Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1964 (BOM)

K. K. Suresh v. Mansingaram Jivaram Choudhary

2014-09-09

ABHAY M.THIPSAY

body2014
Judgment : 1. Heard. 2. Admitted and taken up for hearing forthwith by consent. 3. The applicant is the sole accused in Complaint Case No.485/SS/2010 pending before the Metropolitan Magistrate, 14th Court at Girgaum. The said complaint is in respect of an offence punishable under section 138 of the Negotiable Instruments Act (for short 'the N.I. Act'). The respondent no.1 herein is the complainant in the said case. While the trial was in progress, the applicant made an application before the Magistrate titled as "Humble Application of the applicant for challenging jurisdiction of this Hon'ble Court". The applicant contended that on the basis of the evidence that was adduced before the Magistrate during the trial, it was clear that the learned Magistrate had no territorial jurisdiction to entertain the complaint, and try the offence in question. The applicant, therefore, prayed that the order issuing process and the complaint itself be quashed. 4. This application was rejected by the learned Magistrate by an order dated 29th June 2013 holding inter alia that part of the cause of action had arisen in Mumbai, inasmuch as notice of demand of payment in respect of the dishonored cheque had been issued from Mumbai, and further that the registered office of the complainant company was situated in Mumbai. The applicant moved the Court of Sessions by filing an application for revision, challenging the order passed by the Magistrate, but the learned Addl. Sessions Judge agreed with the view of the Magistrate and dismissed the revision application. The Addl. Sessions Judge was also of the view that since the registered office of the complainant company was located in Mumbai, and since the notice of demand in respect of the dishonored cheque was also issued from Mumbai, and since the applicant was called upon to make payment at Mumbai, the Magistrate at Mumbai had jurisdiction to entertain and try the matter. It is being aggrieved by the order passed by the learned Magistrate as also by the Court of Sessions in revision, that the applicant has approached this Court by the present application invoking the inherent powers of the Court. 5. I have carefully gone through the complaint, copy of which is annexed to the application. It is clear that the jurisdiction in the Magistrate at Mumbai has been claimed on the basis that the head office of the complainant company is situated in Mumbai. 5. I have carefully gone through the complaint, copy of which is annexed to the application. It is clear that the jurisdiction in the Magistrate at Mumbai has been claimed on the basis that the head office of the complainant company is situated in Mumbai. It would be appropriate to reproduce the averments in that regard, as are found in paragraph no.5 of the complaint. "The entire transaction has been looked after by head office. The address of head office is also mentioned on each bill. The demand notice of dishonored of cheque has been issued from Mumbai. Hence part of cause of action has been arisen within the jurisdiction of this Hon'ble Court. Therefore, this Hon'ble Court has jurisdiction to try and entertain this complaint." 6. In my opinion, clearly, these factors will not confer jurisdiction on the Courts at Mumbai. 7. Admittedly, the cheque in question was drawn on the bank account of the applicant held by him in ICICI Bank, Malleshwaram Branch, at Bangalore. Thus, the dishonor of the cheque had taken place there. i.e. at Bangalore. Simply because the registered office of the complainant company is situated in Mumbai, and simply because the notice of demand was sent from Mumbai, and/or because the payment was demanded at Mumbai, the Courts at Mumbai will not have territorial jurisdiction to deal with the offence in question. 8. The position in that regard has been made clear by a recent pronouncement of the Supreme Court of India in the case of Dashrath Rathod Vs. State of Maharashtra and Anr. (Criminal Appeal No.2287/09, 2014(9) Scale, Page no.97). The question of territorial jurisdiction with respect to the offences punishable under section 138 of the N.I. Act, was specifically considered by Their Lordships, and it was held, inter alia, that the place where the registered office of the complainant company would be situated, and/or the place where the collecting bank is situated, and/or the place from where a demand notice would be issued by the complainant, would not confer territorial jurisdiction upon the Courts that exercise local jurisdiction over such places/areas. 9. 