Jammu & Kashmir High Court - Srinagar Bench
Mr G. A. Lone vs None on 1 May, 2019
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
OWP no.513/2019 IA no.01/2019 Date of order: 01.05.2019 Jehangir Bashir Sathoo v.
State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:
For Petitioner(s): Mr G. A. Lone, Advocate For Respondent(s): None Whether approved for reporting? Yes
1. Instant writ petition has been filed under Article 226 of the Constitution of India read with Section 561-A of the J&K Code of Criminal Procedure, for quashing complaint tilted T&I Global Ltd v. Jehangir Bashar Sathoo, and the process issued under Section 204 of the Code of Criminal Procedure as also for quashing non-bailable warrant issued by learned Metropolitan Magistrate, 18th Court, Calcutta, on the grounds tailored therein.
2. Succinctly put, the case of petitioner is that he is a reputed businessman carrying on his business of Kiryana including Tea products at his place of business located at General Bus Stand Anantnag. He had business transactions in the matter of supply of Tea etcetera with respondent no.5 for last four years. Respondent no.5 is stated to have been supplying goods as also Tea and on receipt of goods the payment was OWP no.513/2019 Page 1 of 33 IA no.01/2019 made either in cash or through cheques to respondent no.5.
This was, according to petitioner, the business arrangement/ contract between parties, which stood good for about a period of three years. It is claimed that respondent no.5 had promised to deliver the Tea, worth Rs.4.00 lacs, to petitioner in the first week of September 2017 and that petitioner, accordingly, issued two cheques bearing nos.590728 and 590729, both dated 14th September 2017, payable at J&K Bank Branch Unit Cheeni Chowk, Anantnag, which could be payable in terms of the agreement, but, only on receipt of the goods. It is maintained that respondent no.5 failed to supply the goods and cheques continued to remain illegally with him and thus, there was a breach of contract on the part of respondent no.5 and, therefore, he was liable to pay damages to petitioner instead of seeking criminal action against him. Petitioner states that he issued a notice to respondent no.5 on 6th January 2018, informing him about non-supply of goods and breach of contract committed by him and requested him to supply goods so that funds could be arranged for amount mentioned in the cheques. It is contended that petitioner also informed respondent no.5 that non-compliance would follow initiation of legal action. He avers that instead of complying with the terms of agreement and the notice, respondent no.5, as an afterthought, filed a frivolous complaint before learned Metropolitan Magistrate, 18th Court, Calcutta, on 18th January 2018, by taking undue advantage of cheques retained by him, with the sole aim to harass petitioner and for gaining undue OWP no.513/2019 Page 2 of 33 IA no.01/2019 benefit by issuing arrest warrants against him. In terms of the warrant, it is stated, police Anantnag seeks arrest of petitioner. This, according to petitioner, has forced him to knock at portals of this Court with writ petition.
3. I have heard learned counsel for petitioner and considered the matter.
4. Learned counsel for petitioner has stated that petitioner is not guilty of any offence as contents of complaint, on the face thereof, show that besides the amount of cheques, respondent no.5 is falsely claiming further amount of Rs.23,00,232/- from petitioner. He contends that petitioner does not owe any amount to respondent no.5 including the amount of cheques because no supplies were made to him. The case between parties is said to be of civil nature inasmuch as petitioner has never received any notice of demand from respondent no.5. Further contention of learned counsel for petitioner is that complaint has been filed by unauthorised person, with whom petitioner has no business transactions nor is he an authorised agent of respondent no.5, more particularly when he has not placed on record any document of authorisation to file the complaint on behalf of respondent company. Learned counsel for petitioner has painstakingly stated that learned Metropolitan Magistrate, 18th Court, Calcutta, lacks jurisdiction to issue warrant to be executed outside his jurisdiction. He also states that this Court has jurisdiction to exercise the powers under Article 226 of the Constitution of India read with Section 561-A Cr. P.C. to protect fundamental OWP no.513/2019 Page 3 of 33 IA no.01/2019 rights of petitioner guaranteed under Article 21 of the Constitution of India from being arrested and carried to Calcutta for being presented in the local court which issued the warrant against him. Qua jurisdiction of this Court concerning subject-matter of the case, learned counsel has placed reliance on the judgement rendered in the case of Navinchandra N. Majithia v. State of Maharashtra and others, (2000) 7 SCC 640.
