CR.MA/13798/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 13798 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = M/S TIMBADIYA ROLLER & FLOUR MILL & 1 - Applicant(s) Versus AMRUTLAL BABULAL KUNDALIYA & 1 - Respondent(s) ========================================= Appearance : MS AMEE YAJNIK for Applicant(s) : 1 - 2. MR PM LAKHANI for MRS RP LAKHANI for Respondent(s) : 1, MR RI SHARMA for Respondent(s) : 1, MR IM PANDYA, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 06/02/2008 ORAL JUDGMENT 1. RULE. Mr.I.M.Pandya, learned Additional Public CR.MA/13798/2007 2/6 JUDGMENT Prosecutor waives service of notice of Rule on behalf of respondent no.2-State of Gujarat and Mr.P.M.Lakhani, learned advocate waives service of notice of Rule on behalf of respondent no.1. 2. Having regard to the facts of the case, with the consent of the learned advocates for the parties, the matter is taken up for final hearing. 3. By this application under Section 482 of Code of Criminal Procedure, 1973, (the Code), the applicant has prayed for quashing the process issued against the petitioners in Criminal Case No.551 of 1998 by the learned Judicial Magistrate First Class, Jamkhambhalia. The applicant has also challenged the order dated 1st November, 2007 passed below Exh.30 by the learned Judicial Magistrate First Class and has prayed that the petitioner's application under Section 201 of the Code be allowed. 4. The facts of the case stated briefly are that the respondent No.1 - complainant had lodged the aforesaid complaint in respect of dishonour of two cheques issued by the petitioners. After the summons were served on the petitioners on the next date thereafter, that is on 19th March, 2007, the plea of the petitioners was recorded and the petitioners received the copy of the complaint as well as other documents. On the next date of hearing, that is, on 5th April, 2007, the petitioner moved an application under Section 201 of the Code, raising a preliminary issue regarding the jurisdiction of the learned Judicial Magistrate First Class, Jamkhambhalia of taking CR.MA/13798/2007 3/6 JUDGMENT cognizance of the matter. By the impugned order dated 1st November, 2007, the said application was rejected, which has given rise to the present petition. 5. Heard Ms.Amee Yajnik, learned advocate for the petitioners, Mr.P.M.Lakhani, learned advocate for respondent No.1 and Mr.I.M.Pandya, learned Additional Public Prosecutor for respondent No.2. 6. Learned advocate Ms.Amee Yajnik had placed reliance upon a decision of the Supreme Court in the case of K Bhaskaran Vs.Shankaran V. Balan, 1999 (7) SCC 510 in support of her contention that the learned Judicial Magistrate, Jamkhambhalia had no jurisdiction to take cognizance of the case. It was pointed out that the Supreme Court has in the said decision enumerated five eventualities under which a Court would be conferred with the jurisdiction to entertain a complaint under Section 138 of the Act. It was pointed out that in the present case none of the five conditions laid down in the said judgment are fulfilled. It was, accordingly, submitted that the Court at Jamkhambhalia does not have the jurisdiction to entertain the complaint of the complainant. Hence, cognizance taken by the said Court is bad, and, therefore, the process issued in Criminal Case No.551 of 1998 is required to be quashed. 7. On the other hand Mr.P.M.Lakhani, learned advocate for respondent no.1 has not disputed the contention raised by the learned advocate for the petitioner that none of CR.MA/13798/2007 4/6 JUDGMENT the eventualities envisaged in the decision of the Supreme Court cited hereinabove are fulfilled. However, it was submitted that in the circumstances, it is only the issuance of the process which is bad, but, it cannot be said that the learned Judicial Magistrate had no jurisdiction to take cognizance of the case. 8. In the background of the facts and submissions noted hereinabove, two issues arise for consideration; (1) Whether the Court at Jamkhambhalia had jurisdiction to take cognizance and try the case?, and (2) If the Court comes to the conclusion that the Court at Jamkhambhalia lacks jurisdiction to take cognizance and/or try the case, whether the complaint is required to be returned to the complainant, as envisaged under Section 201 of the Code or whether the Court should be directed to send the case to the Court of competent jurisdiction. 9. Insofar as the first issue is concerned, examining the facts of the present case, in the light of the decision of the Supreme Court in the case of K.Bhaskaran v. Sankaran Vaidhyan Balan and another, (1999)7 SCC 510, it is an admitted position that none of the five eventualities laid down in the said decision are fulfilled. Hence, there is no possibility of a second view insofar as the contention that the said Court has no jurisdiction to try the matter, is concerned. 10.The Supreme Court in the case of Trisuns Chemical Industry v. Rajesh Agarwal and others, (1999)8 SCC 686, while interpreting the provisions of Section 190 of CR.MA/13798/2007 5/6 JUDGMENT the Code, has held thus: “The jurisdictional aspect becomes relevant only when the question of inquiry or trial arises. It is, therefore, a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of First Class, his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance, he may have to decide as to the Court which has jurisdiction to inquire into or try the offence, and that situation would reach only during the post cognizance stage and not earlier.” 11.In the present case, the learned Judicial Magistrate, Jamkhambhalia, after taking cognizance of the case, has issued process vide the order dated 25th June, 1998. Considering the legal position as enunciated by the Supreme Court in the decision cited hereinabove, as the learned Magistrate does not have the jurisdiction to try the case, the issue of process post cognizance, is without jurisdiction. In the circumstances, the order dated 25th June, 1998, whereby process is issued against the present applicants, is required to be quashed. 12.In the above view of the matter, recourse cannot be taken to the provisions of Section 201 of the Code as the said provision provides for the procedure which is to be adopted by the Magistrate not competent to take cognizance of the case. In the present case, when it is held that the learned Magistrate had jurisdiction to take cognizance of the case, the provisions of Section 201 CR.MA/13798/2007 6/6 JUDGMENT cannot be resorted to. 13.In view of the aforesaid findings recorded by this Court, the impugned order dated 1st November, 2007 passed below Exhibit 30, whereby the learned Magistrate has expressed a prima facie opinion that the Court has jurisdiction to try the case, is required to be quashed and set aside. 14.Since it is an admitted position that the present case would fall within the jurisdiction of the Court at Jamnagar, the ends of justice would best be served if the learned Judicial Magistrate, Jamkhambhalia is directed to send the case to the learned Chief Judicial Magistrate, Jamnagar. 15.In the result, the petition succeeds and the same is, accordingly, allowed. The order dated 25th June, 1998, whereby process is issued against the petitioners in Criminal Case No.551 of 1998 by the learned Judicial Magistrate First Class, Jamkhambhalia as well as the impugned order dated 1st November, 2007 passed below Exhibit 30, are hereby quashed. The learned Judicial Magistrate First Class, Jamkhambhalia is directed to send Criminal Case No.551 of 1998 to the Court of the learned Chief Judicial Magistrate, at Jamnagar. Rule is made absolute accordingly. [HARSHA DEVANI, J.] parmar*