Section 138 of NI Act – Cheque of Foreign Bank payable in UAE currency – Transaction in UAE – Cheque presented in the ICICI Bank in India, dis-honoured and complaint filed in Court in India –
The transaction in question admittedly took place in UAE, the cheque was drawn on Dubai based branch of a UAE Bank, there is no endorsement on the cheque that it is payable in India, the cheque is payable in the currency of UAE, the respondent no.2 was a resident of UAE at the time when the transaction had taken place, the petitioner no.1 on whose behalf the cheque was issued a company incorporated in UAE and the petitioner nos.2 and 3 were also at UAE at the time of the issuance of the cheque.
In the first instance, on return of some of the cheques as unpaid, the respondent no.2 had earlier filed proceedings before Abu Dhabi Courts of First Instances and orders were also passed in favour of the respondent no.2. It is only on non-compliance / non-implementation of the said orders that the respondent no.2 thereafter presented the subject cheque to his ICICI bank account at New Delhi which was dishonoured for insufficient funds.
Thereafter, the respondent no.2 filed the complaint under Section 138 of NI Act.
It was contended that on a conjoint reading of sections 68, 69 and 70 of the NI Act, the respondent no.2 was within his rights to present the cheque for payment at his bank account at Delhi.
The complaint for quashing the complaint was filed after five years when the stage was for evidence.
HELD that the cheque in question was “foreign instrument” within the meaning of section 12 of the NI Act. Sections 134 to 137 in Chapter XVI govern the international law applicable to the foreign instrument. Though Section 134 states that in the absence of a contract to the contrary, the liability of the drawer of a foreign cheque is regulated in all essential matters by the law of the place where he made the cheque, there is nothing in the said provision which would exclude the application of Section 138 read with Section 142 of the NI Act.
There was no prohibition of the cheque being deposited by the respondent no.2 for collection in Delhi. Therefore, as per Section 142(2) of the Act, the Delhi Court shall have jurisdiction to try the complaint of Section 138 NI Act. Merely because the payee or holder in due course of a foreign cheque chooses to present the cheque in India out of mala fide, the application of Section 138 and the jurisdiction of Delhi Court is not ousted.
It is the case of the complainant / respondent no2 that the petitioner nos.2 and 3 escaped from the jurisdiction of the Courts at Dubai and have come to India.
Judgment dated 2.4.2024 of the Delhi High Court in CRI M.C.6853/2022 and CRL.M.A.26554/2022 – Right Choice Marketing Solutions JLT & others Vs. State NCT of Delhi and another