5. Perusal of the file reveals that a complaint under Section 138 of Negotiable Instrument Act, titled T&I Global Ltd v. Jehangir Bashir Sathoo, has been filed by T&I Global Ltd of 11, Jassal House, 4A Auckland Square Kolkatta, P. S. Shakespeare Sarani (respondent no.5 herein) before the court of Metropolitan Magistrate, 18th Court, Calcutta. Contents thereof divulge that present petitioner had been purchasing Tea on regular basis from respondent no.5 on credit. Two cheques are stated to have been issued by petitioner to respondent no.5, as is admitted by petitioner as well in his pleading projected in writ petition on hand. However, it has been claimed by respondent no.5 in his complaint that petitioner owes him Rs.23,00,232/-. The cheques, as is discernible from complaint of respondent no.5, were presented before the Bank (Standard Chartered Bank, Shakespeare Sarani Branch Kolkata) on 11th and 12th October 2017, but were dishonoured. This, as maintained by respondent no.5, was followed by a Demand Notice upon petitioner. It is claimed by respondent no.5 in his complaint that notwithstanding OWP no.513/2019 Page 4 of 33 IA no.01/2019 receipt of Demand Notice, petitioner did not pay the cheque amount, forcing him to file complaint before learned Metropolitan Magistrate, 18th Court, Calcutta.
6. First, foremost and moot question that has surfaced from the pleadings made in writ petition and documents concomitant therewith, requiring in-depth discourse and full-fledged trial, is whether this Court (High Court of J&K) can issue a writ in the nature of Certiorari to quash the complaint filed by respondent no.5 under Section 138 of Negotiable Instrument Act before the court of learned Metropolitan Magistrate, 18th Court, Calcutta and the process issued under Section the process issued under Section 204 of the Code of Criminal Procedure as also for quashing non-bailable warrant issued by learned Metropolitan Magistrate, 18th Court, Calcutta.
7. It is the case of petitioner that respondent no.5 has suppressed the fact that he has failed to supply the goods, and two cheques, issued by him, continued to remain illegally with him and therefore, there was a breach of contract on his behalf while filing a criminal complaint under Section 138 of Negotiable Instruments Act on the file of Learned Metropolitan Magistrate 18th Court, Calcutta, against petitioner.
8. Prior to adverting to the facts of instant case, this Court deems it appropriate to have a glance of some of the relevant provisions of the Negotiable Instrument Act, 1881, and the Code of Criminal Procedure.
OWP no.513/2019 Page 5 of 33 IA no.01/20199. Section 4 of the Negotiable Instrument Act says that a "promissory note" is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. A "bill of exchange" in terms of Section 5 of the Act, is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. A promise or order to pay is not "conditional", within the meaning of section 5 and section 4, by reason of the time for payment of the amount or any instalment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain and the sum payable may be "certain'', within the meaning of this Section 5 and Section 4, although it includes future interest or is payable at an indicated rate of exchange, or is according to the course of exchange, and although the instrument provides that, on default of payment of an instalment, the balance unpaid shall become due. The person to whom it is clear that the direction is given or that payment is to be made may be a "certain person", within the meaning of section 5 and section 4, although he is misnamed or designated by description only.
OWP no.513/2019 Page 6 of 33 IA no.01/201910.Section 6 provides that a "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Section 7 of the Act provides that the maker of a bill of exchange or cheque is called the "drawer". The person directed to pay is called the "drawee". The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the "payee".
11.Section 8 of the Act stipulates that the "holder" of a promissory note, bill of exchange or cheque, means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Thus, Section 8 of the Act vouchsafes right in holder of promissory note, bill of exchange or cheque to recover the amount due thereon from the parties thereto.
12.Section 138, a pertinent segment of the Negotiable Instrument, envisages that where any cheque drawn by a person on an account, maintained by him with a banker, for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any OWP no.513/2019 Page 7 of 33 IA no.01/2019 other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. It, however, provides that nothing contained in section 138 shall apply unless: (a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
13.Who shall take cognisance of offence punishable under Section 138 of Negotiable Instrument and where should be its seat to entertain a complaint preferred under and in terms of Section 138 of the Act is discernible from Section 142 of the Act. It provides that no court shall take cognizance of any offence punishable under Section 138 of the Act, except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. No court inferior to that of a Metropolitan Magistrate OWP no.513/2019 Page 8 of 33 IA no.01/2019 or a Judicial Magistrate of the first class shall try any offence punishable under Section 138 of the Act. Subsection (2) of Section 142 envisages that the offence under Section 138 shall be inquired into and tried only by a Court within whose local jurisdiction 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 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.
