{"id":58670,"date":"2002-07-12T00:00:00","date_gmt":"2002-07-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lok-housing-constructions-ltd-vs-raghupati-leasing-finance-ltd-on-12-july-2002"},"modified":"2017-05-12T13:05:53","modified_gmt":"2017-05-12T07:35:53","slug":"lok-housing-constructions-ltd-vs-raghupati-leasing-finance-ltd-on-12-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lok-housing-constructions-ltd-vs-raghupati-leasing-finance-ltd-on-12-july-2002","title":{"rendered":"Lok Housing & Constructions Ltd. vs Raghupati Leasing & Finance Ltd. … on 12 July, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Lok Housing & Constructions Ltd. vs Raghupati Leasing & Finance Ltd. … on 12 July, 2002<\/div>\n
Equivalent citations: 2003 115 CompCas 957 Delhi, 100 (2002) DLT 38, 2002 (64) DRJ 332<\/div>\n
Author: S Agarwal<\/div>\n
Bench: S Agarwal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  S.K. Agarwal, J.   <\/p>\n
 1. This petition under Section 397\/401 read with
\nSection 482 of Code of Criminal Procedure (for short
\n‘Cr.P.C.’) is directed against the order dated 3rd July,
\n1999 passed by the court of Metropolitan Magistrate, New
\nDelhi dismissing application of the petitioners for
\nrecalling the order of summoning dated 25th July, 1998
\nunder Sections 138 read with Section 142 of Negotiable
\nInstruments Act (for short ‘N.I. Act’).\n<\/p>\n
 2. Facts in brief are that the respondent filed a
\ncomplaint under Section 138 of N.I. Act against the
\npetitioners alleging that the complainant company, during
\nthe course of its business of leasing and financing
\nprovided inter-corporate deposit of Rs. 50 lacs (fifty
\nlacs) to the petitioners; and they executed guarantee,
\npromissory note, receipt and other connected documents.
\nThe deposit was extended from time to time at their
\nrequest. It was lastly renewed for 90 days on 7.6.1997.
\nThe petitioners issued advance post dated cheque dated
\n30th September, 1997 drawn on Bank of India, Andheri
\n(East), Mumbai towards discharge of the principal amount.
\nThe cheque was sent for encashment by the complainant on
\n4th March, 1998 through its bankers ABN Amro Bank, at New
\nDelhi. It was returned un-paid by the bankers of the
\naccused company with the remarks “insufficient funds”
\nthrough memo dated 7th March, 1998. The information in
\nthis regard was given to the complainant vide return memo
\non 17th March, 1998. Thereafter, through notice dated
\n28th March, 1998 petitioners were called upon to pay the
\namount covering the said cheque. The accused failed to
\npay the amount despite notice. The complaint against the
\ncompany, its Chairman and Managing Director, who are
\nresponsible for the conduct of the business of the company
\nwas filed. After preliminary evidence, the petitioners
\nwere summoned under Section 138 read with Section 142 of
\nN.I. Act. They moved an application for recalling the
\norder of summoning. Complainant opposed the same.
\nLearned trial judge by order dated 3rd July, 1999
\ndismissed their application. This order is under
\nchallenge.\n<\/p>\n
 3. I have heard the learned counsel for the parties
\nand have been taken through the record.\n<\/p>\n
 4. Learned counsel for the petitioners firstly
\nargued that the transaction had taken place at Mumbai;
\nthe cheque was drawn on “the bank” at Mumbai; it was to
\nbe encashed at Mumbai and the cheque was dishonoured at
\nMumbai, therefore, courts in Delhi have no territorial
\njurisdiction to entertain the complaint; and that the
\ncomplaint was instituted at Delhi with an intent to harass
\nthem. The strength to support this argument was sought to
\nbe drawn from the observations made by the Supreme Court
\nin  Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd.<\/a>
\n2001 CRI.L.J. 1250. The complainant’s case is that one
\nof its office is in Delhi; the cheque in question was
\ndeposited by them with their bank at Delhi; the
\ncomplainant came to know of the dishonouring of the cheque
\nat Delhi; notice was issued from Delhi, therefore, part
\nof cause action had arisen in Delhi.\n<\/p>\n
 5. Law in this regard is settled by the Supreme
\nCourt in  K. Bhaskaran v. Sankaran Vaidhyan Balan and
\nAnr.<\/a> 1999 (6) Scale 272. The Supreme Court has observed
\nthat the offence under Section 138 of N.I. Act is
\ncomplete only on the concatenation of five acts which are
\ncomponents of the offence. These are drawing of cheque,
\npresentation of cheque, returning of the cheque un-paid by
\nthe drawee bank, giving notice in writing to the darwer
\ndemanding payment of the cheque and failure of the drawer
\nto make payment within 15 days of the receipt of the
\nnotice. It was further noticed that it is not necessary
\nthat all five acts should happen in the same locality;
\nand it is possible that all five acts may have been done
\nat five different localities. It was held that under
\nSub-clause (d) of Section 178 of Cr.P.C. which provides
\nthat where the offence consists of several acts done in
\ndifferent local areas, it may be enquired into or tried by
\na court having jurisdiction over any such local area. It
\nwas held:\n<\/p>\n
 “14. The offence under Section 138
\nof the Act can be completed only with the
\nconcatenation of a number of acts.\n<\/p>\n
Following are the acts which are
\ncomponents of the said offence : (1)
\nDrawing of the cheque, (2) Presentation
\nof the cheque to the bank, (3) Returning
\nthe cheque unpaid by the drawee bank, (4)
\nGiving notice in writing to the drawer of
\nthe cheque demanding payment of the
\ncheque amount, (5) failure of the drawer
\nto make payment within 15 days of the
\nreceipt of the notice.\n<\/p>\n
 15. It is not necessary that all
\nthe above five acts should have been
\nperpetrated at the same locality. It is
\npossible that each of those five acts
\ncould be done at 5 different localities.
