1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 736 OF 2008 Vishwanath s/o Kondaji Pote ...Appellant (Original complainant) VERSUS Raosaheb s/o Asaram Sawde & anr. ...Respondents ..... Shri B.A.Dhengle, advocate for the appellant Respondent no.1 served absent. Shri S.D.Kaldate, A.P.P. for respondent no.2. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 11 th August, 2010 ORAL JUDGMENT :- 1 The appellant (original complainant) has filed the present appeal challenging the judgment and order dated 22.3.2007, rendered by the 3 rd Judicial Magistrate, First Class, Jalna in S.T.C. 2 No. 1326 of 2006 acquitting the respondent (original accused) for the offence under Section 138 of the Negotiable Instruments Act, 1881 and prayed for quashment thereof. 2 In nut shell, the complainant's case is that there were cordial/friendly relations between the complainant and the accused and at the request of the accused, the complainant gave hand loan of Rs.2,50,000/- to the accused on 7.6.2005 for relieving the tractor and also towards his financial difficulties. It is also the case of the complainant that the accused did not repay the said loan within the period of one year in spite of making repeated requests. However, the accused issued a cheque bearing No. 0489970 drawn on Bank of Maharashtra, Branch Tembhurni on 4.4.2006 for Rs.2,50,000/-. The complainant presented the said cheque for encashment purpose to the Bank of Maharashtra, Tembhurni Branch on 28.5.2006. However, said cheque was dishonoured and returned unpaid with the endorsement, “insufficient funds” on 29.5.2006 along with the cheque return memo of the said Bank. Hence, the complainant issued statutory notice to the accused on 30.5.2006 and thereafter filed the complaint against the accused on 7.6.2006 before the Chief Judicial Magistrate, Jalna. Accordingly, the Chief Judicial Magistrate, Jalna assigned the said complaint to the learned Judicial Magistrate, First Class, Jalna by order dated 8.6.2006. Thereafter, the learned 3 Judicial Magistrate, First Class, Jalna took the cognizance and passed the issue process order against the accused on 30.6.2006 and accused appeared in the said case and his plea was recorded. He pleaded not guilty and claimed to be tried. 3 In order to substantiate the claim of the complainant, he examined himself by filing affidavit of evidence and adduced oral evidence as well as produced the documentary evidence. The accused also examined himself and adduced the oral evidence. The defence of the accused is that he had not signed the cheque in question and the complainant is engaged in money lending business. It is also defence of the accused that he obtained loan of Rs.20,000/- from the complainant and the cheque in question was not issued by him. 4 After scrutinizing and appreciating the evidence on record, the learned trial Judge arrived at the conclusion that the accused is not guilty of the charge levelled against him, and therefore, acquitted him under Section 138 of the Negotiable Instruments Act, 1881 by way of judgment and order dated 22.3.2007. 5 Being aggrieved and dissatisfied by the judgment and order of acquittal, the appellant (original complainant) has preferred 4 the present appeal. 6 Heard Shri B.A.Dhengle, advocate for the appellant and Shri S.D.Kaldate, A.P.P. for respondent no.2. Respondent no.1 served absent. 7 I have perused the impugned judgment and order dated 22.3.2007 as well as the record and proceedings with the assistance of the learned respective counsel for the parties. 8 It is evident from the impugned judgment and order of acquittal that the learned Trial Judge held that he had no jurisdiction to entertain and try the said complaint, and therefore, acquitted the accused under Section 255 (1) of the Code of Criminal Procedure for the offence under Section 138 of the Negotiable Instruments Act, 1881. 9 Hence, the controversy centers around at the short question, after arriving at the conclusion that the learned Judicial Magistrate, First Class, Jalna, had no jurisdiction to entertain and try the complaint, whether the complaint was required to be returned for its presentation before the proper court or whether the trial Court was right in acquitting the accused, since the trial Court had no 5 jurisdiction. 10 In fact, in the instant case, the accused is resident of Akola, Taluka Jafrabad and the complainant is also resident of village Tembhurni, Taluka Jafrabad and the cheque in question was drawn on Bank of Maharashtra, Tembhurni Branch, as well as the said cheque was presented for encashment in Bank of Maharashtra, Tembhurni Branch, Taluka Jafrabad, and therefore, in fact, learned Judicial Magistrate, First Class, Jafrabad had jurisdiction to entertain and try the said complaint, but the said complaint came to be lodged before the Chief Judicial Magistrate, Jalna, and therefore, learned trial Court rightly held that it had no jurisdiction. However, when the learned trial Judge came to the conclusion that it had no jurisdiction to entertain and try the said complaint, in fact, the learned trial Judge ought to have returned the said complaint for it’s presentation before proper forum for trial in accordance with law, in stead of acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881, and therefore, the said finding of the trial Court is erroneous and unsustainable, and therefore, same deserves to be quashed and set aside. 11 Apart from that, it is seen from the proceedings that the learned trial Court took the cognizance of the said complaint on 6 30.6.2006 by issuing process against the accused on the said date, and in fact, Section 201 of the Code of Criminal Procedure mandates that :- “ 201. Procedure by Magistrate not competent to take cognizance of the case : - If the complaint is made to a Magistrate who is not competent to take the cognizance of the offence, he shall :- (a) if the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper court. “ Hence, when if the learned trial Court found that it had no jurisdiction to entertain and try the said complaint/case, the finding recorded by it acquitting the respondent (original accused) not guilty and to acquit him is not justified. If at all, the lower Court was of the view that the said Court had no jurisdiction to take the cognizance of the complaint, it ought to have returned the complaint for its presentation to the proper court with endorsement thereon under Section 201 of the Code of Criminal Procedure. Therefore, in that view of the matter, the lower Court was in error in recording the finding that the respondent was not guilty and acquitted him, considering the following observations made in para 15 of the judgment in the case 7 of Varghese vs C.K.Ramani, reported at 1998 Cri.L.J. 2755 :- “ .............. ................ ................ 15 Even if the lower court found that it has no jurisdiction to try the case, it is not at all justified in finding the respondent not guilty and acquiting her. If at all the lower court should have followed the procedure provided under Section 201 of the Cr.P.C. If it was of the view that the court had no jurisdiction to take cognizance of the offence in which case the complaint should have been returned for presentation to the proper court with an endorsement to that effect. Therefore, in that view also the lower court was in error in finding the respondent not guilty and acquitting her. ............ .................. .............. “ 12 Hence, in view of that matter, the impugned judgment and order of acquittal dated 22.3.2007 deserves to be quashed and set aside and matter is required to be remanded back to the concerned Judge with directions to the said Judge that the said complaint be returned back for its presentation to proper court with endorsement to that effect. 13 In the result, present appeal is allowed and the impugned judgment and order dated 22.3.2007, rendered by the 3 rd Judicial 8 Magistrate, First Class, Jalna in S.T.C. No. 1326 of 2006 acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881, stands quashed and set aside and the matter is remanded back to the said Court with directions that the complaint in the said case be returned for its presentation before the proper and concerned Court with endorsement to that effect. 14 Record and proceedings be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/cra736.08