From the above, it is deducible that the court of Judicial Magistrate (First Class) or a Metropolitan Magistrate, where the cheque has been delivered for collection through an account or where the branch of the bank where the payee or holder maintains the account or where the cheque is presented for payment by the payee or holder, is situated, shall entertain the complaint under Section 138 of the Act. In the present case, respondent no.5, as is evident from Annexure-I to writ petition, maintains his account in Standard Chartered Bank Shakespeare Sarani Branch, Kolkata and has presented two cheques, issued by petitioner, with the said bank at Kolkatta. In such circumstances, it is the court at Kolkatta, which can entertain the complaint under Section 138 of the Act. Thus, respondent no.1 has enshrined right to move a complaint under Section 138 of the Act before the court at OWP no.513/2019 Page 9 of 33 IA no.01/2019 Kolkatta and same cannot be disputed given the provisions of Section 142 of the Act.
Be that as it may, the submission of learned counsel for petitioner that Metropolitan Magistrate, 18th Court, Calcutta, has no jurisdiction, is specious and unfounded. If petitioner has any grouse, he is free to approach the court(s) at Kolkatta for remedying thereof and not this Court.
14.The plea, that is taken, is that this Court has extra territorial jurisdiction to entertain instant petition in view of provisions of Article 226 (2) of the Constitution of India. In my considered opinion, the aforesaid submission of learned counsel appearing for petitioner is misconceived and is required to be rejected outrightly.
15.It is pertinent to mention here that 'cause of action' determines the Court of competent jurisdiction when a party invokes extraordinary jurisdiction of the Court under Article 226 of the Constitution of India. In discern contradistinction to the provisions of Section 16 to 20 of Code of Civil Procedure, Article 226 (2) restricts the principle of territorial jurisdiction only to 'cause of action'. The expression would take in its ambit partial or entire 'cause of action'. Part of cause of action is again a term of wide magnitude and thus, has to be construed liberally. However, once element of 'cause of action'; or any part thereof in its miniature form is lacking, the court may not have territorial jurisdiction, only on the basis of the residence/ location of the party. The provisions of Section 20 CPC provide that subject to limitation contained in the preceding OWP no.513/2019 Page 10 of 33 IA no.01/2019 Sections, a suit could be instituted in a court within the local limits of whose jurisdiction, defendant or each of defendants voluntarily reside(s) or where 'cause of action' wholly or in part arises. Thus, there are two factors, which independent of each other, can grant jurisdiction for a party to institute a suit in the court of competent jurisdiction. However, these provisions would not be applicable to writ jurisdiction stricto senso. It is a settled principle of law that provisions of Civil Procedure Code would not apply in full vigour or strictly to writ proceedings. They are not applicable of their own force to such proceedings, but nonetheless writ proceedings could be governed by principles analogous to those contained in the Code, particularly when they are not inconsistent with writ rules or the Constitutional mandate contained in Article
226. Unlike provisions of Section 20 CPC, which specifies different grounds for vesting jurisdiction in the court, Article 226 contemplates location of authorities and arising of 'cause of action', partly or wholly within territorial jurisdiction of that court. By introduction of Article 226 (2), great emphasis has been laid on the concept of 'cause of action'. Even this statement is further clarified by use of non-obstante clause that it would be so, notwithstanding the fact that seat of such Government or authority or residence of such person is not within those territories. This manifestly shows that residence of the party is not really a relevant consideration for determining jurisdiction of a court under these provisions. In view of this constitutional mandate, the provisions of the High Court OWP no.513/2019 Page 11 of 33 IA no.01/2019 Rules and Orders relating to exercise of writ jurisdiction have to be read ejusdem generis to the Constitutional provisions.
16.To appropriately discuss rationale of principle of 'cause of action', giving jurisdiction to a court, it will be useful to refer to the provisions of Article 226 of the Constitution, which reads:
"226. Power of High Courts to issue certain writs. --
(1) Notwithstanding anything in Article 31[2], every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under Clause (1), without:
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel for such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32."OWP no.513/2019 Page 12 of 33 IA no.01/2019
17.The provisions of Article 226 of the Constitution clearly exhibit intent of framers of the Constitution to grant territorial jurisdiction to the court in whose jurisdiction entire or part of 'cause of action' has arisen. The purpose of restricting jurisdiction of the court and relating it directly to 'cause of action', has also nexus to expeditious disposal of writ petition. An aggrieved person should approach the court of competent jurisdiction, and not file writ petitions in the court in whose jurisdiction no 'cause of action' or part thereof has arisen, merely on the ground that respondents or petitioners were residents of an area falling under jurisdiction of that court. Article 226 (3) of the Constitution, while furthering cause of expeditious disposal and prevention of unnecessary prolongation of interim orders in the form of injunction or stay, makes it obligatory for the Courts to dispose of such applications within specified time or within such time as the Courts may consider proper for reasons to be stated. Expeditious disposal has relevancy to the administration of justice and, therefore, is essential to the issue of jurisdiction as well. Normally wherever 'cause of action' or part thereof arises, authorities would be in power and possession of relevant documents/record, which can without any delay be produced before the courts to help expeditious disposal. These are procedural provisions, but are mandatory in their form as they alone determine the court of competent jurisdiction. In the present case the cheques, issued by petitioner, had been produced by respondent no.5 in Bank at Kolkatta. The OWP no.513/2019 Page 13 of 33 IA no.01/2019 cheques had been dishnoured by the Bank at Kolkatta. A complaint under Section 138 of Negotiable Instrument Act has been filed by respondent no.5 at Kolkatta. Process has been issued by the Court at Kolkatta. A statute provides and gives right to respondent no.5 to avail of remedy of filing complaint before the Court, where the account is maintained by petitioner, where the cheque had been deposited and where the cheque has been dishonoured. It is a statutory right to be availed of and concurrently obligation to be complied with in letter and spirit. Interference by this Court would amount to miscarriage of court and law. In that view of matter, it would have been apt for petitioner to, instead of knocking at portals of this Court, approach appropriate Court, in whose jurisdiction complaint has been filed and process has been issued, and for that reason, this Court is not appropriate forum for petitioner to knock at its portals for remedying his gravamen as groused by him in writ petition on hand.
