Kerala High Court
Sobha Rani.S vs The State Of Kerala on 12 October, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939
Crl.MC.No. 6356 of 2016
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C.C.NO. 1639/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-XII,
THIRUVANANTHAPURAM
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PETITIONER(S)/COMPLAINANT :
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SOBHA RANI.S,
W/O. SANJAY S.CHANDRAN,
RESIDING AT "ASWATHY", T.C VIII/1435(10),
ARAYALLOOR-VADAKARA NAGAR, THIRUMALA P.O.,
THIRUVANANTHAPURAM.
BY ADVS. SRI.NAIR AJAY KRISHNAN
SRI.R.T.PRADEEP
SMT.M.BINDUDAS
RESPONDENT(S)/STATE & ACCUSED :
---------------------------------------------------------
1. THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
2. SHAJI K.V., S/O. VALEYUDHAN,
KONDASSERY HOUSE, KUNNAMKULAM,
ARTHAT P.O., THRISSUR, KERALA,
NOW RESIDING AT POLICE QUARTERS ROAD,
KUNNAMKULAM P.O., THRISSUR 680 503
R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 21-06-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Msd.
Crl.MC.No. 6356 of 2016
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APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE 1 TRUE COPY OF COMPLAINT DATED 12-10-2012 WHICH IS
NUMBERED AS C.M.P NO. 4045/2012 BEFORE THE C.J.M.,
THIRUVANANTHAPURAM.
ANNEXURE 2 TRUE COPY OF AFFIDAVIT IN LIEU OF CHIEF EXAMINATION
OF THE COMPLAINANT DATED 27-04-2013 BEFORE
J.F.M.C-V, THIRUVANANTHAPURAM.
ANNEXURE 3 TRUE COPY OF ORDER DATED 26-05-2016 IN
C.C NO. 22/2013 BY J.F.M.C-V, THIRUVANANTHAPURAM.
RESPONDENT(S)' ANNEXURES :
NIL
//TRUE COPY//
P.A.TO JUDGE
Msd.
"C.R"
ALEXANDER THOMAS, J.
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Crl.M.C.No.6356 Of 2016
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Dated this the 21st day of June, 2017.
O R D E R
The order under challenge is the one at Anx.A-3 dated 26.5.2016 whereby the complaint in C.C.No.22/2013 filed by the petitioner before the Judicial First Class Magistrate Court-V (Special Court for Marklist Cases), Thiruvananthapuram, has been returned to be filed before the proper court, which has territorial jurisdiction as per Sec.142(2) of the Negotiable Instruments Act. The brief facts leading to the said impugned order are as follows:
2. The complaint in question is filed by the petitioner alleging commission of offence punishable under Sec.138 of the N.I.Act, in which the 2nd respondent herein has been arrayed as accused. The dishonoured cheque in question is for Rs.25 lakhs dated 5.7.2012 drawn from the account of the accused maintained in the ICICI Bank, Kunnamkulam Branch. The complaint was initially filed as Crl.M.P.No.4045/2012 before the Chief Judicial Magistrate (CJM) Court, Thiruvananthapuram, on 12.10.2012. The case was taken on ::2::
Crl.M.C.No.6356 Of 2016 file by the CJM as C.C.No.44/2013 on 11.1.2013 as the collection bank of the complainant is Corporation Bank, Vellayambalam, Thiruvananthapuram, which is within the limits of Thiruvananthapuram Museum Police Station, over which the CJM, Thiruvananthapuram, had territorial jurisdiction at that time. From the report dated 1.6.2017 of the CJM, Thiruvananthapuram, which has been furnished to the Registry of this Court in connection with this case, it is seen that during the year 2012, Judicial First Class Magistrate Court-V, Thiruvananthapuram, had only jurisdiction for the trial of mark list cases (State wide jurisdiction) and has no notified territorial jurisdiction based on Police Station. As the number of Mark List Cases pending in that court was very few, cases were normally made over to that court by the CJM, Thiruvananthapuram, and other courts having heavy pendency. Therefore, considering the fact that the workload in the CJM Court was quite heavy, the CJM, Thiruvananthapuram, after taking cognizance of the offence had exercised his power under Sec.192(1) of the Cr.P.C and the case was made over to the Judicial First Class Magistrate Court-V, Thiruvananthapuram, and the said court had taken the case on file as C.C.No.22/2013. In the judgment dated 1.8.2014 of the Apex Court in the case Dasarath Rupsingh Rathod v.