9. Since the very basis on which existence of jurisdiction in the Magistrate at Mumbai has been claimed in the complaint goes away, and since the cheque was drawn in the applicant's account held by him in a Bank at Bangalore, and since the dishonor of the cheque took place at Bangalore, it is clear that the complaint ought to have been filed in the proper Court at Bangalore. After the pronouncement of the Supreme Court of India in the aforesaid case of Dashrath Rathod (supra), no doubt in that regard can be entertained. 10. The only contention that is advanced by the learned counsel for the respondent no.1 is that the case of the respondent is saved by certain directions given by Their Lordships of the Supreme Court of India in the case of Dashrath Rathod (supra). It is submitted that Their Lordships have made certain observations in paragraph no.20 of the judgment whereby certain proceedings are saved from being transferred on the ground of lack of territorial jurisdiction. The learned counsel for the respondent no.1 submitted that in the present case, the trial before the Magistrate was at the stage of examination of the accused under the provisions of section 313 of the Code of Criminal Procedure (for short 'the Code'). He submitted that as per the directions given by the Supreme Court of India in the aforesaid case of Dashrath Rathod (supra) where a case has travelled beyond the stage prescribed by sub-section (2) of section 145 of the N.I. Act, the proceedings will continue further in the same Court. 10A. I have carefully gone through the relevant observations. 11. In the instant case, the challenge to the territorial jurisdiction of the Magistrate was already given by the applicant by making an application before the Magistrate, and then challenging the order passed by the Magistrate in the Court of Sessions. After having failed there, the applicant has approached this Court challenging the territorial jurisdiction of the learned Magistrate at Mumbai, and this application has remained pending before this Court for quite some time. After having failed there, the applicant has approached this Court challenging the territorial jurisdiction of the learned Magistrate at Mumbai, and this application has remained pending before this Court for quite some time. The observations made by Their Lordships of the Supreme Court of India, in paragraph no.20 of the judgment in Dashrath Rathod's case cannot be construed as being applicable to cases where the challenge to the territorial jurisdiction had already been raised either by way of application before the trial court or by way of revision application, or an application under section 482 of the Code, or by way of a writ petition, and where such challenge was pending before the Court on the date on which the Apex Court made the pronouncement of law in the decision of Dashrath Rathod's case (supra). Obviously, what is held is that based on the decision of the Supreme Court of India in Dashrath Rathod's case, if any application for challenging the territorial jurisdiction is made, then, it would be the stage of that matter in which such challenge is made, that would be relevant. In other words, when a challenge is given to the territorial jurisdiction of a Magistrate after the decision in Dashrath Rathod's case was delivered, and based on that judgment, then the proceedings would not be transferred if they have travelled beyond the stage contemplated by section 145(2) of the N.I. Act. 12. Since in the present case, the challenge to the territorial jurisdiction was already pending, these observations cannot be brought into picture by the respondent to overcome the lack of jurisdiction. At the cost of repetition, it may be observed that the challenge to the territorial jurisdiction was already pending when the judgment in the case of Dashrath Rathod came to be delivered. Therefore, that challenge is to be decided on the basis of the law laid down in the said judgment. 13. The learned counsel for the applicant submits that the respondent also has an office at Bangalore. He also submits that the applicant intends to adduce defence evidence. It would be, therefore, in the interest of justice that further trial of the matter takes place before the proper court at Bangalore. 14. Application is partly allowed. 15. The impugned orders are set aside. 16. He also submits that the applicant intends to adduce defence evidence. It would be, therefore, in the interest of justice that further trial of the matter takes place before the proper court at Bangalore. 14. Application is partly allowed. 15. The impugned orders are set aside. 16. The learned Magistrate shall return the complaint to the respondent no.1 i.e. original complainant for presenting it before the proper court within such time as the learned Magistrate may fix. 17. The learned Magistrate may direct the parties to remain present before the Court at Bangalore where the complaint would be presented by the respondent no.1 if such court can be, and is identified by the parties before the Magistrate. 18. Application is disposed of with the aforesaid terms.