18. It may be mentioned here that vesting jurisdiction in a court in whose jurisdiction no 'cause of action' has arisen, would amount to defeating the very purpose of the Constitutional provisions. In a vast country like ours, the division of jurisdiction would be necessary, which in turn would link itself to the rationale behind these Constitutional provisions. Normally, provisions relating to jurisdiction, should be construed strictly as they vest or divest jurisdiction in the Court. To vest jurisdiction in a Court where the law does not intend, would be impermissible as jurisdiction in a Court can OWP no.513/2019 Page 14 of 33 IA no.01/2019 neither be vested by consent of parties nor by implication. Jurisdiction is conferred by a Statute and in the present case it is Negotiable Instrument Act. It is already pointed out that the expression 'cause of action' or any part thereof appearing in Article 226 (2) of the Constitution, is of significant meaning and consequences. The question as to whether the Court has territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in petition, the truth or otherwise thereof being immaterial. In order to confer jurisdiction on a High Court to entertain a writ petition, it must disclose that the integral facts pleaded in support of 'cause of action', do constitute a cause, so as to empower the Court to decide the dispute and that the entire or a part of it arose within its jurisdiction. The facts pleaded in writ petition must have a nexus on the basis whereof a payer can be granted. Those facts, having nothing to do with the prayer made therein, cannot be said to give rise to a 'cause of action', which would confer jurisdiction on the Court. Even if a small fraction of 'cause of action', accrues within jurisdiction of the Court, the Court will have jurisdiction in the matter. However, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merits and even in appropriate cases, the Court can refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenience.
19. To further analyse this expression in proper concept of law, I may refer to some judgments of the Supreme Court that have OWP no.513/2019 Page 15 of 33 IA no.01/2019 explained concept of 'cause of action'. In the case of Oil Natural Gas Commission v. Utpal Kumar Basu & ors., 1994 (4) SCC 711, the Supreme Court has held:
"Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the advertisement in Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisements itself mentioned that the tenders should be submitted at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of January 15, 1993, cannot be construed as conveying rejections of the offer as that fact occurred on January 27, 1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court....
The submission of the learned Counsel for NICCO based on Section 21 of the Code of Civil Procedure that even if this Court comes to the conclusion that the High Court of Calcutta had no jurisdiction, this Court should, in the absence of proof of prejudice, refuse to interfere with the decision of the High Court unless it is otherwise found to be erroneous. While the spirit of Section 21 of the Code of Civil Procedure may support such a submission, we are afraid, the discretion cannot be used in favor of a party which deliberately invokes the jurisdiction of a Court which has no jurisdiction whatsoever for ulterior motives. That would only encourage such type of litigation. The object underlying the provisions in Section 21 is not to encourage such litigants but to avoid harassment to litigants who had bona fide and in good faith commenced proceedings in a court which is later found to be wanting in jurisdiction. In the instant case, we are convinced, beyond doubt, that NICCO did not act bona fide in moving the Calcutta High Court and, therefore, the submission based on Section 21 must fail."