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Crl.M.C.No.6356 Of 2016 State of Maharashtra & anr. reported in (2014) 9 SCC 129, a Three Judge Bench of the Apex Court has categorically held that the commission of the offence under Sec.138 of the N.I.Act is on the dishonor of the cheque and that going by the mandate of Sec.177 of the Cr.P.C, the territorial jurisdiction is restricted to the Magistrate Court within whose local jurisdiction, the offence was committed, which in the context of Sec.138 of the N.I.Act, is the court within whose local jurisdiction in the territorial limits the cheque is dishonoured by the bank in which it is drawn. In other words, in interpreting the provisions contained in the N.I.Act and the Cr.P.C, their Lordships of the Apex Court in Dasarath Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, have conclusively held that the territorial jurisdiction is restricted to the court within those local jurisdiction, the offence was committed, which in the present context is where the cheque is dishonoured by the drawee bank. However, the Apex Court in para 22 of the above said judgment, issued some special directions in order to alleviate the hardships that may be caused to litigants and ordered that in those cases where, post the summoning and appearance of the accused, the recording of evidence has commenced as envisaged in Sec.145(2) of the N.I.Act, would continue at the original court and further that whether ::4::
Crl.M.C.No.6356 Of 2016 the evidence has been let in before the Magistrate at the pre- summoning stage, either by way of affidavit or by oral statement, the complaint will be maintainable only at the place where the cheque was dishonoured and that the category of complaint cases, where proceedings have gone to the stage of Sec.145(2) or beyond the post- summoning stage, shall be deemed to have been transferred by the Supreme Court from the court ordinarily possessing territorial jurisdiction as clarified in the judgment. All complaints, other than those that reached Sec.145(2) post-summoning stage, were directed to be returned to the complainant for filing in the proper court in consonance with the said judgment and that if such complaints are filed/re-filed within 30 days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred, etc. Here, in the instant case, the dishonoured cheque in question has been drawn from an account maintained with the ICICI Bank, Kunnamkulam Branch. But the complaint was initially filed before the CJM, Thiruvananthapuram, which was having territorial jurisdiction over the collection bank area. However, it appears that since the case had reached the Sec.145(2) post-summoning evidence stage, it was not liable for return and re-
::5::
Crl.M.C.No.6356 Of 2016 filing before the proper court as it was entitled to get the benefit of the exemption granted in the above said judgment of the Apex Court. Later, the provisions of the N.I.Act were amended so as to incorporate a new sub-section (2) to Sec.142 as well as the new provision as per Sec.142A, as per the provisions contained in the Negotiable Instruments (Amendment Ordinance) Act, 2015, which came into force on 15.6.2015 and later such provisions were replaced by the Negotiable Instruments (Second Ordinance), 2015, and the subsequent amendment Act thereto. As noted hereinabove, those amended provisions came into force on 15.6.2015. As per the provision contained in sub-sec.(2) of Sec.142 as now introduced, the offence under Sec.138 of the N.I.Act shall be enquired and tried by the court within whose local jurisdiction-
(a) If the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account is, situated, etc.
3. Sub-sec.(1) of Sec.142A also mandates that notwithstanding anything contained in the Cr.P.C or any other judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-sec.(2) of Sec.142 as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, ::6::
Crl.M.C.No.6356 Of 2016 (Ordinance 6 of 2015), shall be deemed to have been transferred under that Act, as if that sub-section had been in force at all material times.
4. Later, as per notification No.C2.9118/12 dated 20.8.2014 issued by the CJM, Thiruvananthapuram, it was notified that the temporary special court of the Judicial First Class Magistrate for trial of cases under Sec.138 of the N.I.Act at Thiruvananthapuram District Centre (Judicial First Class Magistrate Court-XII, Thiruvananthapuram), is having jurisdiction over the Police Station notified therein including the Thiruvananthapuram Museum Police Station. On the basis of this notification, the Magistrate Court to whom, the CJM had made over the case, viz., Judicial First Class Magistrate Court-V (Special Court for Mark List Cases), Thiruvananthapuram, took the view that since the said court did not have territorial jurisdiction to try Sec.138 offences and notified court in that regard for offence which occurred within the territorial limits of Thiruvananthapuram Museum Police Station, is the Judicial First Class Magistrate Court-XII, Thiruvananthapuram, the former court is not having territorial jurisdiction to try the offence in view of the provisions contained in Sec.142(2) and had accordingly issued the impugned Anx.A-3 order dated 26.5.2016 ordering return of the complaint to the complainant so as to file the same before the ::7::
Crl.M.C.No.6356 Of 2016 proper court having territorial jurisdiction in terms of Sec.142(2) of the N.I.Act. It is this order that is under challenge in this petition.
