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2003 DIGILAW 85 (KAR)

M. Vasanth v. Kanoria Industries Limited

2003-01-24

MANJULA CHELLUR

body2003
ORDER Manjula Chellur, J.--This Petition is filed by the Petitioner-accused before the trial Court contending that the Civil Judge (Junior Division) and Ist Additional J.M.F.C., Bagalkot, had no territorial jurisdiction to take cognizance of the offence under Section 138 of the Negotiable Instruments Act ('the Act' for short). 2. According to the Respondent-complainant for the supply of cement at Uppinangadi to the Petitioner herein he became due some amount and ultimately issued a cheque for Rs.1,40,585-00 ps. dated 20.11.1998 bearing No. 013245 to the Respondent. Cement was supplied by the complainant, for Bagalkot by dispatching to Uppinangadi by a truck to the firm as alleged in the complaint. The complainant presented the said cheque for payment through Syndicate Bank, Mangalore, where it had an account. When it was sent for clearance, it was returned by Syndicate Bank, Uppinangadi with endorsement that funds insufficient. Then after issuing a mandatory notice a complaint came to be filed at Bagalkot. The learned Judge, after perusing the sworn statement and other documents took cognizance of the offence had issued summons to the Petitioner herein which is under challenge before this Court. 3. The main contention is lack of territorial jurisdiction as none of the acts pertaining to the cheque as held by the Apex Court were complied or had occurred at Bagalkot. Therefore, the proceedings have to be quashed. It is well settled the complainant can choose any one of the Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of the following acts have occurred. 1) Drawing of the cheque. 2) Presentation of the cheque. 3) Returning of the cheque anybody by the Drawer Bank. 4) Giving of notice in writing to the Drawer of the cheque due payment of the cheque amount. 5) Failure of the drawer to make payment within fifteen days of the receipt of the notice. 4. Admittedly, all these acts in the present case have either occurred at Uppinangadi or Mangalore. But the complaint is filed in the Court at Bagalkot. No doubt, the J.M.F.C. who took cognizance at Bagalkot do not lack inherent jurisdiction to take cognizance of such offence. If it was a situation where one of the five acts narrated above did happen within the local limits or area in which the Court is situated he would have had the jurisdiction to entertain the matter. No doubt, the J.M.F.C. who took cognizance at Bagalkot do not lack inherent jurisdiction to take cognizance of such offence. If it was a situation where one of the five acts narrated above did happen within the local limits or area in which the Court is situated he would have had the jurisdiction to entertain the matter. Now there is lack of territorial jurisdiction only. One has to see what happens in such a situation. Similar situation arose in a matter pertaining to Kerala which came to be disposed of by their Lordships on 1.4.1998 in Criminal Appeal No. 279/1994 (Itty Mathew v. Ramani) reported in Judgment on dishonour of cheques. Paras-14 and 15 are relevant which read as under: 14. In this case, the Respondent has no contention that any failure of justice will be caused by the trial of the case before the lower Court. Moreover, the Respondent had no contention at all that the Court has no jurisdiction till the entire evidence was recorded and the matter was being heard. Therefore, Section 462 of the Code of Criminal Procedure is squarely applicable to the facts of this case. 15. Even if the lower Court found that it had no jurisdiction to try the case, it is not at all justified in finding the Respondent not guilty and acquitting her. if at all the lower Court should have followed the procedure provided under Section 201 of the Code of Criminal Procedure If it was of the view that the Court had no jurisdiction to take cognizance of the offence in which case the complaint should have been returned for presentation to the proper Court with an endorsement to that effect. Therefore, in that view, also the lower Court was in error in finding the Respondent not guilty and acquitting her. 5. In another Judgment reported in the case of A. Vinayagam and 3 others Vs. Dr. Subash Chandran and another, (2000) CriLJ 1579 the Division Bench of the Hon'ble High Court of Chennai at relevant para-22, held as under: 22. Turning now to the cases at hand, it is clear that the complaints in both the cases were filed in time. There is no dispute about the same. The Magistrate in both the cases have returned the papers to the complainants by making some endorsements thereupon. The learned Counsel Mr. Turning now to the cases at hand, it is clear that the complaints in both the cases were filed in time. There is no dispute about the same. The Magistrate in both the cases have returned the papers to the complainants by making some endorsements thereupon. The learned Counsel Mr. Packiaraj urged that those endorsements amounted to rejection of the complaints under Section 203 of the Code of Criminal Procedure and therefore, the complainants should have filed further proceedings, challenging those endorsements, treating them to be judicial orders. In the first place, the said endorsements could not be termed to be judicial orders. They could at the most be termed to be administrative orders. Any judicial order could have been passed by the Magistrate, at that stage, only after examining the complainant and/or his witnesses. Without that, the Magistrate had no jurisdiction to pass any orders. Therefore, those order cannot be simply described as the judicial orders and consequently, the complainants cannot be held guilty for not challenging them in the proper forum by way of a revision or appeal, as the case may be. Those orders would have to be deemed as non est orders. Even if they can be termed to be the judicial orders, they were completely without jurisdiction as we have already show. Not only this, the Magistrates, fixing their own procedure, also chose to return the complaints and again without fixing the date for re-presentation of the complaints. If then the complainant chose his time to represent the complaint, could the complainant be blamed. It is the cardinal principle of law that the act of Court should not prejudice any one. "Actus curiae neminem gravabit". The Supreme Court has reiterated this principle in Jang Singh Vs. Brijlal and Others, AIR 1966 SC 1631 . There the Supreme Court had refused to find fault with a party, who had made (sic) payment by one rupee, for which the Court was Responsible. We would choose the same course by holding that once the complaints were filed within limitation, merely because the Magistrates, completely contrary to the procedure known to law, chose to return the same without fixing the date for re-presentation, it should not be held that the subsequent filing by the complainants would be held to be beyond limitation. We would choose the same course by holding that once the complaints were filed within limitation, merely because the Magistrates, completely contrary to the procedure known to law, chose to return the same without fixing the date for re-presentation, it should not be held that the subsequent filing by the complainants would be held to be beyond limitation. We therefore, answer the reference by holding that the date, which is to be taken into account, would be the date on which the complaints were initially presented. They being within limitation, the complaints would have to be held as validly filed and on that count the accused cannot claim any benefit. We also hold that the act on the part of the Court of taking cognizance of the complaints has no concern with the date of filing of the complaint on a proper reading of Section 142(b). 6. In this case the question was when once a complaint is returned by Magistrate for defects to be rectified what happens to the limitation in so far as the second complaint. Their Lordships have held that such complaint will still be within the time provided under the Act and the accused cannot be given a benefit to claim protection on such point or count. 7. In the present case definitely, the learned Judge at Bagalkot had no territorial jurisdiction to entertain the matter. As already stated above, he did have inherent jurisdiction to entertain the matter. 8. Under these circumstances, this Petition is disposed of quashing the proceedings before the Magistrate at Bagalkot with a direction to the Magistrate to return the complaint to the complainant for presentation to the proper Court. The Court before which such presentation is done will entertain the matter holding that there is limitation to entertain the matter. The complainant shall appear and take back the papers at Bagalkot Court on or before 5.2.2003 and period of 30 days contemplated under the Act shall start running from that day after deducting the period already spent before presenting the complaint at Bagalkot.