20.In the case of Union of India v. Adani Exports 2002(1) SCC 567, the Supreme Court while explicating the principle laid down by it in the case of Union of India & ors v. Oswal OWP no.513/2019 Page 16 of 33 IA no.01/2019 Woollen Mills 1984 (2) SCC 646, explained the scope of territorial jurisdiction and held:
"We are unable to accept this finding of the High Court. The view of the High Court that this Court in the case of Oswal Woollen (supra) had held that the existence of the registered office of a Company would ipso facto give a cause of action to the High Court within whose jurisdiction the registered office of such a Company is situated, is not correct. As a matter of fact, in the case of Oswal Woollen (supra), the question of territorial jurisdiction in the sense with which we are concerned now, did not arise at all. In that case, the observations of the Court were as follows:
Having regard to the fact that the registered office of the Company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one would have expected the writ petition to be filed either in the High Court of Punjab and Haryana or in the Delhi High Court. The writ petitioners, however, have chosen the Calcutta High Court as the forum perhaps because one of the interlocutory relief which is sought is in respect of a consignment of beef tallow which has arrived at the Calcutta Port....We do not desire to probe further into the question whether the writ petition was filed by design or accident in the Calcutta High Court when the office of the Company is in the State of Punjab and all the principal respondents are in Delhi."
21.Article 226 (2) of the Constitution of India, that speaks of the territorial jurisdiction of the High Court, provides that the power conferred by clause (1) of Article 226, to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to territories, within which 'cause of action', wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories. It is clear from the said Constitutional provision that a High Court can exercise jurisdiction in relation to territories within which 'cause of action', wholly or in part, OWP no.513/2019 Page 17 of 33 IA no.01/2019 arises. In this regard, it would be suffice to refer to the observations made by the Supreme Court in Utpal Kumar Basu's case (supra), wherein it was held:
"Under Article 226 a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. The expression cause of action means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court.
Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial."
22.It is seen from above that in order to confer jurisdiction on a High Court to entertain a writ petition, the High Court must be satisfied from entire facts pleaded in support of 'cause of action' that those facts do constitute a cause, so as to empower the Court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above referred decisions that each and every fact pleaded by petitioner, in the present case, does not ipso facto lead to the conclusion that those facts give rise to 'cause of action' within territorial jurisdiction of this Court, in that, those facts pleaded are such, which have no nexus or relevance with the Lis that is involved in the case. Facts, which have no bearing with the Lis or the dispute involved in the case, do not give rise to a 'cause of OWP no.513/2019 Page 18 of 33 IA no.01/2019 action', so as to confer territorial jurisdiction on the Court. If this principle is applied to the given facts and circumstances of the present case, then I see that none of the facts pleaded in the petition fall into the category of bundle of facts, which would constitute a 'cause of action', giving rise to a dispute to confer territorial jurisdiction on this Court.
23.As is also clear from Union of India v. Adani Exports case (supra), that the entire facts pleaded would determine 'cause of action' and not merely happening of an inconsequential event that would determine 'cause of action', and in order to confer jurisdiction on a High Court to entertain a writ petition, the High Court must be satisfied from entire facts pleaded in support of 'cause of action' that those facts do constitute a cause, so as to empower the Court to decide a dispute, which has, at least, arisen within its jurisdiction. Qua present case:
cheques had been presented before the Bank at Calcutta (Kolkata); cheques were dishonoured by the Bank at Kolkata; subsequently the complaint has been filed before the court at Kolkata.
24.In such circumstances, 'cause of action' to throw challenge to the process issued by the court at Calcutta (Kolkata), has arisen not within territorial jurisdiction of this Court. Apart from this, as already noticed that expeditious disposal is one of the underlining features of provisions of Article 226 and to ensure balancing of convenience between parties to the Lis, it may be appropriate that the courts determine the question of jurisdiction at the first instance. Be that as it may, it would OWP no.513/2019 Page 19 of 33 IA no.01/2019 have been appropriate for the petitioner to approach competent forum at Kolkata, instead of knocking at portals of this Court.
25.It is well settled that proper exercise of jurisdiction would ex facie take in its ambit remedies which are effective and efficacious. If both or any of these ingredients are not satisfied, it would be a factor which will tilt the view of the court against exercising its jurisdiction. The court is expected to deal with the issue of jurisdiction right at the initial stage and normally while taking the petition as framed to be correct. Article 226 (2) opens with the words: "The power conferred by Clause (1) to issue directions, orders of writs to any Government, authority or person may also be...", which clearly indicates amplification of jurisdiction and that the provision is meant to aid the powers vested in the High Court for issuance of writ, order or direction, located within their territorial jurisdiction. The expression 'may also' would have to be given their true meaning while ensuring that such connotations are in consonance with the law enunciated by the Supreme Court and also spirit of constitutional territorial jurisdiction of a High Court.
