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2010 DIGILAW 2631 (ALL)

YASHPAL v. STATE OF U. P.

2010-08-28

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard the learned counsel for the petitioner Yashpal, the learned AGA for respondent Nos. 1, 2 and 3 and perused the record. 2. It appears that the petitioner’s application under Section 156 (3) CrPC was rejected by the learned Additional Chief Judicial Magistrate, Court No. 1, Ghaziabad, on 6.11.2008 on the ground that the Courts at Ghaziabad had no jurisdiction. Criminal Revision No. 32 of 2009, Yashpal v. Inder Sharma and others, filed by the petitioner was also dismissed by the Additional Sessions Judge, Court No. 1, Ghaziabad on 3.3.2010. 3. The relevant facts, as alleged in the complaint, are that the petitioner is the owner of Yashpal Construction Company having its registered office at Ghaziabad, which is involved in the construction work. The respondent No. 4, M/s. Nutek India Limited is also a construction company and respondent Nos. 5, 6 and 7 are its officers. The respondent No. 4 has undertaken construction of the thermal power plant of Tata Project at Kota (Rajasthan). The respondent No. 4 sent an e-mail to the petitioner on 20.11.2007 for construction of the aforesaid project. Thereafter, the petitioner sent its quotation on 23.11.2007 and after negotiation the respondent No. 4 gave purchase order on 11.12.2007. In lieu of the purchase order, the respondent Nos. 4 to 7 received Rs. 3,16,000/- from the petitioner at his Ghaziabad office. The petitioner, thereafter, purchased machinery from Ghaziabad and other materials from Kota and handed over to the respondent Nos. 4 to 7 at the site at Kota where the petitioner started work and constructed an office and labour residences but he was not paid any money despite handing over of the bill amounting to Rs. 14,89,516.67 due to bad intention the respondent Nos. 4 to 7 conspired against the petitioner and played fraud on him and kept the machinery and materials with them and are working continuously in violation of the agreement. 4. The learned counsel for the petitioner submitted that the machinery, which was supplied to the respondent No. 4 for the work to be carried out at Kota (Rajasthan), was purchased in Ghaziabad. Moreover, the earnest money of Rs. 3,16,000/- was also received at Ghaziabad, therefore, a part cause of action arose within the territorial limits of the Courts at Ghaziabad, hence the application under Section 156 (3) was maintainable. 5. The learned counsel appearing for the respondent Nos. Moreover, the earnest money of Rs. 3,16,000/- was also received at Ghaziabad, therefore, a part cause of action arose within the territorial limits of the Courts at Ghaziabad, hence the application under Section 156 (3) was maintainable. 5. The learned counsel appearing for the respondent Nos. 4 to 7, on the other hand, submitted that according to the agreement the work was to be carried out at Kota (Rajasthan) by the petitioner company and the machinery as well as building materials are alleged to have been supplied and delivered to the respondent No. 4 at Kota and this fact has been very clearly stated in the complaint, therefore, no cause of action arose at Ghaziabad. 6. The learned counsel for the respondent Nos. 4 to 7 further submitted that the complaint is silent as to where the purchase order was delivered to the petitioner. If Rs. 3,16,000/- was paid at Ghaziabad, it has no material significance in regard to the alleged breach of promise at Kota. Mere payment of the said amount at Ghaziabad is not in any way a part of the cause of action. 7. The question of territorial jurisdiction is liable to be determined on the basis of the allegations made in the application moved under Section 156(3) CrPC. No doubt, according to the contents of the complaint most of the cause of action accrued at Kota, where assigned work was to be carried out by the petitioner and the machinery and building material were also delivered. But it is also stated in the application that earnest money of Rs. 3,16,000/- was paid at Ghaziabad and as such according to the petitioner, a part cause of action arose within the limits of the Courts at Ghaziabad. The Courts below have failed to consider this aspect of the matter and proceeded to reject the application on the premise that entire cause of action arose at Kota (Rajasthan). In my opinion, the Courts below should have analysed the fact stated in the complaint filed under Section 156 (3) CrPC and to see whether or not any part of the cause of action arose within the local limits of Courts at Ghaziabad. If a part cause of action arose there, the Magistrate concerned had jurisdiction to pass appropriate order on the application. 8. If a part cause of action arose there, the Magistrate concerned had jurisdiction to pass appropriate order on the application. 