IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 CRL.A.No. 2613 of 2008() ------------------------ S.T. NO. 641/2004 of CHIEF JUDICIAL MAGISTRATE, KOTTAYAM CRA.640/2005 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)-II, KOTTAYAM .................... APPELLANT/1ST RESPONDENT/COMPLAINANT:- ----------------------------------------------------- BABYCHEN MUKKOM, MUKKOM HOUSE, CHUNGAM, ALAPPUZHA. BY ADV. MR. K.K.SATHEESH RESPONDENTS/APPELLANT & 2ND RESPONDENT/ACCUSED:- ------------------------------------------------------------------- 1. VIMAL ROY, PRABHALAYAM (THAYYIL KALAYIL PADASEKHARAM), NEHRU TROPHY WARD, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. R.AZAD BABU FOR R1 MS. DEEPTHI AZAD FOR R1 MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- Crl. Appeal No. 2613 of 2008 ---------------------------------------------------- Dated this the 11th day of December, 2009. JUDGMENT The complainant in S.T. No. 641 of 2004 on the file of the Chief Judicial Magistrate Court, Kottayam is the appellant in this appeal filed under Section 378(4) Cr.P.C. The said complaint was for prosecuting the 1st respondent for an offence punishable under Section 138 of the Negotiable Instruments Act in respect of a cheque for Rs.1,40,000/-. The complaint alleged that the cheque when presented before the drawee bank was dishonoured for the reason that the funds in the account of the accused were insufficient. After complying with the above formalities, the above complaint was filed. 2. The learned Chief Judicial Magistrate as per judgment dated 31.10.2005, found the 1st respondent guilty of the offence and sentenced him to simple imprisonment for three months and to pay a sum of Rs.1,40,000/- as compensation to the complainant under Section 357(3) Cr.P.C with a default sentence of simple imprisonment for one month. Aggrieved by the conviction and sentence, the 1st respondent/accused preferred Crl. A. No. 2613/2008 : 2 : Crl. Appeal No. 640 of 2005 before the Sessions Court, Kottayam. As per the impugned judgment dated 31.03.2008, the learned Additional Sessions Judge, Fast Track (Adhoc) – II, Kottayam allowed the appeal and acquitted the 1st respondent for the reason that the Chief Judicial Magistrate, Kottayam was lacking territorial jurisdiction to entertain and try the complaint. Hence this appeal after special leave. 3. I heard both sides. The following facts are not in dispute:- The borrowal was at Alappuzha. The cheque for Rs.1,40,000/- was issued at Alappuzha. The drawee bank is also at Alapuzha. Both the complainant as well as the accused are residing at Alappuzha. The statutory notice alone was issued by an Advocate at Kottayam and thereafter the complaint was also filed before the Chief Judicial Magistrate, Kottayam. Thus, prima facie, the Chief Judicial Magistrate, Kottayam would not have had the territorial jurisdiction to entertain or try the complaint. But then, the objection regarding the territorial jurisdiction was never raised by the1st respondent/accused before the trial court at any time. Even in the appeal memorandum filed before the Crl. A. No. 2613/2008 : 3 : lower appellate court, the want of territorial jurisdiction of trial court, namely, Chief Judicial Magistrate, Kottayam to entertain the complaint was not raised. It was only at the time of the hearing of the appeal that this point was raised and the judgment of the trial court has been set aside on the solitory ground that the trial court did not possess the territorial jurisdiction to entertain or try the complaint. It was neither open to the 1st respondent/accused nor to the lower appellate court to upturn the judgment of the trial court on the ground of want of territorial jurisdiction. As in civil cases, an objection regarding the territorial jurisdiction has to be raised at the earliest opportunity, failing which the court is not entitled to entertain such objection, even if it is raised before the trial court itself but at the fag end of the trial. [See Meenakshi v. Udayakumar – 2007 (4) KLT 620]. The want of territorial jurisdiction does not go to the root of the matter so as to take away the jurisdiction of the trial court to entertain and try the complaint. Hence, the judgment of the lower appellate court is not sustainable. The lower appellate court did not consider the appeal on the merits of the case. Hence, the matter will have to be reconsidered by Crl. A. No. 2613/2008 : 4 : the lower appellate court on the merits. Accordingly, the judgment dated 31.03.2008 passed by the lower appellate court is set aside and the matter is remitted to the lower appellate court for disposal of Cr. Appeal No. 640 of 2005 afresh on the merits of the case and in accordance with law. The parties shall appear before the lower appellate court without any further notice on 11.01.2010. Every endeavour shall be made by the lower appellate court to dispose of the appeal expeditiously and at any rate within six months of receipt of a copy of this judgment. This appeal is disposed of as above. Dated this the 11th day of December, 2009. V. RAMKUMAR, JUDGE. rv Crl. A. No. 2613/2008 : 5 :