2023 (7) TMI 1105 - HC - Indian Laws

Dishonour of Cheque - accused persons were summoned by the learned MM - accused resides beyond the jurisdiction of the territory of the Court - no inquiry carried out by the learned MM - HELD THAT - In view of the decision of Hon ble Apex Court in Sunil Todi v. State of Gujarat 2021 (12) TMI 175 - SUPREME COURT , the Magistrate while considering the complaint in relation to offence under Section 138 of Negotiable Instruments Act under Section 202 of Cr.P.C., in case where an accused resides outside the jurisdiction of the Court, is not required to examine the witness on oath for conducting the enquiry as contemplated under Section 202 of Cr.P.C., rather can itself advert to the documents and evidence by way of affidavit filed on record by the complainant and reach a satisfaction as to whether the accused should be summoned or not. A perusal of the impugned order reveals that the learned MM has considered the contents of the complaint, the documents annexed thereto, the affidavit filed by the complainant as well as the submissions made by the learned counsel for the complainant and only thereafter, having been satisfied that prima facie case existed against the accused persons, had issued summons to the accused persons. Having considered the same, this Court does not find any illegality or perversity in the impugned order as far as conformity of the same with Section 202 of Cr.P.C. is concerned, especially in light of the judicial precedents of Hon ble Apex Court. Jurisdiction - HELD THAT - It is not in dispute that the cheque in question was presented by the complainant/ respondent no. 1 at HDFC Bank,Kailash Building, No. 26, Kasturba Gandhi Marg, New Delhi-110001 which is situated within the territorial jurisdiction of Delhi and the cheque had got dishonoured upon presentation with the said bank. Thus, the courts in Delhi would have the jurisdiction to try the present complaint. Next claim is petitioner no. 2 and 3 had resigned from the accused firm before the issuance of cheque in question dated 06.02.2018 and its subsequent dishonor on 26.02.2018 - HELD THAT - This Court can reach only one conclusion that the issues raised before this Court are all triable issues, which would require detailed consideration of the documents as per law, which may include all the relevant document pertaining to the resignations if any of the petitioners, and as to what role they had in issuance of cheque in question and dishonour of the same - However, as prima facie apparent from the records of the case, the complainant in the complaint under Section 138 of Negotiable Instruments Act has specifically averred that the accused firm represented by its Managing Director i.e. accused no. 2along with the other accused persons, including the petitioners, had approached the complainant for grant of loan and all the partners in connivance with each other had issued the cheque in question for repayment of the said loan. It was also averred that the present petitioners were active partners of the accused firm and, thus, were liable for the issuance as well as dishonour of the cheque in question. This Court cannot hold anything contrary to what has been pleaded by the complainant as the same would require scrutiny of the relevant materials and documents as well as examination of witnesses by the concerned Court during the course of trial. The petitioners have failed to bring on record any unimpeachable material or material of sterling quality to show that they had resigned from the accused firm or were not responsible for day-to-day affairs of the firm when the cheque was issued or dishonored or that the dishonoring of cheque in question was not attributable to any negligence or connivance or consent on their part - there are no reasons to interfere with the impugned summoning order, the present petition stands dismissed. Petition dismissed.

Summary

Issues Involved:
1. Legality of the summoning order under Section 202 Cr.P.C.
2. Territorial jurisdiction of the Delhi courts.
3. Resignation of petitioners from the accused firm before cheque issuance.

Summary:

1. Legality of the Summoning Order under Section 202 Cr.P.C.:
The petitioners argued that the summoning order dated 10.05.2018 was illegal as no inquiry under Section 202 Cr.P.C. was conducted by the learned MM before issuing summons, despite the petitioners residing outside Delhi. The court referred to the decision in *Sunil Todi v. State of Gujarat* (2021 SCC OnLine SC 1174), which clarified that for offenses under Section 138 of the Negotiable Instruments Act, the Magistrate is not required to examine witnesses on oath but can rely on documents and affidavits filed by the complainant. The court found that the learned MM had considered the complaint, documents, and affidavits before issuing the summons, thus complying with Section 202 Cr.P.C. The court concluded there was no illegality or perversity in the summoning order.

2. Territorial Jurisdiction of the Delhi Courts:
The petitioners contested the jurisdiction of Delhi courts, arguing that the respondent did not disclose where the bank account was maintained. The court noted that the cheque was presented and dishonored at HDFC Bank, Kailash Building, Kasturba Gandhi Marg, New Delhi, which falls within the territorial jurisdiction of Delhi. Therefore, the Delhi courts have jurisdiction to try the complaint.

3. Resignation of Petitioners from the Accused Firm Before Cheque Issuance:
The petitioners claimed that they had resigned from the accused firm before the cheque issuance. Petitioner no. 2 allegedly resigned on 01.01.2016, and petitioner no. 3 on 30.01.2018. However, the court observed discrepancies in the documents presented by the petitioners, such as different dates on the resignation deeds and the absence of any notification to the Registrar under Section 63 of the Indian Partnership Act, 1932. The court found these issues to be triable, requiring detailed examination during the trial. The court emphasized that the complainant had averred that the petitioners were active partners involved in issuing the cheque, and no unimpeachable material was provided by the petitioners to prove otherwise.

Conclusion:
The court dismissed the petition, finding no reason to interfere with the summoning order. It clarified that the observations made were solely for deciding the petition and would not affect the merits of the case during the trial. Pending applications were also dismissed.