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2019 DIGILAW 97 (KAR)

PRAKASH v. IRANNA GANGAPPA KOTAGI

2019-01-08

H.P.SANDESH

body2019
JUDGMENT H.P. SANDESH, J. 1. I have heard the arguments of the petitioner's counsel and also counsel for the respondents. 2. The factual matrix of the case is that the respondent herein has field a case against the petitioner under Section 138 of N.I. Act r/w Section 148 of N.I.Act in P.C.No.87/2013. Subsequently, the said private complaint was transferred from the Principal JMFC, Kittur to the Principal JMFC Court at Bailhongal, and later on, the said case was made over to the Additional Civil Judge (Jr.Dn) & JMFC, Bailhongal. 3. The main contention of the petitioner before the trial Court is that Curt has no jurisdiction to try the matter and the same has to be tried at Kittur Court and not at Bailhongal. When the case was set down for cross examination of PW-1, the petitioner herein has filed a memo stating that the Court has no jurisdiction and the trial Court considering the provision of Section 142 of the N.I.Act, comes to conclusion that as per the amended Section 142 (b) of the N.I.Act, this Court has also having jurisdiction to try the case and rejected the memo. The petitioner on rejection of the memo has filed this petition under Section 482 of Cr.P.C. challenging and praying this Court to quash the proceeding in CC No.1001/2015 and subsequent proceedings. 4. The main contention of the petitioner in the petition is that without admitting the allegation made by the respondent, the Court at Bailhongal has no jurisdiction to try the case and the same is not having territorial jurisdiction. The allegation is that the petitioner has issued a cheque bearing No.499829 for a sum of Rs.1,10,000/- dated 18/4/2013 and the same was presented through the Syndicate Bank Branch, Kittur, on 18/4/2013 and thereafter, it was represented on 31/5/2013 and it was returned with an endorsement 'insufficient funds'. As per the allegation of the complainant/respondent, the petitioner had issued an account payee cheque to the respondent under Section 142(2)(a) of the N.I.Act, the complaint ought to have been presented and tried before the jurisdictional Court at Kittur and not at Bailhongal. Hence, the very proceedings initiated against the petitioner is liable to be quashed. 5. As per the allegation of the complainant/respondent, the petitioner had issued an account payee cheque to the respondent under Section 142(2)(a) of the N.I.Act, the complaint ought to have been presented and tried before the jurisdictional Court at Kittur and not at Bailhongal. Hence, the very proceedings initiated against the petitioner is liable to be quashed. 5. The counsel appearing for the petitioner in his argument reiterated the averment made in this petition and contended that the Court is not having any jurisdiction inspite of the memo filed by the petitioner was rejected. The approach of the Court is erroneous and without jurisdiction. 6. Per contra, the learned counsel appearing for the respondent in his argument contends after the dismissal of the memo, PW-1 was subjected to cross examination and now the case is set down for 313 statement of the accused and at this juncture, the counsel is pressing this petition and evidence has already been over and he took the defence of the jurisdiction in the cross examination and hence, the matter has to be decided in the Court below with regard to the jurisdictional issue and praying this Court to dismiss the petition. 7. Having heard the petitioner's counsel and also respondent's counsel and having considered the factual aspects of the case, whether this Court can exercise jurisdiction under Section 482 of Cr.P.C. with regard to the jurisdictional aspect. 8. There is no dispute with regard to the fact that the proceedings has been initiated for the offence punishable under Section 138 of N.I.Act and main contention of the petitioner is that Bailhongal Court has no jurisdiction to try the case. 9. On perusal of the order sheet, the Court below has taken the cognizance long back and issued the summons against this petitioner. This petitioner appeared before the Court below and participated in the proceedings and PW-1 was also examined and when the case was set down for cross examination of PW-1, he files a memo with regard to the jurisdiction is concerned. This petitioner appeared before the Court below and participated in the proceedings and PW-1 was also examined and when the case was set down for cross examination of PW-1, he files a memo with regard to the jurisdiction is concerned. From the year 2015, till posting of the mater for cross examination, no such memo is filed and when the case was set down for cross examination in the year 2017, the memo was filed after almost two years of the proceedings, contending that the Court is not having jurisdiction and the said memo was rejected and after dismissal of the memo also participated in the proceedings and cross examined the PW-1 and also with regard to the jurisdiction also, he has cross examined PW-1 and whether the Court is having jurisdiction or not have to be decided by the Court below. Considering the evidence has already been adduced by Court below and almost after lapse of two years, the jurisdiction point has been raised by the petitioner and he kept quite from 2015 to 2017 and the conduct of the petitioner also has to be taken note of. When the case was set down for cross examination, a memo was filed instead of cross examining the PW-1 and almost proceedings is over and the case is riped for disposal. 10. Having considered the evidence has already been recorded and the case is set down for 313 statement and the very defence of the jurisdiction also raised before the Court and when the evidence has been completed, it is not appropriate for this Court to consider the contention raised by the petitioner by exercising the powers under Section 482 of Cr.P.C. 11. Hence, I pass the following: ORDER The petition is rejected.