26.It is a paramount principle of law of jurisdiction that the court has to determine whether it has jurisdiction to entertain and decide a case brought by a litigant before it. Undue hardship is one of the factors which the court would consider while answering such an issue. The doctrines of forum conveniens & forum non conveniens are the legal doctrines used by the court OWP no.513/2019 Page 20 of 33 IA no.01/2019 to determine the issue of jurisdiction. Ubi jus ibi remedium, there is no wrong without a remedy, is an effective legal maxim often applied to administration of justice but the question is, which is the proper and convenient legal forum or court, whose jurisdiction a party ought to invoke. The petitioner, being dominus litus, is master or has domain over the case but these rights are subject to law of jurisdiction. The laws and procedure, provided under the Code, are lex fori and wherever in terms of such law, the ingredients of territorial jurisdiction are not satisfied, the court would not assume jurisdiction merely on the ground of residence. The doctrine 'forum non conveniens' has a limited application but certainly is not an irrelevant factor, while adjudicating question of jurisdiction under the terms of Article 226 of the Constitution of India. The court is to examine whether a claim should or should not be entertained for forum non conveniens for the reason that there is another forum, i.e. clearly more appropriate than the one whose jurisdiction has been invoked. In the present case, cheques, issued by petitioner, have been presented by respondent no.5 in the Bank at Kolkatta; cheques have been dishonoured by the Bank at Kolkatta, giving rise to cause of action to respondent no.5 under and in terms of Negotiable Instrument Act, at Kolkatta and not at Srinagar; he has filed a complaint under Section 138 of Negotiable Instrument Act before the court at Kolkatta. It is his enshrined right guaranteed to him by Negotiable Instrument Act. It, thus, cannot be said to have been used in contravention of OWP no.513/2019 Page 21 of 33 IA no.01/2019 Constitutional rights. Respondent no.5 has, and has been bestowed, the right of instituting a complaint before the court at Kolkatta. Mere filing of writ petition by petitioner under Article 226 read with Section 561-A Cr.P.C. before this Court will not haul off the right of respondent no.5 to file and pursue the complaint under Section 138 of Negotiable Instrument Act before the court at Kolkatta. Having said so, better it would have been for petitioner to approach the court at Kolkatta.
27.That apart, the Supreme Court in a judgment reported as Ambica Industries Versus Commissioner of Central Excise, (2007) 6 SCC 769 has examined the jurisdiction of the High Court against an order passed by the Central Excise and Service Tax Appellate Tribunal, New Delhi constituted to exercise the jurisdiction in respect of cases arising within the territorial limits of the State of Uttar Pradesh, National Capital Territory of Delhi and the State of Maharashtra. The Court held that decision of the High Court in an appeal shall be binding only on the authorities which are within its jurisdiction. The binding authority of a High Court does not extend beyond its territorial jurisdiction. It has been further held that though the Code of Civil Procedure is not applicable to the writ proceedings, but since the phraseology used in Section 20 (c) of the Code of Civil Procedure and Clause (2) of Article 226 is pari materia, therefore, the decision of the Court rendered on interpretation of Section 20(c) of the Code of Civil Procedure shall apply to the writ proceedings also. The Court held to the following effect:
OWP no.513/2019 Page 22 of 33 IA no.01/2019"13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litus, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay.
38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate forum based upon the situs of the tribunal would lead to an anomalous result. For example, an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed."
28.Similar view was further recapitulated by the Supreme Court in the case of Eastern Coalfields Ltd. and others v. Kalyan Banerjee, (2008) 3 SCC 456 wherein a Three-Judge Bench judgment of the Supreme Court in Kusum Ingots & Alloys Ltd. v. Union of India and another, (2004) 6 SCC 254, was considered. It is held:
"7. "Cause of action", for the purpose of Article 22(2) of the Constitution of India, for all intent and purport, must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a writ petition can be allowed.
13. In view of the decision of the Division Bench of the Calcutta High Court that the entire cause of action arose in Mugma area OWP no.513/2019 Page 23 of 33 IA no.01/2019 within the Patna High Court, we are of the opinion that only because the head office of the appellant Company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the head office had nothing to do with the order of punishment passed against the respondent."
29.The three Judge Bench of the Supreme court in Kusum Ingots and Alloys Ltd case (supra) has held to the following effect:
"27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority."
30.From the aforesaid discussion and keeping in view the ratio laid down in catena of decisions by the Supreme Court, it is clear that for the purpose of deciding whether facts averred by the petitioner, would or would not constitute a part of 'cause of action', one has to consider whether such fact constitutes a material, essential, or integral part of 'cause of action'. It is, no doubt, true that even if a small fraction of 'cause of action' arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless, it must be a 'part of cause of action', nothing less than that.
