdietipn qyep'dfif.one ofthe local areas within the terriidridtlimits bf which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138ofthe Act."

10. Reference was also made by the petitioner to the verdict ofthe Hon'ble Supreme CourtinHarmanElectronicsPvt.Ltd.vs.National PanasonicIndiaPvt.Ltd.(2009)1SCC720,which clarifiedthesame and the verdictofthe Hon'ble Supreme CourtinDashrath Rupsmgh Rathod Vs. State of Maharashtra and Am. (Criminal Appeal No.2287/2009)which varied the same wherein it had been laid down thatthe Court wherethe accountofthe accused i.e.ofthe drawer was maintained, would be the Court having territorial jurisdiction in the matter,

11. The NegotiableInstruments(Amendment)Ordinance,2015 of June,2015 however,conferred the exclusivejurisdiction atthe place where the complainant maintains its account and explanation to Section 142(2)thereof made it,expres% clear that where a cheque was delivered for collection to any branch oi'die bankofthe payee or holder in due course, the cljetaue 3vi|ul[4];'be deemed to have been deliveredtothe branch ofti|il|a^:i|(fiich the payee orholderin duecourse,asthecasemayi^r(ndii|ain|ftheaccountandthus,ithas been submitted on behalfof|^^tit||gthatthelearned trialCourt in its enquiry to determin|tfeH|ai|iyi^4he accountwasactually maintained, took into account thb statement of the account duly evidencing the eventual debit and credit entries with regard to the cheques in question andjThe^lIsp^ complainant was situated at the Base Branch at Meerut,U.P.,thus directed the transfer ofthe complaints to the Meerut,UP where the complainantmaintains its account.

12. The petitioner i.e.thecomplainantofthethreecomplaintcases has placed on record the copy ofthe certificate issued by theICICI BankLimited,Meerut,U.P.dated27.10.2015,which certifiesthatthe petitioner herein maintained a current account bearmg Page9of14 No.036805002623 with the ICICI Bank branch situated at Plot No.612, Opp. Rani Mill, Near Baghpat Gate, Delhi Road, Meerut, U.P. and further certifies that the petitioner had deposited cheque bearing no. 556029 for a sum of Rs.1,24,99,995/-, cheque bearing No.556035 for a sum of Rs.13,60,00,000/- and cheque bearing No.556028 for a sum of Rs.2,25,00,000/-, all drawn on Citi Bank, Delhi for collection but the same were returned unpaid by the paying banker on 03.04.2012 mentioning the reason 'account closed'. The copy of the summary of accounts ofthe petitioner in relation to the account bearing no. 036805Q02623,wds also placed on record by the petitioner, which shows the aepbunt ofthe;petitioner to be maintained at the Base Branch,612, Grouhd-FloorpG^ Rani Mill, Delhi Road, Meerut-250002, U.P. and shows,the:reject of the three cheques bearing nos. 556029, 556035 /and 556028 with the account of the drawer being shown to have:b,eenJlosed.