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2009 DIGILAW 689 (JK)

Mir Engineers & Builders v. Sanjay Diesels

2009-12-24

SUNIL HALI

body2009
1. Petitioner seeks transfer of criminal complaint titled M/S Sanjay Diesels v. M/S Mir Engineers and Builders, pending before learned Chief Judicial Magistrate, Kathua, to any court of competent jurisdiction at Srinagar. 2. A complaint under Section 138 of the Negotiable Instrument Act has been filed before learned Chief Judicial Magistrate Kathua by the respondent alleging therein that cheque amounting to Rs. 73,35,000/-, when produced before the Drawee Bank, was returned with an endorsement that the payment has been stopped. It seems that present petitioner had sought quashment of the proceedings before this Court by filing a petition under Section 561-A Cr.P.C, which petition has since been rejected vide order dated 25.05,2009. 3. Instant application has been filed seeking transfer of complaint from the Court of learned Chief Judicial Magistrate Kathua to any court of competent jurisdiction at Srinagar, on the ground that the court at Kathua lacks jurisdiction to entertain the complaint. 4. The contention of the petitioner is that cause to file the complaint arises only after statutory notice is received by him at a place where he resides or where the notice has been sent. According to the facts revealed from the record, notice has been received by the petitioner at Srinagar and on his failure to make the payment the cause also arises at Srinagar and, as such, the Courts at Srinagar alone has the jurisdiction to try the complaint. He has placed reliance on a judgment of the Apex Court reported in AIR 2009,SC, 1168 entitled M/S Harman Electronics (P) Ltd and anr v. M/S National Panasonic India Ltd. While placing reliance on the said judgment, learned counsel states that earlier view held by the Apex Court in 1999 AIR SCW 3809 entitled K. Bhaskaran v. Sankaran Vaidhyan Balan and another, has been over set by holding that the cause to file the complaint would arise only in the court where the notice has been received by the accused. He contends that if the ingredients for constitution of offence laid down in the proviso (a), (b) and (c) appended to Section 138 intended to be applied in favour of the accused, there cannot be any doubt that the receipt of notice would ultimately give rise to the cause of action for filing the complaint. 5. He contends that if the ingredients for constitution of offence laid down in the proviso (a), (b) and (c) appended to Section 138 intended to be applied in favour of the accused, there cannot be any doubt that the receipt of notice would ultimately give rise to the cause of action for filing the complaint. 5. On the other hand, the contention of the respondents counsel is that what has been stated in the aforementioned judgment is that once the accused fails to pay the amount demanded by issuance of statutory notice to him, it is the place where the amount has to be paid by the accused where the cause would arise. In short his contention is that failure on the part of the accused is to be co-related to a place where the amount has to be paid and not where the notice has been received. I have heard learned counsel for the parties. 6. While exercising power under Section 526 of the Criminal Procedure Code, the court is required to take cognizance in the matter only if fair trial is not possible at a place where the case is being tried or it is causing general inconvenience to the parties or to the witnesses. 7. The jurisdictional aspect raised by the petitioner may not be the domain of this Court while hearing a petition under Section 536 CR.P.C. Since the power exercisable by the Court has to conform to the provisions under which the said power is exercised, it clearly excludes the power of the Court to enter into the arena where the question of jurisdiction is required to be determined. This question can be agitated by the parties before the trial Court who is seized of the matter. 8. Coming to the question as to whether the case is required to be transferred or not, both the parties showed their willingness to have the matter transferred to any Court at Jammu, in case the question of jurisdiction cannot be addressed by this Court. 9. Since I am not entering into the question as to whether the Court at Kathua has the jurisdiction or not, it would be proper to transfer the case from the file of learned Chief Judicial Magistrate Kathua to the court of learned Chief Judicial Magistrate Jammu. 9. Since I am not entering into the question as to whether the Court at Kathua has the jurisdiction or not, it would be proper to transfer the case from the file of learned Chief Judicial Magistrate Kathua to the court of learned Chief Judicial Magistrate Jammu. The record be accordingly transmitted to learned Chief Judicial Magistrate Jammu, where the parties are directed to appear on 03.02.2010. 10. A copy of this order be also transmitted to learned Chief Judicial Magistrate Kathua for his information. Petition is, accordingly, disposed of.