5. This Court, while considering the matter 26.9.2016, had granted interim stay of the operation of the impugned order and had later issued notice to R-2 and the petitioner was also permitted to serve notice on the counsel appearing for R-2 (accused) before the court below. The petitioner has filed memo regarding the service of notice to the counsel for R-2 (accused) as permitted by this Court. However, there is no appearance for R-2.
6. Heard Sri.R.T.Pradeep, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State.
7. The main issue to be decided in this case is as to the legality and correctness of the impugned order whereby the Magistrate Court, to whom the case was made over, has now as per the impugned order, returned the complaint to be filed before the court having territorial jurisdiction as per Sec.142(2) of the N.I.Act. The inter-related and interlinked issue of the matter to be examined in that regard is as to whether the CJM has lawfully made over the case to the aforementioned Magistrate Court-V, by exercising his judicial powers under Sec.192(1) ::8::
Crl.M.C.No.6356 Of 2016 of the Cr.P.C and whether the judicial power so conferred on that court under Sec.192(1) of the Cr.P.C could be exercised without in any manner being fettered by the provisions contained in Sec.142(2) r/w Sec.142A(1) of the N.I.Act.
8. At the outset, it will be profitable to refer to the provisions contained in Sec.142(2) and Sec.142A of the N.I.Act, which read as follows:
Section 142: Cognizance of offences.-
xxx xxx xxx (2) The offence under Section 138 shall be inquired into and tried only by a Court within whose local jurisdiction,--
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Explanation.-- For the purposes of Clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. Sec.142A introduced as per the amended provision reads as follows:
Section 142A: Validation for transfer of pending cases.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any judgment, decree, order or direction of any Court, all cases transferred to the Court having jurisdiction under sub-section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times.
(2) Notwithstanding anything contained in sub-section (2) of Section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the Court having jurisdiction under ::9::
Crl.M.C.No.6356 Of 2016 sub-section (2) of Section 142 or the case has been transferred to that Court under sub- section (1) and such complaint is pending in that Court, all subsequent complaints arising out of Section 138 against the same drawer shall be filed before the same Court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that Court.
(3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different Courts, upon the said fact having been brought to the notice of the Court, such Court shall transfer the case to the Court having jurisdiction under sub-
section (2) of Section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that sub- section had been in force at all material times.
Sec.192 of the Cr.P.C provides as follows:
"Sec.192: Making over of cases to Magistrates.- (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial."
9. The Apex Court in the judgment in Gopal Das Sindhi & ors.v. State of Assam & anr. reported in AIR 1961 SC 986 has categorically held in para 6 thereof that the transfer of a case contemplated under Sec.192 is only of cases in which cognizance of an offence has been duly taken and if the Magistrate, who is competent to have taken cognizance, had not taken cognizance of any offence, when the complaint is presented to him, forwards the complaint to another Magistrate, then it will not be a transfer of a case under Sec.192 of the Cr.P.C and in such a case the ::10::
Crl.M.C.No.6356 Of 2016 forwardal or sending of the complaint to another Magistrate could be only by way of an administrative action. It will be profitable to refer to para 6 of the above said judgment in Gopal Das Sindhi's case (supra) p.988 which reads as follows:
"6. The real question for determination is whether the Additional District Magistrate took cognizance on August 3, 1957, of the offences mentioned in the complaint filed before him. The transfer of a case contemplated under S.192 is only of cases in which cognizance of an offence has been taken. If the Additional District Magistrate had not taken cognizance of any offence on August 3, 1957, when the complaint was presented to him, his sending the complaint to Mr. Thomas for disposal would not be a transfer of a case under S.192. We have already quoted the order passed by the Additional District Magistrate on August 3, 1957, on the complaint presented to him. That order, on the face of it, does not show that the Additional District Magistrate had taken cognizance of any offence stated in the complaint. He sent the complaint to Mr. Thomas by way of an administrative action, presumably because Mr. Thomas was the Magistrate before whom ordinarily complaints should be filed."
