SHALINI ENTERPRISE Vs. INDIABULLS FINANCIAL SERVICES

JUDGEMENT

(1.) This petition under section 482 Cr.P.C. has been filed for quashing of complaint No. 5091 dated 11.10.2010/15.12.2010 titled as Indiabulls Financial Services Ltd. v. Shalini Enterprise & Anr. under section 138 /142 of the Negotiable Instruments Act, (hereinafter referred to as the 'Act') pending in the court of Judicial Magistrate Ist Class, Gurgaon, (Annexure P-4); summoning order dated 11.10.2010 (Annexure P-5) and all the subsequent proceedings arising therefrom. The brief facts of the case, as set out in the complaint are that the petitioners availed loan of Rs. 20 lacs from the respondent-Company, engaged in the business of disbursement of various kinds of loans and promised to make regular EMI for the return of loan. The respondent-company is having its Corporate office at Indiabulls House, 448-451, Udyog Vihar, Phase-V, Gurgaon. In discharge of aforesaid loan liability, the petitioner issued cheque No. 854718 dated 27.7.2010 for a sum of Rs. 20 lacs drawn on Canara Bank, Sealdah, Kolkata in favour of the respondent-company. The petitioner assured that the cheque would be honoured on presentation. The respondent-company presented the cheque with its Banker ING Vysya Bank Ltd. Gurgaon for encashment. The said cheque was dishonoured and returned vide memo dated 10.8.2010 with the remarks "Insufficient Funds". The respondent-company issued legal demand notice to the petitioner. Despite the notice, the petitioners did not pay the cheque amount to the respondent-company, even after the statutory period of 15 days. Thus, a complaint (Annexure P4) under section 138 of the Act was filed against the petitioners in the court of Judicial Magistrate Ist Class, Gurgaon. The Judicial Magistrate, Ist Class, Gurgaon vide order dated 11.10.2010 (Annexure P5) summoned Shalini Enterprise and Shalini Mehra (petitioners herein) to face trial under section 138 of the Act, Subsequently the present petition was filed for quashing the complaint (Annexure P4) and summoning order (Annexure P5).

(2.) In the background of the factual matrix detailed herein before, the short issue that arises for consideration is whether the Court at Gurgaon is competent to try the Complaint u/s. 138 of the Act.

(3.) It is not in dispute that the cheque was presented for encashment at Gurgaon. The plea of the petitioner is that the entire business transaction including the taking of the loan and deposit of security cheques took place in Kolkata and hence, the respondent can not create jurisdiction of the Gurgaon Court simply because depositing the cheque (for encashment) at a place, other than the place of its issuance. In support of his plea, the Ld. Counsel for the Petitioner principally relies on M/s. Harman Electronics (P) Ltd. and another v. M/s. National Panasonic India Limited, 2009 1 RCR(Cri) 458. His additional plea is that the cheque which was presented for encashment was actually a security cheque and hence no liability would arise by dishonour of such a cheque.