MAHESH STATIONARIES & ANR. Vs INDIABULLS FINANCIAL SERVICES LTD.
Bench: T.S. THAKUR,C. NAGAPPAN
Case number: Transfer Petition (crl.) 403 of 2013
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRL.) NO.403 OF 2013
Sree Mahesh Stationaries & Anr. …Petitioners
Vs.
Indiabulls Financial Services Ltd. …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. In this petition under Section 406 of the Cr.P.C., the
petitioners seek transfer of Criminal Complaint No.14089 of
2009 from the Court of Judicial Magistrate, First Class,
Gurgaon, Haryana to the Court of competent jurisdiction at
Bangalore. 2. The petitioner appears to have borrowed a loan of
Rs.15,00,000/- (Rupees Fifteen Lakh) for business purposes
from the respondent-company. A cheque allegedly issued in
partial repayment of the loan amount and drawn on the
Syndicate Bank, City Market Branch, Bangalore, when
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presented for encashment to ING Vysya Bank, Gurgaon
appears to have been dishonoured resulting in the issue of
statutory notices to the petitioners and eventual filing of a
complaint before the Judicial Magistrate, First Class at
Gurgaon under Section 138 of The Negotiable Instruments
Act, 1881. The Magistrate has taken cognizance and
summoned the petitioners for appearance to face the trial.
Petitioners have, in that backdrop, filed the present transfer
petition seeking transfer of the complaint afore-mentioned
from Gurgaon to the competent Court at Bangalore. 3. Petitioners’ case, as is evident from the averments
made in the transfer petition, is that the Courts at Gurgaon
have no jurisdiction to entertain the complaint specially
when the cheque in question was issued and dishonoured at
Bangalore and the offence, if any, was committed only at
Bangalore. Issue of statutory notices to the petitioners from
Gurgaon also does not confer jurisdiction upon the Courts
concerned or justify continuance of the proceedings at
Gurgaon. 4. Having heard learned counsel for the parties, we are
inclined to allow this petition. We say so because in para 7
of the complaint filed by the respondent-complainant the
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reason for filing the complaint at Gurgaon has been set out,
thus: “That the cause of action for filing the present complaint arose when the aforesaid cheque was issued to the complainant company when the intimation regarding dishonour of the said cheque was received when the aforesaid legal notice under Section 138 of the N.I. Act was sent to the accused and on the failure of the accused to make payment despite being served with the said notice within the stipulated period of 15 days. The cause of action is still subsisting and continuing. This Hon’ble Court has jurisdiction to take cognizance of the offence as the cause of action arose within the jurisdiction of this Hon’ble Court. The complaint is within the period of limitation as per law.”
5. It is evident from the above that the only reason the
complainant claims jurisdiction for the Courts at Gurgaon is
the fact that the complainant-respondent had issued the
statutory notices relating to the dishonour of the cheque
from Gurgaon. We do not think that issue of a statutory
notice can by itself confer jurisdiction upon the Court to take
cognizance of an offence under Section 138 of The
Negotiable Instruments Act. We say so because in Harman
Electronics (P) Ltd. v. National Panasonic India (P)
Ltd. (2009) 1 SCC 720 this Court examined a similar
question and clearly ruled that a unilateral act on the part of
the complainant of issuing a notice from any part of the
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country would not vest the Court from within whose
territorial limits the notice has been issued with the power to
entertain a complaint. That judgment has been affirmed by a
three-judge bench of this Court in Dashrath Rupsingh
Rathod v. State of Maharashtra & Anr. Criminal Appeal
No.2287 of 2009 delivered on 1st August, 2014. This
Court has in that case held that presentation of the cheque
at a place of the choice of the complainant or issue of a
notice from any such place do not constitute ingredients of
the offence under Section 138 and cannot, therefore, confer
jurisdiction upon the Court from where such acts are
performed. Although the complaint does not claim
jurisdiction for the Court at Gurgaon on the ground that the
cheque was presented for collection there yet in the Counter
affidavit, the respondent has tried to justify the filing of the
complaint on that ground. Dashrath Rupsingh’s case
(supra), however, does not, as mentioned above, accept
presentation of a cheque to be a valid presentation for
purposes of limitation within the meaning of Section 138
unless the same is to the drawee bank. That is the view
taken even in Ishar Alloy Steels Ltd. v. Jayaswals Neco
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Ltd. (2001) 3 SCC 609. On either ground, therefore, the
Courts in Gurgaon could not assume jurisdiction. Following
the decisions in Dashrath Rupsingh’s and Ishar Alloy
Steels cases (supra), we have no hesitation in allowing the
petition and directing transfer of the complaint to the
competent Court to entertain the same. 6. We accordingly allow this petition and transfer Criminal
Complaint No.14089 of 2009 titled Indiabulls Financial
Services Ltd. v. Sree Mahesh Stationaries from the
Court of Judicial Magistrate, First Class, Gurgaon, Haryana
to the Court of competent jurisdiction of Chief Metropolitan
Magistrate at Bangalore who shall try the case himself or
transfer the same to any other Court competent to try the
same. No costs.
………………………………….…..…J. (T.S. THAKUR)
…………………………..……………..J. New Delhi, (C. NAGAPPAN) August 5, 2014
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