10. A Division Bench of this Court in Binoy K.Mathew v. Godley Dev John & anr., reported in 2015 (4) KHC 243 (DB), has conclusively held in para 19 & 20 thereof that in view of the provisions contained in Sec.142A which contained the non obstante clause thereto which covers the pending cases before any court whether filed before it or transferred to it before the commencement of the ordinance and that such cases shall be transferred to the court having jurisdiction under Sec.142(2) of the N.I.Act as if that sub-section had been in force at all material times and further that the amended provisions are clarificatory in nature, ::11::
Crl.M.C.No.6356 Of 2016 clarifying the territorial jurisdiction for trying the cases for dishonour of cheques as indicated in the Statement of Objects and Reasons appended to the Amendment Bill, etc. Their Lordships of the Supreme Court in Bridgestone India Private Limited v. Inderpal Singh reported in (2016) 2 SCC 75 have also clearly held in para 16 thereof that as Sec.142A(1) mandates and deems as if sub-sec.(2) of Sec.142 has been in force at all material times, gives retrospectivity to that provision, etc. It has also been held in para 13 of Bridgestone's case (supra), that the amended Sec.142(2) leaves no room for any doubt that the place where the cheque is delivered for collection, that is the branch of the bank of the payee or the holder in due course, where the drawee maintains the account, would be determinative of the place of territorial jurisdiction.
Further it was held in para 16 thereof that the words "......as if that sub- section had been in force at all material times ........" used with reference to Sec.142(2) as employed in Sec.142A(1) gives retrospectivity to that provision, etc In other words by virtue of these provisions, it would regulate the territorial jurisdiction even as on the date on which the complaint was filed before the CJM, Thiruvananthapuram, on 12.10.2012. At that time, the CJM, Thiruvananthapuram, had territorial jurisdiction over Thiruvananthapuram Museum Police ::12::
Crl.M.C.No.6356 Of 2016 Station, within whose limit the payee/collection bank (Corporation Bank, Vellayambalam Branch) is situated. Therefore, in the facts of this case, the CJM, Thiruvananthapuram, had territorial jurisdiction even in terms of those amended provision as on the date of institution of the complaint on 12.10.2012.
11. It is by now well established that the act of the CJM in taking cognizance of the offence in a case and transferring it to another Magistrate under Sec.192(1) is a judicial action [see. Anilkumar v.
Sindhu, reported in 2009 (2) KLT 359 para 9]. This Court in Anilkumar v. Sindhu, reported in 2009 (2) KLT 359, has categorically held in para 9 p. 365 that the power under Sec.192(1) of the Cr.P.C conferred on the CJM, to make over cases to a Magistrate in the District/Division is not an administrative power because the provision itself says that the power under the said provision can be invoked by the CJM only after taking cognizance of the offence. Further that where a case is transferred by the CJM before taking cognizance, it will only be is an administrative action and not a transfer by way of Sec.192(1) of the Cr.P.C. The action of the Magistrate in sending the complaint to another Magistrate under Sec.192(1) is a judicial decision, as so held in the judgment of Patna High Court in Md.Abdulla Khan v. State of Bihar reported in 2002 Cr.LJ 3875.
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Crl.M.C.No.6356 Of 2016
12. Secs.410, 408, 407 and 406, etc., also confer judicial powers on the CJM, Sessions Court, High Court and Supreme Court respectively for transferring a case subject to that laid down therein and such powers are also judicial powers. Sec.410 reads as follows:
"Sec.410: Withdrawal of cases by Judicial Magistrates.- (1) Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.
(2) Any Judicial Magistrate may recall any case made over by him under sub-
section (2) of Section 192 to any other Magistrate and may require into or try such cases himself."
Sec.408 provides as follows:
"Sec.408: Power of Sessions Judge to transfer cases and appeals.- (1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.
(2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested or on his own initiative.
(3) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an order under sub-
section (1) as they apply in relation to an application to the High Court for an order under sub-section (1) of Section 407, except that sub-section (7) of that section shall so apply as if for the words "one thousand" rupees occurring therein, the words "two hundred and fifty rupees" were substituted."
Sec.407 provides as follows:
"Sec.407: Power of High Court to transfer cases and appeals.- (1) Whenever it is made to appear to the High Court--
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or ::14::
Crl.M.C.No.6356 Of 2016
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order--
(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii) that any particular case be committed for trial of to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
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Crl.M.C.No.6356 Of 2016 (6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under Section 309.
(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under Section 197."
Sec.406 provides as follows:
"Section 406: Power of Supreme Court to transfer cases and appeals.- (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a partly interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-
General of India or the Advocate-General of the State, be supported by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.
