1 (WP 2517 of 2009) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2517 OF 2009 Ashok Kumar Doda ...Petitioner Vs. Issagro (Asia) Agrochemicals Pvt. Ltd. and Anr. ...Respondent ----- Mr.B.G.Vaideya for Petitioner Mr.R. G. Sharma for Respondent No.1 Mr.Rajesh More -APP for the State ----- CORAM: V.M. KANADE J. DATED: 22ND NOVEMBER, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner, the Respondent No.1 and the learned APP for the State. 2. By this Petition, the Petitioner is challenging the order passed by the Additional Chief Metropolitan Magistrate, 28th Court at Esplanade, Mumbai dated 9.7.2009, which order was confirmed by the Sessions Court in Criminal Revision Application No.1179 of 2009. 2 (WP 2517 of 2009) 3. Brief facts of the case are that the Respondent No.1 filed a complaint under the provisions of section 138 of the Negotiable Instruments Act in the year 2005. Process was issued and affidavit-in-lieu of evidence was filed by the Complainant in 2005. After five years, an application was filed in the Trial Court under section 201 of the Cr.P.C. alleges that the Appellate Court did not have jurisdiction to heard and decide the complaint in view of the provisions of section 177 of Cr.P.C. It was alleged that the entire cause of action had arisen at Fizalka, State of Punjab. According to the Petitioner, the entire cause of action had arisen at Fizalka. The cheque was issued by him which was drawn on Oriental Bank of Commerce. It was submitted that except issuance of notice, the entire cause of action had arisen at Fizalka and, therefore, Mumbai Court did not have jurisdiction to entertain the complaint. Reliance was placed on the Apex Court judgment in the case of Harman Electronics (P) Ltd. & Anr. vs. National Panasonic (India) Ltd. reported in 2009 (1) All MR 479. It was submitted that the stamp affixed on the said cheque was indicated that the cheque was not present at Mumbai as alleged. 3 (WP 2517 of 2009) 4. On the other hand, the learned counsel for the Respondents submitted that the trial had already begun. Plea was recorded in 2005. An affidavit-in-lieu of evidence was filed in 2005 and, therefore, in view of the judgment of the Apex Court in the case of Subramanium Sethuraman v. State of Maharashtra, reported in (2004) Cri. Law Journal 4609, at this stage, the issue of jurisdiction could not be raised by the accused. He submitted that in fact, there was sufficient evidence on record to show that the cheque was deposited in the Mumbai Branch of Corporation Bank. The said averment was clearly made in the complaint and, therefore, in view of the judgment of the Division Bench of this Court in the case of Preetha Babu v. Voltas Ltd. and Ors.,Unreported Judgment dated 3rd February, 2010 in Application No.3158 of 2010, the Mumbai Court had jurisdiction to entertain the complaint. 5. The submissions made by the learned counsel for the Petitioner cannot be accepted since the Trial Court had commenced. After the commencement of the trial, an application under section 201 of Cr.P.C. cannot be entertained in view of the judgment of the Apex Court in the case of the Subramanium Sethuraman (supra) and 4 (WP 2517 of 2009) several other judgments. Apart from that, in view of the judgment of the Division Bench of this Court in the case of Preetha Babu (supra) and more particularly, observations made in the said judgment in paragraph 32. Since the cheque was deposited in Mumbai, the Mumbai Court would have jurisdiction to entertain the application. Both the Courts have given cogent reasons while rejecting the application filed by the accused. 7. Hence, no case is made out by the Petitioner for interfering with the impugned order passed by the Trial Court. Hence, Petition is rejected. 8. The Petitioner, however, is exempted from appearing in the Trial Court. His statement under section 313 may be recorded through his advocate as per the procedure laid down under section 313(5) of Cr.P.C. provided that the Petitioner gives an undertaking that they will not dispute his identity or correctness of the answers given to the questions asked under section 313 of Cr.P.C. However, if the Petitioner’s advocate remains absent on two dates, the learned Magistrate may cancel the exemption granted by this Court to the Petitioner. The trial is expedited. The Trial Court shall 5 (WP 2517 of 2009) decided the case expeditiously and, in any case, within a period of one year. Writ petitions are disposed of. (V.M. KANADE J.)