IMPORTANT POINT
Evidence of complainant may be given on affidavit not only during course of trial but even pre-summoning stage.

Naheed Ara Moonis, J.— Heard Shri Anoop Trivedi, the learned counsel for the applicants, Shri M. K. Gupta, the learned counsel appearing on behalf of opposite party No. 2, the learned AGA for the State and perused the record.

2. The instant application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the summoning order dated 9.4.2009 as well as entire proceedings of complaint case No.867 of 2009, M/s Marino Industries Ltd. v. M/s Ensemble Furniture Solutions Pvt. Ltd., under Section 138 of the Negotiable Instruments Act, P.S. Hapur Kotwali, District Ghaziabad, pending in the court of learned Additional Chief Judicial Magistrate, Hapur, District Ghaziabad.

3. The question involved in the instant petition is with regard to the territorial jurisdiction of the court at District Ghaziabad to try the offence under Section 138 of the Negotiable Instruments Act.

4. In order to determine the question of jurisdiction as raised by the learned counsel for the applicants, .the brief facts are necessary to be given.

5. The opposite party No.2, M/s. Marino Industries Ltd. having its registered office at Village Acheja, Hapur, District Ghaziabad, whose Manager is Shri T. R. Sharma. The said company is engaged in the manufacturing of laminated goods, while the applicant No. l, M/s Ensemble Furniture Solutions Pvt. Ltd. having its registered office at B1, Paragon Center, P. B. Marg, Worli, Mumbai 13. The applicant No. 2 is the Director of the aforesaid company.

6. Certain goods were supplied by the company of the opposite party No.2 which was received by the company of the applicants without any objection. In respect of the goods supplied to the applicants’ company total amount of Rs.l,47,228 was due against the applicants. In this regard the applicant No.1 had issued a cheque No. 13059 dated 27.10.2008 of A. B. N. Amro Bank, Mumbai was given at the complainant’s office situated at Village Acheja; Hapur, District. Ghaziabad. The complainant submitted the said cheque in his account at the Axis Bank, New Delhi on 1.1.2009. The said cheque was dishonoured with the endorsement of insufficient funds on 5.1.2009. The cheque was dishonoured without encashment, the complainant sent a legal notice through his Advocate which was duly received by the applicant. Even after expiry of fifteen days of notice of service the applicants’ company failed to make the payment and as such the complaint was filed on 19.2.2009 before the court of Additional Chief Judicial Magistrate, Hapur with a prayer to prosecute the applicants who have committed an offence under Section 138 N.I. Act. The case was registered as complaint case No.872 of 2009, thereafter despite service of notice when the applicant failed to appear, non-bailable warrants were issued against them by order dated 9.4.2009.

7. It is vehemently argued by the learned counsel for the applicants that summoning order suffers. from manifest error as the learned Magistrate had no jurisdiction to pass the order. It is. evident from the complaint itself that the cheque was issued from Mumbai and has been deposited in New Delhi. No part of cause of action has been mentioned in the complaint which took place within the territorial jurisdiction of District Court Hapur at Ghaziabad. Notice prior to filing complaint has also been delivered at Mumbai. The cheque is also of Bank of India, Mumbai, which was deposited at Delhi and the same was dishonoured at Mumbai. The head Office of the company situates at Mumbai which has not been mentioned in the. complaint. Therefore where the cheque was delivered for encashment cannot be made place of jurisdiction.

8. In support of his contention, the learned counsel for the applicants has placed reliance upon several decisions of the Apex Court, which are as follows:

(i) Harman Electronics Private Limited and Another v. National Panasonic India Private Limited1,

(ii) Associated Cement Co. Ltd. v. Keshavariand.2

(iii) Maharaja Developers &