\nBut concatenation of all the above five
\nis a sine qua non for the completion of
\nthe offence under Section 138 of the
\nCode. In this context a reference to
\nSection 178(d) of the Code is useful. It
\nis extracted below:\n<\/p>\n
  “Where the offence consists of
\nseveral acts done in different
\nlocal areas, it may be inquired
\ninto or tied by a court having
\njurisdiction over any such
\nlocal area”.\n<\/p>\n
 16. Thus it is clear, if the five
\ndifferent acts were done in five
\ndifferent localities any one of the
\ncourts exercising jurisdiction in one of
\nthe five local areas can become the place
\nof trial for the offence under Section
\n138 of the Act. In other words, the
\ncomplainant can choose any one of those
\ncourts having jurisdiction over any one
\nof the local areas within the territorial
\nlimits of which any one of those five
\nacts was done. As the amplitude stands
\nso widened and so expansive it is an idle
\nexercise to raise jurisdictional question
\nregarding the offence under Section 138
\nof the Act”.\n<\/p>\n
 6. In this case, as noticed above, Branch office of
\nthe complainant company is in Delhi; the cheque in
\nquestion was presented to the bank in Delhi and it was
\nreturned un-paid in Delhi; the notice to the petitioners
\nwas given from Delhi; and the failure of the petitioners
\nto pay the amount was in Delhi. Therefore, I have no hesitation in holding that part of the cause of action had
\narisen at Delhi, and the courts in Delhi have jurisdiction
\nto try the complaint.\n<\/p>\n
 7. Learned counsel in support of the proposition
\nthat the courts in Delhi have no jurisdiction had also
\nplaced reliance on the decisions, in  R.K. Jain v. State
\nand Ors. 1998 (1) Crimes 514,  Canbank Finance Services Ltd.
\nv. Gitanjali Motors Ltd. 1995 CRI LJ 1222 and some
\ndecisions of the other High Courts. In my view, after
\nauthoritative pronouncement by the Supreme Court in
\n K. Bhaskaran (supra) reference to other decisions cited by
\nlearned counsel for petitioner is not necessary. Learned
\ncounsel heavily relied upon the observations made by
\nSupreme Court in  Shri Ishar Alloy Steels Ltd. (supra).
\nIn my view, the observations made therein do not answer
\nthe question involved here. In that case, Supreme Court
\nwas considering the question of presentation of the cheque
\nwithin six months from the date on which it was drawn on
\n‘the drawee bank’ either directly or otherwise. It is in
\nthat context that the Supreme Court considered the use of
\ndirect article “The in words “The bank”. It was held
\nthat the cheque must read “The bank” (the drawee bank)
\nwithin six months. The emphasis laid by the learned
\ncounsel on the words ‘a bank’ and ‘the bank’ used in
\nSection 138 of the NI Act, does not help the contention.
\nLearned counsel even argued that there is a typing error
\nin the Supreme Court judgment. There is no merit in this
\ncontention and the same is rejected.\n<\/p>\n
 8. Learned counsel for the petitioners next argued
\nthat except the directors arrayed as accused Nos. 2, 8, 9 and
\n10 in the complaint, remaining seven directors have no
\nconcern with the accused company. They did not enjoy any
\ncontrol over the day-to-day functioning of the company,
\nthat impleading of all directors of the company is an
\nabuse of the process of the court. Reliance was place on
\n Mahendra Pratap Singh Ratra and Anr. v. N.K.
