$~32 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 3551/2012 Decided on 29th November, 2012 SNEH DHAWAN Through: ..... Petitioner Mr. Pankaj Bhatia and Mr. Mehak, Advs. versus STATE & ANR. Through: ..... Respondents Mr. Mukesh Gupta, APP Mr. Tarkeshwar Nath, Adv. for respondent no.2. CORAM: HON'BLE MR. JUSTICE A.K. PATHAK A.K. PATHAK, J.(ORAL) 1. Complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by the respondent no. 2 against the petitioner is pending trial before the Trial Court.
2. Petitioner has challenged the jurisdiction of Delhi courts to entertain and try the complaint. The question which needs to be redressed in this petition is whether Delhi courts have territorial jurisdiction to try the complaint? 3. A perusal of complaint makes it clear that the parties are residing in NOIDA, U.P.; transactions between them took place at NOIDA; cheque was issued in NOIDA; cheque is drawn on a bank in NOIDA; respondent deposited the cheque for encashment, with its banker, that is, HDFC K/1418, Sector 18, NOIDA; cheque was returned unpaid with the return Memo at NOIDA. Only notice was got issued through a lawyer based in Delhi. Para 14 of the Complaint reads as under :That the cause of action has arisen within the territorial jurisdiction of this Honble Court as the statutory notice was sent by the complainant from the territorial jurisdiction of this Honble Court. Therefore, this Honble Court has territorial jurisdiction to take cognizance of the offence as committed by the accused.
4. There is no gainsaying that mere issuance of notice from Delhi will not attract jurisdiction of Delhi courts. In K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510.Supreme Court has held that the offence under Section 138 of the Act can be completed only with the concatenation of number of acts, i.e., (i) drawing of the cheque (ii) presentation of the cheque to the bank (iii) returning of cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding of the cheque amount, (v) failure of the drawer to make payment within 15 days of the receipt of the notice. In case the five different acts were done in five difference locations, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In another words the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts have been done.
5. In somewhat similar circumstances Supreme Court in Harman Electronics (P) Ltd. & Anr. Vs. M/s. National Panasonic India Ltd. AIR 200.SC 1168.held that Delhi Courts have no jurisdiction to try the complaint under Section 138 of the Act merely because notice was issued from Delhi. In the said case accused was based in Chandigarh. Cheque was issued at Chandigarh; complainant had a branch at Chandigarh; cheque was presented at Chandigarh. Only notice was issued from Delhi. It was observed thus While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an offence completes. Giving of notice, therefore, cannot have any precedent over the service.
6. In Som Sugandh Industries Ltd. & Anr. II (2010) DLT (CRL.) 475, a Single Judge of this Court has held that the notice shall be deemed to have been given at the place where it is served upon the addressee and not at the place from where it was dispatched. Mere sending of notice from Delhi at the address of the accused outside Delhi does not confer the power to Delhi Courts to try and entertain the case under Section 138 of the said Act. Mere issuance of notice by petitioner from Delhi itself would not vest jurisdiction in Delhi Courts. In Online IT Shoppe India Pvt. Ltd. & Ors. vs. State & Anr. 2010 (1) JCC (NI) 27, also it was held that sending notice from Delhi would not confer jurisdiction on Delhi courts.
7. Accordingly, I am of the view that Delhi courts have no territorial jurisdiction to try the present complaint. Complaint be returned to the respondent to present it before the court of competent jurisdiction, within two months.
8. Petition is disposed of in the above terms. A.K. PATHAK, J.
NOVEMBER 29 2012 ga