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Crl.M.C.No.6356 Of 2016
13. In the instant case, it is not in dispute that the learned CJM, Thiruvananthapuram, had taken cognizance of the offence by virtue of the enabling provisions under Sec.190(1) of the Cr.P.C and thereafter made over the case to the aforementioned Magistrate Court-V, Thiruvananthapuram, by exercising the enabling powers under Sec.192 (1) of the Cr.P.C. It has also been held in the ruling as in Mahesh Chander Singh v. Raghunandan Prasad reported in (1991) Cri.L.J. 72 (Pat), that the term "Competent Magistrate" appearing in Sec.192(2) of the Cr.P.C means a Magistrate, who is competent to hold the inquiry or trial in the cases made over to him by the Chief Judicial Magistrate after taking cognizance of the offence and where an offence is one which is triable by a Judicial Magistrate of the First Class, it cannot be made over to a Judicial Magistrate of Second Class and that even if such a case is made over to the Judicial Magistrate of Second Class, the said Magistrate will not get the jurisdiction to inquiry or trial. Therefore, the expression "competent Magistrate" appearing in Sec.192(1) of the Cr.P.C is only on the aspect as to whether or not the offence is triable by the Judicial Magistrate of First Class or Second Class. [see also Mahesh Chander Singh v. Raghunandan Prasad reported in (1991) 2 Crimes 599 p.603 & (1991) Cri.L.J. 72 (Pat)]. It has been held in para 13 of the ::17::
Crl.M.C.No.6356 Of 2016 decision of this Court in Anil Kumar v. Sindhu reported in 2009 (2) KLT 359, p.367, that by virtue of the enabling powers under Secs.192 & 410 of Cr.P.C, the CJM could transfer a case to a Magistrate having no territorial jurisdiction if he is otherwise competent. That by that transfer, the Magistrate gets only the authority to try that case, even though he does not get jurisdiction over the area comprised within the local limits of the Magistrate from chose court, the case was transferred. Even if the Magistrate Court, to whom the case is made over by the CJM under Sec.192(1) of the Cr.PC, does not have territorial jurisdiction as conferred under Sec.177 of the Cr.P.C, such transfer/make over the case by CJM is valid as it is done essentially to meet with the exigencies of workload of various courts and such other relevant considerations. Ordinarily the said power is exercised so that the exigencies of workload situation of the courts are effectively managed by the exercise of the said judicial power conferred under Sec.192 of the Cr.P.C.
14. The amendment in terms of Sec.142(2) and Sec.142A of the N.I.Act has been brought about by the the Parliament w.e.f. 15.6.2015 essentially to confer jurisdiction on the court to try the offence to the court having territorial jurisdiction over the bank in which the payee had sent the cheque for collection. The Apex Court in the judgment in ::18::
Crl.M.C.No.6356 Of 2016 Bridgestone India Private Limited v. Inderpal Singh reported in (2016) 2 SCC 75 has categorically held in para 13 thereof that a perusal of the amended Sec.142(2), leaves no room for any doubt, especially in view of the explanation thereunder, that with reference to an offence under Sec.138 of the N.I.Act, the place where a cheque is delivered for collection, i.e., the branch of the bank of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction under Sec.138 of the N.I.Act is concerned. Therefore, notwithstanding anything contained in Sec.177 Cr.p.C, which deals with territorial jurisdiction of criminal courts and notwithstanding the findings and directions in the judgments of the Apex Court as in the case Dasarath Rupsingh Rathod v. State of Maharashtra & anr., reported in (2014) 9 SCC 129, the territorial jurisdiction will be regulated by the provisions contained in Sec.142(2) of the N.I.Act. In other words, the effect of the non-obstante clause in Sec.142A(1) is only to override the provisions in Cr.P.C or the position previously settled in binding the judgments regarding the territorial jurisdiction of courts to inquire into or try offence under Sec.138 of the N.I. Act. But the said legislative provisions contained in Sec.142(2) r/w Sec.142A of the N.I.Act cannot in any manner whittle down or fetter the ::19::
