Crl.M.C.No.1841/2009

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Crl.M.C.1841/2009

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Date of Decision: 17^th February, 2010

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GOPAL MISHRA

..... Petitioner

! Through: Mr.Harsh Khanna, Adv.

versus

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THE STATE & ANOTHER

..... Respondents

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Through: Mr.Pawan Behl, APP

Mr.Sanjeev Singh for R-2.

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CORAM:

HON'BLE MR. JUSTICE V.K. JAIN

1.

Whether the Reporters of local papers

may be allowed to see the judgment?

No

2.

To be referred to the Reporter or not?

No

3.

Whether the judgment should be

Yes

reported in the Digest?

: V.K. JAIN, J.(Oral)

1.

This is a petition under Section 482 of the Code of

Criminal Procedure for quashing the complaint filed against

him under Section 138 of the Negotiable Instruments Act.

The petitioner is seeking quashing of the complaint and the

order of the learned Metropolitan Magistrate dated 1.6.2009,

whereby he was summoned, on the ground that Delhi Court

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has no jurisdiction to entertain and try the complaint filed

against him.

2.

There are five essential ingredients of offence under

Section 138 of the Negotiable Instruments Act, as held by the

Supreme Court in the case of “K.Bhaskaran Vs. Sankaran

VAidhyan Balan & Another”, (1999) 7 SCC 510, (i) drawing

of the cheque, (ii) presentation of the cheque to the bank of

the payee, (iii) return of the cheque unpaid by the drawee

bank, (iv) giving of notice to the drawer of the cheque

demanding payment of the cheque amount and (v) failure of

the drawer to make payment within 15 days of the receipt of

the notice.

3.

This is not the case of the complainant that cheque in

question was issued and delivered to it in Delhi. There is no

such allegation to this effect in the complaint and during the

course of arguments also no such stand was taken by the

learned counsel for the complainant. It is an admitted case

that the petitioner is a resident of Jaipur and does not have

either a residence or a place of work in Delhi. It is an

admitted case that cheque in question was drawn on a bank

in Jaipur and was dishonoured by that bank at Jaipur. It is

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also an admitted position that the notice of demand though

issued from Delhi was sent to the petitioner at Jaipur. This

is nowhere the case of the complainant that the notice of

demand was served upon the petitioner in Delhi.

4.

The learned counsel for the complainant/respondent

No.2 claims jurisdiction of Delhi Court on the ground that the

notice of demand was issued from Delhi and issue of notice of

demand being an essential ingredient of the offence

punishable under Section 138 of Negotiable Instruments Act,

part of the offence under Section 138 of Negotiable

Instruments Act took place in Delhi.

5.

The submission made by the learned counsel came up

for consideration before the Hon‟ble Supreme Court in

„Harman Electronics Private Limited and Anr. v. National

Panasonic India Private Limited’, (2009) 1 SCC 720. In

that

case,

the

appellant

was

carrying

business

at

Chandigarh. The complainant had its head office at Delhi

and a branch office at Chandigarh. The cheque in question

was issued, presented and dishonoured at Chandigarh. The

respondent/complainant issued notice to the appellant from

Delhi. The notice was served upon the appellant at

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Chandigarh. On failure of the appellant to pay the amount of

the cheque, a complaint was filed at Delhi. An application

filed by the appellant questioning jurisdiction of the court at

New Delhi was dismissed on the ground that since the notice

was sent by the complainant from Delhi, the appellant had

failed to make payment at Delhi and the respondent was

carrying out business at Delhi, the Delhi court