IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 15TH DAY OF SEPTEMBER 2009/24TH ASHADA, 1931 Crl.MC.No. 2158 of 2007 ( ) --------------------------- CC.316/2006 of J.M.F.C.-II, KASARAGOD PETITIONER(S)/ACCUSED: --------------------- DINESH KUMAR, S/O.BABU.K., PROPRIETOR, DINESH CONSTRUCTIONS, RESIDING AT ANU DEEKSHA IST CROSS, NAGA BANA ROAD, NEAR RAILWAY IST OVER BRIDGE, MARNAMIKATTA, MANGALORE TALUK. BY ADV. SRI.T.G.RAJENDRAN COMPLAINANT(S)/COMPLAINANT & STATE: ----------------------------------- 1. CHANDRAHASA ULLAL, S/O.ISHWARA ULLAL, RESIDING AT KANNANS NILAYA, ANANGOOR KASARAGOD VILLAGE. 2. STATE REP; BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SMT.REKHA BY ADV. SRI.SUNIL NAIR PALAKKAT BY ADV. SRI.K.N.ABHILASH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-09-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C. No. 2158 of 2007 ------------------------------------------------------------- Dated this the 15th day of September, 2009 ORDER A complaint was filed by first respondent herein against petitioner alleging offence under Sections 420 and 138 of Negotiable Instruments Act ('N.I.Act' for short). On filing of an affidavit by the complainant, summons was issued to the accused under Section 204 Cr.P.C. and the case was transferred to Judicial Magistrate of First Class-II, Kasaragod. 2. The accused filed a petition as C.M.P.650/07 contending that Judicial Magistrate of First Class-II, Kasaragod has no jurisdiction to try the matter and hence the case has to be transferred to Judicial Magistrate of First Class, Mangalore, being the court which alone has jurisdiction to try the case. The respondent-complainant filed counter statement contending that petition for transfer was filed only to drag the case, since evidence in this case adduced and trial already commenced and even the proof affidavit of complainant was filed. [Crl.M.C. No.2158/07] 2 3. The trial court dismissed the petition on the ground that application under Section 191 Cr.P.C. ought to have been filed before commencement of evidence. Besides, the Magistrate can exercise power under the said Section, only if he is empowered by the Chief Judicial Magistrate in this regard. The Magistrate Court found that it has no power to transfer the case. 4. The petitioner filed this petition under Section 482 Cr.P.C. on the ground that taking of cognizance by Judicial Magistrate of First Class-II, Kasaragod on the basis of Annexure-I complainant is illegal. According to him, the complaint itself is liable to be struck off from the file of Judicial Magistrate of First Class-II, Kasaragod and the petitioner prays to quash the proceedings in C.C. No.316/06. 5. Learned counsel Sri. Unnikrishnan V. Alappat argued that the Magistrate has no territorial jurisdiction to entertain the complaint and hence cognizance ought not to have been taken on the complaint. No cause of action is averred in the complaint so as to maintain the complaint in the court of Judicial Magistrate of First Class-II, Ksaragod and therefore the complaint is liable to be quashed. There is representation for first respondent- complainant. [Crl.M.C. No.2158/07] 3 6. Heard learned Public Prosecutor. Perused the materials made available including the complaint and the order passed in C.M.P.No.650/07. According to learned Public Prosecutor, the Magistrate, who is not having territorial jurisdiction to try the case, ought to have returned the complaint for presentation before appropriate court under Section 201 Cr.P.C. The complaint cannot be quashed, since allegations therein constitute an offence, it is submitted. 7. On hearing both sides and on going through the records, particularly the complaint, I find that offence under section 138 N.I. Act and 420 are alleged in the complaint. But the complaint does not disclose as to the place from where the cheque was drawn by the accused or the place where the complainant permanently resides or at least the place where the complainant was residing at the time of commission of offence, to decide the territorial jurisdiction of the court. However, it is averred that “the complainant had presented the said cheque for collection through the Vjaya Bank, Ullal Branch on the same day and the same was returned being dishonoured.....” 8. As per the averments contained in paragraph 3 of the complaint, cheque was presented for collection in a bank at Ullal, which is in Mangalore, which is within the State of [Crl.M.C. No.2158/07] 4 Karnataka. The only place mentioned in the complaint is Ullal. It is well-settled that “the offence under Section 138 can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by he drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) Failure of the drawer to make payment within 15 days of the receipt of the notice “(See Bhaskaran v. Balan (1999(3) J KLT 440). Therefore, going by the averments in the complaint, the presentation of cheque to the bank which lies not within the jurisdiction of judicial Magistrate of First Class, Kasaragod, the question is whether he can take cognizance of offence under Section 138 of N.I. Act. 9. For deciding this question, a reading of Section 14, 190 and 201 of Cr.P.C. will be essential. A reading of Section 14 shows that subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under Section 11 oo under Section 13 may exercise all or any of the powers with which they may respectively be vested under this Code. It is, thus, clear that if a Magistrate has to exercise that [Crl.M.C. No.2158/07] 5 power which is vested under the Code, the Magistrate must have local jurisdiction. It is only within the local limits of the area which is defined by the Chief Judicial Magistrate, the Magistrate may exercise the powers which are vested under the Code on him. 10. Section 190 Cr.P.C. empowers any Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitute an offence. An argument is raised that any Magistrate is empowered to take cognizance of an offence upon receipt of complaint if the allegations in the complaint constitute an offence. Therefore, whether the Magistrate has local jurisdiction or not can take cognizance of offence, which is alleged in the complaint. There is no dispute that the allegations in the complaint may constitute offence under Section 138 N.I. Act and therefore, the argument is that Magistrate can take cognizance of offence upon receipt of complaint filed in this case. 11. On a reading of Section 201 Cr.P.C. it may appear that any Magistrate may take cognizance of the offence which is alleged in the complaint, if the allegations constitute such offence. But as per Section 201, there is a procedure laid down as to what is to be done by the Magistrate who is not competent to take cognizance of offence. It is clear from Section 14 that Magistrate will have jurisdiction only within the place which is [Crl.M.C. No.2158/07] 6 defined by the Chief Judicial Magistrate from time to time. The powers vested under the Code on Magistrate can be exercised only if the offence is committed within the local limits of the areas in which the Magistrate can exercise the powers. Therefore, Section 201 is to be invoked if Magistrate is not having the territorial jurisdction to deal with the offence. 