- (1.) By filing this petition under Section 482 of the Code of Criminal Procedure, the petitioners-accused seek quashing of (i) the complaint under Section 138 of the Negotiable Instrument Act (for short 'the Act') titled Indiabulls Financial Services Limited v. M/s M. Aggarwal Creation Private Limited and another and; (ii) order dated March 31st, 2011 passed by Judicial Magistrate First Class, Gurgaon whereby his application for transfer of case to the court at Surat, was declined. The petitioner also seeks transfer of the case from Gurgaon to Surat (Gujarat).
(2.) Indiabulls Financial Services Limited (hereinafter referred to as "the complainant") filed complaint against M. Aggarwal Creation Private Limited (hereinafter referred to as "the accused") under Section 138 of the Act before the Court of Judicial Magistrate First Class, Gurgaon. It was alleged that the complainant is a company as per the provisions of the Companies Act, 1956. It deals in providing loans. Govind Motilal Aggarwal-respondent No. 2 is Director of accused No. 1. He approached the complainant to provide him a loan of rupees twenty five lacs under the scheme of business loan. Vide loan account No. LSMESRT00005528, loan of rupees twenty five lacs was sanctioned and paid to the accused. The accused was to pay the loan amount in monthly installments. On October 15th, 2009 in partial discharge of the liability, the accused issued a cheque of Rs. 73,437/- drawn on Standard Chartered Bank, C. K. Tower, 1st Floor, Near Sargam Shopping Centre, Parle Point, Surat in favour of the complainant. The complainant presented the cheque before ING Vysya Bank Limited, Gurgaon but the same was returned dis-honoured with the remarks "Account closed". On November 25th, 2009, the complainant served legal notice upon the accused calling upon him to make payment within a period of 15 days but despite that the accused did not make the payment. Hence, the complaint.
(3.) The solitary contention of learned counsel for the accused is that the Court at Gurgaon has no jurisdiction to try the case because the cheque was drawn at Surat and the accused holds his account in Bank at Surat. While developing his argument, learned counsel for the petitioners urged that the word 'the banker' occurring in Section 138 of the Act refers to the bank of the accused. To make the accused liable for the offence, the cheque must be presented in the bank of the accused either by the complainant personally or through his agent, that is, his own bank.;