Crl.M.C.No.6356 Of 2016 judicial powers conferred on various courts to make over or transfer cases from one court to another subject to the conditions laid down in those sections for effectuating the interest of administration of justice, etc. However, such making over or transfer of cases should be subject to the condition that exercise of power in that regard is made by the court concerned in the exercise of judicial powers and not by way of administrative action. For instance, if cognizance has not been taken by the CJM and the case has been made over by the CJM to another Magistrate, it would only be an administrative action and such administrative action would be clearly ultravires the provisions contained in Sec.142(2) of the N.I. Act. However, if the courts conferred with the powers of making over or transfer as CJM, Sessions Court, High Court and Supreme Court, as the case may be, exercise their respective powers conferred on them and proceed to transfer/make over as the case may be, for effectuating the interest of administration of justice, etc., then such exercise of judicial power cannot in any manner be diluted or fettered by the provisions contained in Sec.142(2) r/w Sec.142A(1) of the N.I.Act. For instance, if the High Court is convinced that in exercise of the statutory judicial powers conferred under Sec.407 of the Cr.P.C or in exercise of the constitutional powers under ::20::
Crl.M.C.No.6356 Of 2016 Article 227 of the Constitution of India, it is found necessary to transfer a complaint instituted before a Magistrate Court having territorial jurisdiction, say at Kasaragode, to another Magistrate Court at Ernakulam or any other place, can it be countenanced or imagined for a moment that the said judicial power of transfer cannot be invoked at all in view of the provisions contained in Sec.142(2) r/w Sec.142A(1) of the N.I.Act. The answer to that question is simple and straight and it is that the judicial power of the courts concerned for effectuating such transfer cannot in any manner be whittled down or fettered down by the provisions contained in the N.I.Act as stated hereinabove.
15. In the instant case, at the time when the CJM had taken cognizance, he had territorial jurisdiction over the limits of the payee/complainant's collection bank area. At the time of the pronouncement of the Apex Court judgment dated 1.8.2014 in Dasarath Rupsingh Rathod v. State of Maharashtra & anr., reported in (2014) 9 SCC 129, the case had already reached the Sec.145(2) post-summoning evidence stage and therefore, the case did not come within the ambit of transfer of cases ordered in Dasarath Rupsingh Rathod v. State of Maharashtra & anr., reported in (2014) 9 SCC 129, and it could have been retained by the CJM, Thiruvananthapuram. Since ::21::
Crl.M.C.No.6356 Of 2016 the CJM had made over the case only after taking cognizance, the exercise of power for making over the case to Judicial First Class Magistrate Court-V, Thiruvananthapuram, was a judicial decision. Therefore, the made over court, viz., the aforementioned Judicial First Class Magistrate Court-V, Thiruvananthapuram, has committed a grave illegality in passing the impugned order. There is another important aspect of the matter. When the CJM has exercised his judicial power to make over the case to Magistrate Court (Special Court for Mark List cases), Thiruvananthapuram, the latter court did not have any power to sit in judgment over the judicial action of the CJM and to unilaterally decide to return the complaint for presentation before the "proper court", etc. If at all the said Magistrate had any doubt after the introduction of the provisions contained in Sec.142(2), etc., he should have, on the administrative side, sought clarification from the CJM, who in turn could have appropriately looked into the issue. For all these reasons the impugned order passed by the Judicial First Class Magistrate Court-V (Special Court For Mark List cases), Thiruvananthapuram, as per the impugned order dated 26.5.2016 is clearly ultravires and illegal and is without jurisdiction. In this view of the matter, the said impugned order at Anx.A-3 is set aside. It is pointed out by the ::22::
Crl.M.C.No.6356 Of 2016 petitioner's counsel that pursuant to impugned Anx.A-3 order, the complainant had re-presented the complaint before the Judicial First Class Magistrate Court-XII, Thiruvananthapuram, and the first posting date was on 27.6.2016. Later, this Court had granted interim stay of the operation of the impugned order on 26.9.2016. The petitioner will produce a copy of this judgment before the Judicial First Class Magistrate Court-XII, Thiruvananthapuram, who will then transmit the complaint as well as the case records thereof to the Judicial First Class Magistrate Court-V (Special Court For Mark List cases), Thiruvananthapuram, and the latter court will proceed with the complaint from the stage where it was stopped and finalise the trial in accordance with law. Since the complaint was filed as early as on 12.10.2012, it is ordered in the interest of justice that the Judicial First Class Magistrate Court-V (Special Court For Mark List cases), Thiruvananthapuram, will ensure that the complaint is finally disposed of within a period of 4 months from the date of receipt of the complaint and its records from the other court.
With these observations and directions, the Crl.M.C stands finally disposed of.
ALEXANDER THOMAS, Judge.
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