\nMetals and Anr.  and  Vikas Pawha v.\n<\/p>\n
State 1996(4) Crimes 520. Factual situation in these
\ncases was different. In this case there is a clear
\naverment to the effect that the accused 2 to 12 were
\nofficers were in-charge and responsible to the company for
\nthe conduct of day-to-day business at the time of
\ncommission of offence. The Annual Report of the company
\nshowing that all accused persons were active directors was
\nalso filed along with the complaint. (mark “C”). It is
\nessentially a question of fact, which can be decided only
\nafter the parties lead their respective evidence and not
\nat this stage. By virtue of Section 141 of the N.I. Act,
\nthe onus to prove that some of the accused persons were
\nnot responsible for the conduct of the business would be
\non them. There is no merit in the above contention and
\nthe same is rejected.\n<\/p>\n
 9. Learned counsel for the petitioners next argued
\nthat cheque in question had become stale, as after the
\nissuance of the cheque, the accused company made part
\npayment which was accepted by the complainant. Reliance
\nwas place on the letter dated 9th April, 1997 written by
\nthe petitioners to the complainant company by which they
\nhad sent a proposal stating that if the proposal was
\nacceptable, duplicate copy of the same be signed and sent
\nback. He argued that along with the proposal they had
\nalso sent a cheque of Rs. 3,62,866\/-, to the complainant
\nwhich was encashed, therefore, the cause of action did not
\nsurvive. I am unable to agree. In this case the cheque
\ndated 30.9.1997 is for Rs. 50.0 lacs (Rupees fifty lacs
\nonly). It was dishonoured on 17th March, 1998. The
\npetitioners failed to pay the amount despite notice dated
\n28th March, 1998. The payment of Rs. 3,62,866\/- sent vide
\ncheque dated 29th December, 1997 was accepted subject to a
\nfresh cheque for re-payment of the principal amount being
\nissued by the petitioners. That having not been done, it
\ndid not wash away the offence committed on the basis of
\nprevious cheque. In any case, what is the effect of such
\na payment can be appreciated only after trial.\n<\/p>\n
 10. Learned counsel for the petitioners also argued
\nthat the cheque in question was not given for discharge,
\nin the whole or in part of any debt or other liability.
\nIt was given as collateral security, and on the basis of
\nsuch a dishonoured cheque, proceedings under Section 138
\nof N.I. Act are not maintainable. In support of his
\nsubmission, reliance was placed on the decision of the
\nGujarat High Court in  Om Prakash v. Gurucharan Singh
\n1997 (3) Crimes 433. The answer to my mind is simple.
\nSection 139 of N.I. Act states that it shall be presumed
\nunless contrary is proved that the holder of a cheque
\nreceived the cheque of the nature referred to in the
\nSection 138 of the discharge in whole or in part of any
\ndebt or other liability. The Section raises presumption
\nthat cheque was drawn for consideration. This issue was
\nalso settled by several authoritative pronouncements of
\nthe Supreme Court in  Maruti Udyog Ltd. v. Narender and
\nOrs. JT<\/a> 1998 (9) SC 411, and  M.M.T.C. Ltd. v.
\nMedchl Chemicals & Pharma (P) Ltd.,<\/a> ,
\nwherein it was held:\n<\/p>\n
 “15. A similar view has been taken by
\nthis Court in the case of  K.N. Beena v.\n<\/p>\n
Muniyappan reported in 2001(7) Scale 331,
\nwherein again it has been held that under
\nSection 139 of the Negotiable Instruments
\nAct the  Court has to presume, in
\ncomplaint under Section 138, that the
\ncheque had been  issued for a debt or
\nliability.\n<\/p>\n
 16. There is therefore no requirement
\nthat the Complainant must specifically
\nallege in the complaint that there was a
\nsubsisting liability. The burden of
\nproving that there was no existing debt
\nor liability was on the respondents.\n<\/p>\n
This they have to discharge in the trial.
\nAt this stage, merely on basis of
\naverments in the Petitions filed by them
\nthe High Court could not have concluded
\nthat there was no existing debt or
\nliability.”\n<\/p>\n
 The Apex Court rejected the similar contention in recent
\ncase in  A.V. Murthy v. B.S. Nagabasayanna,  and<\/a> it was held:\n<\/p>\n
  “This is not a case where the cheque was
\ndrawn in respect of a debt or liability,
\nwhich was  completely barred from being
\nenforced under law. If for example, the
\ncheque was drawn in respect of a debt or
\nliability payable under a wagering
\ncontract, it could have been said that
\nthat debt or liability is not legally
\nenforceable as it is a claim, which is
\nprohibited under law. This case is not a
\ncase of that type. But we are certain
\nthat at this stage of the proceedings, to
\nsay that the cheque drawn by the
\nrespondent was in respect of a debt or
\nliability, which was not legally
\nenforceable, was clearly illegal and
\nerroneous.”\n<\/p>\n
(emphasis supplied) <\/p>\n
 11. In view of the settled proposition of law, this
\ncontention also stands rejected. No other point was
\nargued.\n<\/p>\n
  12. For the foregoing reasons, I find no merits in
\nthe petition and the same is dismissed. Trial court
\nrecord be sent back forthwith and trial court is directed
\nto expedite the trial.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Lok Housing & Constructions Ltd. vs Raghupati Leasing & Finance Ltd. … on 12 July, 2002 Equivalent citations: 2003 115 CompCas 957 Delhi, 100 (2002) DLT 38, 2002 (64) DRJ 332 Author: S Agarwal Bench: S Agarwal JUDGMENT S.K. Agarwal, J. 1. This petition under Section 397\/401 read with Section 482 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-58670","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nLok Housing & Constructions Ltd. vs Raghupati Leasing & Finance Ltd. ... on 12 July, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/lok-housing-constructions-ltd-vs-raghupati-leasing-finance-ltd-on-12-july-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lok Housing & Constructions Ltd. vs Raghupati Leasing & Finance Ltd. ... on 12 July, 2002 - 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