- (1.) THE aforesaid petitions are being disposed of by a common order as these involve identical questions of law and facts for adjudication. For the sake of convenience, facts are being taken from CRM -M - 12181 of 2012.
(2.) COUNSEL for the petitioners has prayed for quashing of the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") initiated by M/s Jenson and Nicholson (India) Limited (respondent) (hereinafter referred to as 'company') primarily on three grounds: - (1) The cheques in dispute were issued more than one year prior to its presentation to the bank for encashment towards security and not in discharge of any legally enforceable debt or liability. (2) The trial court has not complied with the provisions of Section 202 of the Code of Criminal Procedure (for short "Cr.P.C.") as the enquiry was not conducted in compliance thereof. (3) The court at Gurgaon does not have the territorial jurisdiction to entertain and try the proceedings.
(3.) TO substantiate his contention raised at point No. 1, counsel would submit that admittedly the cheque was issued in the month of May 2010 but it has been presented to the bank in the year 2011 more than six months from the date on which the same was drawn, thus, the provisions of Section 138 of the Act are not attracted, therefore, the criminal proceedings are liable to be quashed. In addition, it has been submitted that the cheques were issued as security and not in discharge of any legally enforceable debt or other liability, therefore, dishonouring of the cheques with the remarks "payment stopped" cannot attract penal provisions under Section 138 of the Act. Counsel further argues that the trial court before passing the summoning order did not conduct enquiry in compliance with the provisions of Section 202 Cr.P.C., therefore, the summoning order (Annexure P -35) is liable to be set aside. Another submission made by counsel is that the cheques in dispute were admittedly issued by the petitioner -firm at Ludhaina and the same were presented to the bank at Delhi, therefore, the Court at Gurgaon does not have the territorial jurisdiction to try the present case. Counsel for the respondent, on the contrary, contends that the petitioner firm M/s Deep Hardware Store, near Aarti Cinema, Ludhiana, Punjab through its proprietor Mr. Sushil Aggarwal had dealings with the respondent for the past few years as they had been receiving supplies of paints etc. from the respondent. The petitioners had an outstanding liability towards the respondent and in discharge thereof, it issued 08 cheques of different value totaling an amount of Rs.7,31,000/ - and the cheques were undated but the respondent was given an authority to fill in the date before presenting the cheques for encashment. It is further submitted that the disputed questions of fact raised by the petitioners cannot be adjudicated in proceedings under Section 482 Cr.P.C. and the same are to be decided by the trial court on the basis of evidence to be led by the parties. With regard to compliance of the provisions of Section 202 Cr.P.C., it is contended that the court took cognizance of the offence, recorded evidence during preliminary enquiry and thereafter, issued process summoning the petitioners. It is argued that the petitioners have admitted issuance of cheques but raised certain disputed questions of fact and there is no other mechanism available to the court except to conduct a preliminary enquiry by itself in such like cases, therefore, no fault can be found in the summoning order passed by the court below. To refute the contentions of the petitioners in regard to territorial jurisdiction of the Court, it is submitted that the respondent presented the cheques to its banker in Gurgaon which were later sent to the concerned bank at Delhi for collection and the complainant received intimation from the bank that the cheques have been dishonoured with the remarks "payment stopped". As the cheques were presented in a bank at Gurgaon, the Court at Gurgaon has the territorial jurisdiction as cause of action has arisen within the local jurisdiction of the said court. I have heard counsel or the parties and perused the records.;