8. According to Section 177 CrPC, every offence shall ordinarily be inquired into or tried by a Court within whose local jurisdiction it was committed. According to Section 178 CrPC, when it is uncertain in which of several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, the offence may be inquired into or tried by a Court having jurisdiction over any of such local areas. According to Section 179 CrPC, when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. Section 181 CrPC provides for place of trial in respect of certain offences and sub-section (4) thereof seems to be relevant in this case,which provides for place of trial in respect of offences of criminal misappropriation or criminal breach of trust. Sub-section (4) of Section 181 CrPC provides that any offence of criminal misappropriation or of criminal breach of trust may he inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. Section 182 (1) CrPC also seems to be relevant in this case in view of the fact that certain correspondences also took place between the parties. Section 182 (1) provides that any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person. 9. 9. In the case of Rasiklal Dalpatram Thakkar v. State of Gujarat and others, (2010) 1 SCC 1 , the Apex Court has considered the ambit and scope of Section 181 (4) CrPC and propounded that sub-section (4) only indicates that an inquiry or trial of an offence of criminal misappropriation or criminal breach of trust can be conducted by a Court within whose jurisdiction the offence had been committed or any part of the property forming the subject matter of the offence is received or retained or was required to be returned or accounted for by the accused person. 10. In the aforesaid case of Rasiklal (supra) no doubt the Apex Court has held that the question of territorial jurisdiction of the Magistrate is a matter when case is filed in the Court. There is no justification to consider the question of territorial jurisdiction at the stage of investigation. But the position in this case is somehow different, the jurisdiction of the Magistrate to entertain the application under Section 156 (3) CrPC and passing of an appropriate order thereon is involved in this case. Under Section 156 (3) CrPC only the Magistrate having jurisdiction to take cognizance under Section 190 has power to direct for police investigation. The Magistrate having no territorial jurisdiction to inquire into or try an offence as contemplated in various sections incorporated in chapter XIII of CrPC, cannot be said to have power to take cognizance under Section 190 CrPC in regard to the offence or offences disclosed in the application moved under Section 156(3) CrPC. Therefore, while considering an application under Section 156 (3) the Magistrate is required to see whether he has jurisdiction under Section 190 CrPC to take cognizance of the offence or offences disclosed in the application filed under Section 156(3) CrPC, and if the answer is in negative, the power under Section 156(3) CrPC cannot be invoked. Once an order under Section 156(3) CrPC is passed the police cannot deny to make investigation on the ground that it has no power to investigate on account of lack of territorial jurisdiction and this is the principle what has been propounded in Rasiklal’s case (supra). 11. Once an order under Section 156(3) CrPC is passed the police cannot deny to make investigation on the ground that it has no power to investigate on account of lack of territorial jurisdiction and this is the principle what has been propounded in Rasiklal’s case (supra). 11. It appears that the learned Additional Chief Judicial Magistrate, Ghaziabad has not considered the question of territorial jurisdiction in its correct perspective in the light of various provisions of Code of Criminal Procedure referred to in this judgment. Therefore, the matter has to go back to the learned Additional Chief Judicial Magistrate, Ghaziabad for a fresh decision. 12. Moreover, the Courts below had not considered the application under Section 156 (3) CrPC on merit and had not seen as to whether the complaint discloses commission of any cognizable offence or not. In case, the Magistrate concerned ultimately arrives at the conclusion that Courts at Ghaziabad have territorial jurisdiction, in that event, the Magistrate has to see as to whether the application moved by the petitioner discloses commission of any cognizable offence or not. If the application does not disclose commission of any cognizable offence and the matter is of civil nature, it will be open to the Magistrate to reject the application despite the fact that a part cause of action arose within his territorial jurisdiction. For the reasons disclosed above, the instant writ petition is allowed. The impugned orders dated are quashed and the Additional Chief Judicial Magistrate, Ghaziabad is directed to reconsider the matter and pass a fresh order in accordance with law. —————