G. MALARVIZHI Vs. P. SAMPATH

JUDGEMENT

(1.) The petitioners have preferred the present petition under Sec. 482 of the Code of Criminal Procedure, 1973 ("Cr.P.C ) for setting aside the summoning order dtd. 10/5/2018, passed by learned Metropolitan Magistrate-02, Patiala House Courts, New Delhi in criminal complaint no. 9794/2018, titled as 'P. Sampath v. M/s Malar Homes and Others' whereby the petitioners were summoned for the offences punishable under Sec. 138 read with Sec. 141 of the Negotiable Instruments Act, 1881.

(2.) The petitioners herein have been arraigned as accused no. 3 to 5 in the complaint under Sec. 138 of Negotiable Instruments Act filed by respondent no. 1. Brief facts of the present case, as disclosed from the complaint, are that accused no.2 to 5 had approached the complainant and had requested for grant of a loan of Rs.70,00,000.00for the purpose of developing the land at Hastinapuram, Chennai. Accordingly, a loan agreement dtd. 20/3/2014 for Rs.70,00,000.00was entered into between the complainant and accused no. 1 i.e. M/s. Malar Homes represented by accused no. 2. Subsequently, the accused persons had defaulted in payment of principal amount as well as the interest on the above-mentioned loan amount. After regular follow ups and requests by the complainant, the accused persons had issued a cheque bearing no. 452597 of Rs.1,32,00,000.00 (Rupees One Crore and Thirty-Two Lakhs) dtd. 6/2/2018, drawn on Punjab National Bank, Tiruchirapalli, Tamil Nadu to the complainant towards discharge of principal debt liability including accrued interest. Following that, the complainant had presented the said cheque for collection on 23/2/2018 at his bank i.e. HDFC Bank, Kailash Building, Kastura Gandhi Marg, New Delhi, but the same upon presentation, had returned unpaid on 26/2/2018. Thereafter, on 23/3/2018, the complainant had sent a legal notice to the accused persons to pay the dishonoured cheque amount within a period of 15 days of the receipt of legal notice. It is alleged that accused persons had sent a false reply dtd. 25/4/2018 to the legal notice of the complainant. Therefore, the present complaint was filed by the complainant and the accused persons were summoned by the learned MM vide summoning order dtd. 10/5/2018.

(3.) Learned counsel for the petitioners argues that it is not clear as to whether the courts in Delhi have jurisdiction to try the present complaint as the respondent had not disclosed in his complaint as to where he had maintained his bank account, so as to attract territorial jurisdiction of the Trial court concerned. It is also argued that the present petitioners were not in-charge of day-to-day affairs of the accused firm, nor were they signatory to the cheque in question. It is argued that petitioner no. 2 and 3 had resigned much before the issuance of the cheque and, thus, they could not have been summoned by the learned MM. It is also argued that the impugned summoning order suffers from illegality as no inquiry under Sec. 202 of Cr.P.C. has been conducted by the learned MM before issuing summons to the petitioners herein, who are residents of Tamil Nadu which is outside the jurisdiction of Delhi, which was compulsory as per judgment of Abhijit Pawar v. Hemant Madhukar Nimbalkar (2017) 3 SCC 528. Lastly, it is stated that respondent has also concealed the fact that the loan amount was duly secured by way of mortgage and the respondent deliberately chose not to enforce to the same.