IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 4655 of 2009(D) ------------------------------------- ST.838/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III,TRIVANDRUM .................... PETITIONER(S): ---------------------- M. VIJAYAKUMAR, PROPRIETOR, GAMAS ADVERTISING, REPRESENTED BY POWER OF ATTORNEY HOLDER, G.P.NAIR, MANAGER, GAMAS ADVERTISING, SUGANTHI BUILDING, OPP.CHILD WELFARE SOCIETY, THYCAUD, THIRUVANANTHAPURAM. BY ADV. MR.VAKKOM N.VIJAYAN SMT.V.RENJU SMT.REEJA HARI SMT.M.A.RAMITHA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MR.R.S. SIVAPRAKASAN, CHAIRMAN & MANAGING DIRECTOR, SIVAMATHI ANIMATION SOFTWARES & ELECTRONICS LTD. SRI.JAYALEKSHMI BUILDING, 62-G, 4TH FLOOR, NORTH BAUG ROAD, T.NAGAR, CHENNAI – 17. R1 BY PUBLIC PROSECUTOR MR.B. VINOD. R2 BY ADV. MR.DEEPU THANKAN, SMT.G.RANJITA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2009, ALONG WITH WPC NO.4988 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4655/2009-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 24/12/2008 IN S.T.838/2008 OF THE JUDL. FIRST CLASS MAGISTRATE COURT-III, TRIVANDRUM. EXT.P2: COPY OF THE COMPLAINT ST.NO.838/2008 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, TRIVANDRUM. EXT.P3: COPY OF THE SPECIMEN COPY OF THE BILL ISSUED BY THE PETITIONER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) No.4655,4988,4989 4990& 4991 OF 2009 =========================== Dated this the 4th day of August,2009 JUDGMENT Petitioner a power of attorney holder of the complainant filed these petitions under Article 227 of the Constitution of India to quash the order passed by the learned Magistrate dated 24.12.2008 returning the complaint for presentation before the proper court finding that Judicial First Class Magistrate Court III, Thiruvananthapuram has no territorial jurisdiction to try the case. W.P.(C) No.4655/2009 is filed challenging the order in S.T.838/2008, W.P.(C)4988/2009 against the order in S.T.835/2008,W.P.(C)4989/2009 against the order in S.T.836/2008, W.P.(C) 4990 /2009 against the order in S.T.837/2008 and W.P.(C)4991/2009 against the order in S.T.839/2008 on the file of the said court. As is clear from the orders passed by the learned Magistrate, on the same day the orders were passed, without recording any sworn statement of the complainant, based on perusal of the complaint the order reads:- W.P.(C) 4655/2009 & connected cases 2 “Complainant present. On perusal of the records it is seen that the drawee bank is situated in Chennai and as per decision of Hon'ble High Court of Kerala reported in 2008(3) KLT 461, this court is not having jurisdiction to try this case as the drawee bank is not situated within the jurisdiction of this court. There is no other averment in complaint to see that this court is heavy territorial jurisdiction. Hence, complaint is returned under section 20 Cr.P.C to be presented before the proper court within 30 days.” In all the complaints second respondent is the accused. Though second respondent is not entitled to be heard at that stage, in the Writ Petition notice was issued to the second respondent. 2. Learned counsel appearing for the petitioner and the learned counsel appearing for second respondent were W.P.(C) 4655/2009 & connected cases 3 heard. 3. As rightly argued by the learned counsel appearing for the petitioner, when a complaint is filed learned Magistrate has to proceed as provided under section 200 of the Code of Criminal Procedure. When the accused is not residing within the jurisdiction of that court, as in this case, Magistrate is bound to conduct an inquiry as provided under section 202 of the Code of Criminal Procedure before proceeding under section 203 or 204. The learned Magistrate even under section 200 of Code of Criminal Procedure is bound to record the sworn statement of the complainant and witnesses if any present and then only decide whether the summons is to be issued as provided under section 204 of the Code of Criminal Procedure. True, as provided under section 202 of the Code of Criminal Procedure Magistrate has to conduct an inquiry as provided thereunder. If the Magistrate decides to take cognizance of the complaint, he is bound to record the sworn statement of the complainant and the witnesses and then only he is entitled to pass the order to return the complaint if he is satisfied that he has no jurisdiction. As it was not complied the orders are to be quashed. Learned Magistrate is directed to record the sworn statement of the complainant or the witnesses if any to receive the W.P.(C) 4655/2009 & connected cases 4 affidavit of the complainant and his witnesses if any in lieu of the sworn statement and thereafter based on the statements and averments in the complaint and the documents produced decide whether summons is to be issued to the accused as provided under section 204 of the Code of Criminal Procedure or the complaints are to be dismissed under section 203 of the Code of Criminal Procedure. Learned Magistrate at that stage is definitely competent to decide the question whether the court has territorial jurisdiction or not and if finds he has no jurisdiction to return the complaints. But for deciding that aspect learned Magistrate is bound to hear the complainant, though at that stage accused cannot be heard. Writ Petitions are allowed. The order passed by the Judicial First Class Magistrate III in S.T.838/08, 835/08,836/08,837/08 & 839/08 returning the complaint are quashed. Learned Magistrate is directed to receive the complaints and proceed in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006