12. In this context, a question arises whether the proper procedure is under Section 462 of Cr.P.C., since evidence is already adduced by filing the affidavit. But in the light of the decision reported in State v. Pokker (1958 KLT 911) it is clear that Section 462 does not apply to a case where there is lack of territorial jurisdiction and the only provision by which the court can proceed is Section 322 Cr.P.C. It would appear from a plain reading of Section 322 Cr.P.C. that the said provision may apply to a case where the Magistrate is not having jurisdiction and by virtue of Section 322 he has to send a report to the Chief Judicial Magistrate and on his direction he can submit the case to the Magistrate having jurisdiction. 13. But, learned Public Prosecutor pointed out that such a transfer is possible only to the court which is lying within the District, within the jurisdiction of Chief Judicial Magistrate. I fully agree with this view. If it appears to the Magistrate during the [Crl.M.C. No.2158/07] 7 course of enquiry into the offence or trial that he has no jurisdiction to try the case and the case is one which should be tried by some other Magistrate, he can submit the case to such other Magistrate only if the other Magistrate is having jurisdiction within the same District. But, in this case, such other Magistrate Court is not within the State of Kerala or within the same District. Therefore, Section 322 has no application. The only option to the Magistrate is to proceed under Section 201 Cr.P.C. 14. It is true that under Section 462, no findings, sentence or order of criminal court is protected even if the trial is in a wrong court and such findings or order cannot be set aside for the mere reason that the order happened to be passed in the course of such trial in a wrong local area. But that is not a justification or a Magistrate to continue proceedings once it has come to know that he has no territorial jurisdiction. Section 462 applies only in cases where the Magistrate proceeded without any objection from the accused, and conducted trial unaware of lack of territorial jurisdiction. 15. In cases where objection is raised regarding territorial jurisdiction and the court is satisfied that he has no jurisdiction, the court cannot proceed with the trial, enquiry or proceedings. the court has to act under Section 201 Cr.P.C. and return the [Crl.M.C. No.2158/07] 8 complaint. Once Magistrate finds that he has no jurisdiction to take cognizance of the offence by virtue of lack of territorial jurisdiction he has to follow Section 201, which lays down a procedure to be followed by the Magistrate not competent to take cognizance of the case. 16. On the facts of this case, as per paragraph 3 of the complaint, only the Magistrate within whose jurisdiction Ullal is constituted will have territorial jurisdiction to try the case or make any enquiry or proceed with the complaint. This is also by virture of Section 177(1) and 178 Cr.P.C. Therefore, in such cases, Judicial Magistrate of First Class can be said to be not competent to take cognizance of offence under Section 201 Cr.P.C. By virtue of the said Section, he ought to have returned the complaint for presentation to the proper court, with an endorsement to that effect. In cases where Magistrate is incompetent to take cognizance of the offence by virtue of lack of territorial jurisdiction he is under a mandate to follow the procedure under Section 201 Cr.P.C. and he will be barred from taking cognizance of the offence. 17. As held in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009 (2) KLT 113(SC) “a Court derives a jurisdiction only when the cause of action arose within [Crl.M.C. No.2158/07] 9 his jurisdiction”. The court can take cognizance of an offence only if the cause of action arises within its jurisdiction. If the cause of action arises within the place which lies in the the territorial limits in which he exercises powers under Section 14, the court can be deemed to have no jurisdiction to take cognizance of the offence. This is because where there is lack of territorial jurisdiction to take cognizance of an offence. A court cannot exercise powers unless it has jurisdiction to do so. 18. Therefore, the order taking cognizance of offence by the Judicial Magistrate of First Class, Kasaragod is without jurisdiction and it goes to the root of the matter and hence it is illegal. The order taking cognizance of offence under Section 138 of N.I. Act is liable to be quashed, because of lack of jurisdiction in taking cognizance by Judicial Magistrate of First Class, Kasaragod. I am not going into the details of the order passed in the petition filed under Section 191 Cr.P.C. I need not consider the correctness of the said order since taking of cognizance itself is illegal, since the entire proceedings have to be quashed. 19. The matter is remanded for fresh consideration and disposal. I am unable to accept the argument that the complaint is liable to be quashed, for lack of necessary allegations. [Crl.M.C. No.2158/07] 10 In the result, the following order is passed: 1) The order taking cognizance of offence under Section 138 of N.I. Act is quashed. Resultantly, further proceedings initiated in this case are also quashed. 2) The matter is remanded to the Magistrate Court for reconsideration and disposal in accordance with law. This Petition is allowed. Sd/- K. HEMA, JUDGE. krs.