31.It is pertinent to mention here that law as regards quashment of FIR/ complaint is well settled. The FIR or a complaint can only be quashed to prevent abuse of process of law or to OWP no.513/2019 Page 24 of 33 IA no.01/2019 otherwise secure ends of justice. The expressions 'ends of justice' and 'to prevent abuse of process of any court' are intended to work out either when an innocent person is unjustifiably subjected to an undeserving prosecution or if ex facie all merited prosecution is throttled at the threshold without allowing the material in support of it. This Court while exercising the inherent powers under Section 561-A Cr.P.C. (which is pari materia to Section 482 of the Central Code), does not function as Court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate proceedings. That part, a question that arises for consideration is as to whether this Court, in exercise of inherent powers vested in it under Section 561-A of the Code, has jurisdiction to quash the complaint, which has been registered outside territorial jurisdiction of this Court, the proceedings emanated therefrom or the process issued by the court thereon.
32.Learned counsel for petitioner in support of his submissions has relied on Navinchandra N. Majithia v. State of Maharashtra and others, (supra). In the said case it has been held by the Supreme Court that in terms of Clause (2) of Article 226 maintainability of writ petition in the High Court depends on whether the cause of action for filing the same, arose, wholly or in part, within the territorial jurisdiction of that Court. It has further been held that under Clause (2) of Article 226, the High Court may exercise its power conferred OWP no.513/2019 Page 25 of 33 IA no.01/2019 by Clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such parson is not within those territories. It has further been said therein that under Article 226 of the Constitution, it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.
33.Instant writ petition has been filed under Article 226 of the Constitution of India (that has already been dealt with by me herein before) read with Section 561-A Cr. P.C. for invoking inherent jurisdiction of this Court for quashment of complaint filed by respondent no.5 before learned Metropolitan Magistrate, 18th Court, Calcutta, i.e. outside territorial jurisdiction of this court.
34.It may not be out of place to mention here that from the above discourse it becomes important to take note of various provisions of the Constitution of India regarding the issue of territorial jurisdiction of a High Court. In Part I of the Constitution of India, under its Article 1, it has been declared that India, that is Bharat, shall be a Union of States.
OWP no.513/2019 Page 26 of 33 IA no.01/2019Under Sub Article (2) of Article 1, the States and the Territories thereof have been specified in the first Schedule. Under Sub Article (3), the territory of India has been defined as: the territories of the States; the Union territories specified in the First Schedule; and such other territories as may be acquired. In the First Schedule of the Constitution of India at serial no.15, the State of Jammu and Kashmir and its territory is noted as follows:
"15. Jammu and Kashmir The territory of which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir."
35.In Part-VI of the Constitution of India, various aspects relating to the State are indicated. Chapter V to Part VI, gives picture as to the High Courts in the States. Article 214 thereto says that there shall be a High Court for each State. Insofar as Article 226 of the Constitution of India, is concerned, while every High Court has been vested with the power to issue directions, orders or writs, including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari [as substituted by the Constitution, (Forty-fourth Amendment) Act, 1978] and all such directions, orders or writs, may be issued by every High Court throughout the territories in relation to which it exercises jurisdiction. Under Article 227 of the Constitution every High Court is vested with the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It would be relevant to take note OWP no.513/2019 Page 27 of 33 IA no.01/2019 of Article 228 of the Constitution where every High Court is vested with the power to transfer a case from "a Court subordinate to it" if a case involves any substantial question of law.
36.The supra-mentioned provisions of the Constitution of India clearly stipulate that "territorial jurisdiction of any State" is confined to the territory specified for each State in Schedule-I of the Constitution. Article 214 of the Constitution mandates that there shall be a High Court in each State and such a High Court under Article 226 shall have power "throughout the territory in relation to which it exercises jurisdiction", obviously, territorial jurisdiction being the territory determined for the State in Schedule-I and no other.
37.Under Article 227, the High Court is vested with the power of superintendence only over those Courts and Tribunals throughout its territory in relation to which it exercises jurisdiction. Therefore, it clearly refers to the "territory of a State" as contained in Schedule-I of the Constitution. Under Article 228 while the High Court has power and authority to transfer a case pending before any "Court subordinate to it", such a Court subordinate must be within the territorial limit to exercise jurisdiction. I have extracted various aspects of the Constitution determining the scope and ambit and territorial jurisdiction of the High Court including J&K High Court which arises for consideration. Therefore, while J&K High Court has been established under Article 214 of the Constitution of India read with Article 226, such High Court OWP no.513/2019 Page 28 of 33 IA no.01/2019 has power to issue directions, orders or writs only "throughout the territory in relation to which it exercises jurisdiction". Therefore, the territory as defined in Schedule-I of the Constitution and no other. Similarly, the J&K High Court under Article 227 of the Constitution is competent to exercise its power of superintendence only over those Courts and Tribunals located in the territory in relation to which it exercises jurisdiction, i.e. the area stipulated in the First Schedule pertaining to the State of Jammu and Kashmir and no other. Similarly, for the purpose of analogy, the J&K High Court exercises power to transfer a case from one Court to another located within the territory of the State of J&K and which are subordinate to it as defined and stipulated in Schedule-I of the Constitution of India.
