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2002 Supreme(Del) 1510
High Court Of Delhi
SUNIL SRIVASTAVA - Appellant
Versus
ASHOK KALRA - Respondent
Criminal Miscellaneous (Main) 2774 of 2002
Decided On : 09/25/2002
P.Narasimhan
Headnote:Negotiable Instruments Act, 1881 - Sections 138, 139 — Dishonour of cheque — Quashing of complaint — Territorial jurisdiction — Complainant resident of Delhi — Delhi courts have jurisdiction to entertain complaint as part of cause of action arose at Delhi — Allegations that complaint filed beyond limitation period prescribed by Section 142 of the Act, non-receipt of demand notice, successive presentation of cheques drawn on same date, and issue of cheques without any legally enforceable right, all not resolvable without considering evidence to be adduced by contending parties — Complaint not be quashed in exercise of inherent power of High Court under Section 482, Cr.P.C. — Criminal Procedure Code, 1973, Section 482 — General Clauses Act, 1897, Section 27.
Held:
The case is yet to go into trial. Parties will get an opportunity to adduce evidence and the sender of the notice can lead evidence to prove that the notice has been received by the petitioner or may prove the receipt of the notice by the petitioner on presumption of due service arising from Section 27 of the General Clauses Act.
There is no bar to the presentation of the cheques for encashment again and again within the period of six months or the validity of the cheque but once the notice of demand required by Clause (b) of proviso to Section 138 is issued cause of action for filing complaint in accordance with Clause (b) of Section 142 arises and subsequent presentation of the cheques and issuance of fresh demand notice based on its dishonour would not give afresh cause of action to the payee for filing the criminal complaint.
The petitioner disputed the allegations made in the complaint and has set up his own defense claiming that the cheques were without any legally enforceable debt, thereforee, the petition was not maintainable. The question cannot be resolved by considering mere claim made by the petitioner. It needed evidence for resolution. The complaint, thereforee, cannot be quashed on the bare allegation of the petitioner at this stage.
The cause of action for filing a complaint under Section 138 of the Act may also be at a place where the drawer of the cheque resided or the place where the payee resided or the place where either of them carried on business or the place where payment was to be made. The complaint can be filed before the court which has jurisdiction over any of these places.
Part of cause of action has arisen to the respondent at Delhi where he was residing since in response to the statutory notice of demand as per Section 138 the drawer of the cheque was to tender the amount of the cheque to the respondent at the place where he was available. In the present case the respondent was residing at Delhi. The petitioner No. 2 was obliged to tender the amount of the cheque and meet the demand raised in the notice of demand at Delhi. thereforee, part of cause of action has arisen at Delhi. The Court at Delhi has territorial jurisdiction to entertain the complaint under Section 138 of the Act, take cognizance and also try the petitioner.
There is no illegality or impropriety in the order warranting interference by this court in exercise of its inherent powers vested by Section 482 of the Cr.P.C.
( 1 ) THE petitioner is an accused in a criminal complaint filed by the respondent for his prosecution for offence under section 138 of Negotiable instrument Act (in short the Act) before a court in Delhi. He has filed this petition under section 482 of Cr. P. C. for quashing of this criminal complaint.
( 2 ) SUPREME Court in Rajender Prasad Versus Bashir and others, 2001 111 AD (Cr)sc 384 after referring to the earlier judgment in Krishnan and another Vs. Krishnaveni and another 1997 (4) SCC 241 held that the High Court should exercise its inherent power under Section 482 Cr. P. C. in special circumstances. In Krishnan and another (supra) the supreme court had laid down that the High Court may exercise power under Section 482 Cr. P. C. where High Court finds that there had been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High court may, in its discretion prevent the abuse of the process or miscarriage of justice. It is now well settled that a criminal complaint which does not disclose commission of offence may be quashed in order to prevent abuse of process. In the light of the above law, 1 proceed to decide the petition on its merit.
( 3 ) THE grounds on which the petitioner wants this criminal complaint to be quashed may be summarised as below:-
1) The criminal complaint is filed beyond the time prescribed by section 142 of the Act, as such, the trial court was debarred from taking cognizance of the offence and proceed with the trial.
2) There is no legal enforceable debt or liability against the petitioner accused entitling the respondent complaint to institute the criminal proceeding under section 138 of the Act.
3) The cause of action had arisen at karnpur where the cheques were dishonoured by the bank. Therefore, courts at Delhi had no territorial jurisdiction to entertain these criminal complaints.
4) A notice of demand is invalid as much as it has demanded the amount of cheque and other outstanding dues. Before adverting on the above grounds and the case law cited by the petitioner, it will be necessary to state the relevant facts for appreciating the arguments on merit.
( 4 ) A criminal complaint was filed by the respondent alleging that he was proprietor of M/s Transworld Cargo and Travels having its office at 2197/3, Chuna Mandi, paharganj,new Delhi. The petitioner accused used to get consignments for his various clients booked for transportation through the respondent in respect of which the respondent had raised bills in the name of the clients of the petitioner as requested and demanded by the petitioner but the payments were being made by the petitioner in respect of those consignments. In order to make the payment of the outstanding clues of the respondent, the petitioner issued, amongst others, four cheques dated 12. 6. 1996, 23. 7. 1996, 27. 11. 1996 and 23. 7. 1996 all drawn on his banker State Bank of Patiala, naveen Market, Kanpur for the sum of Rs. l. OO lac, 34,000/-, 34,000/- and 32,000/- respectively in favour of respondent firm in part payment of the freight payable in respect of the consignment. The cheques were presented to the banker of the petitioner through oriental Bank of Commerce, Rajindra Nagar , New Delhi within the validity period of the cheques but they were dishonoured by State Bank of Patiala, Naveen Market, kanpur vide their cheque return memorandum dated 16. 12. 1996 for the reason "insufficient funds" in the account of the petitioner. The petitioner thereupon issued a notice dated 23. 12. 1996 by registered post A. D. demanding payment of the amount of the cheques as well as other outstanding dues within a period of 15. days from the date of the receipt of the notice of demand. Notice dated 23. 12. 1996 was duly served and received by the petitioner accused at both office addresses but he failed to make the payment within the stipulated period of 15 days from the receipt of the notice. the petitioner thereby h