38.From the above, this Court has no territorial jurisdiction over the Courts at Calcutta (Kolkatta). Therefore, this Court exercising power under Articles 226, cannot entertain a writ petition under Article 226 read with Section 561-A Cr.P.C., to quash any proceeding instituted outside the territorial jurisdiction of the Court. The prayer sought for in this writ petition would virtually set at naught the proceedings instituted on the file of the learned Metropolitan Magistrate, 18th Court, Calcutta. The jurisdiction to issue a writ is coextensive with the territorial jurisdiction of the High Court, within whose jurisdiction the subordinate court takes cognizance of a complaint. The proceedings instituted within the jurisdiction of one High Court cannot be stayed by another OWP no.513/2019 Page 29 of 33 IA no.01/2019 High Court. The remedy available to aggrieved, can be invoked only in that High Court, within whose jurisdiction, subordinate Court has taken cognizance and not in any other High Court, otherwise, it would amount to territorial transgression.
39.In view of the analysis made hereinabove, this Court is of the considered view that in exercise of authority/owners vested in it by Article 226 of the Constitution of India, such power and authority must be exercised with great caution and circumspection. Any attempt made by a litigant in order to coerce a Court to exceed its territorial jurisdiction, must be stoutly guarded. Any failure to do so, could lead to judicial chaos and anarchy. Accepting the contention of learned counsel appearing for petitioner would, in my view, lead to legal chaos, since every High Court would then be held to be empowered to quash a proceeding of a Subordinate Court of any other State and in my considered view the founding fathers of the nation and framers of the Constitution, fixed territorial limits of every High Court to try and ensure that while all constitutional bodies including the Courts would be free to exercise jurisdiction and authority within their respective territorial jurisdiction, any attempt to exceed the same would be clearly unconstitutional. It is very often stated in various judgments of the Supreme Court that greater the power or authority, greater should be the care, and caution in exercise of such authority.
OWP no.513/2019 Page 30 of 33 IA no.01/201940.In the case at hand, without entering into the triable contention and issue raised on behalf of petitioner concerning alleged lack of territorial jurisdiction on the part of learned Metropolitan Magistrate, 18th Court, Calcutta, an aggrieved party must be made to abide by the rule of law and the Constitution of India. Such a plea and/or gravamen can only be redressed by a Superior Court located within the territory, where the proceeding purportedly albeit without jurisdiction has been entertained and/or initiated. If any further grouse exists thereafter that party has every right to move the Hon'ble Supreme Court of India and also seek the exercise of power under Article 142.
In the light of above, I have no hesitation to conclude that the writ petition filed by petitioner under Article 226 read with Section 561-A Cr.P.C., is not maintainable, inasmuch as, for the reason that writ petition filed before this Court with a prayer to quash the proceedings pending before the learned Metropolitan Magistrate, 18th Court, Calcutta, is not a Court subordinate to the J&K High Court. Consequently, the J&K High Court does not possess the necessary power of superintendence as provided under Section 561-A Cr. P.C.
41.Taking into consideration distinctions drawn hereinabove, there can be no doubt whatsoever that if a party is aggrieved by an order passed by learned Metropolitan Magistrate, 18th Courts, Calcutta, he has every right to challenge the said order before the Superior Court at Calcutta/ Kolkatta and OWP no.513/2019 Page 31 of 33 IA no.01/2019 thereafter, if any grievance subsists, may also approach the Hon'ble Supreme Court of India.
42.Similarly, Section 93 of the Constitution of Jammu and Kashmir provides that there shall be a High Court of State. Section 1 (2) of the State Code of Criminal Procedure envisions that provisions of the Code shall be extended to whole of Jammu and Kashmir. Section 4 (f), Cr.P.C. defines High Court as highest Court of Criminal Appeal and revision in the Jammu and Kashmir. Jammu and Kashmir State stands also, as adumbrated hereinbefore, at Serial no.15 of Schedule-I of the Constitution of India and its territory has been defined as 'The territories which immediately before the commencement of this Constitution are comprised in the Indian State of Jammu and Kashmir'.
43.Given above discussion, it is unequivocally evident that the High Court can quash the FIR/complaint/any criminal proceedings, which are pending within the territorial jurisdiction of the same High Court and not otherwise. So, I am of the considered opinion that this Court has no territorial jurisdiction to quash the complaint tilted T&I Global Ltd v. Jehangir Bashar Sathoo, and the process issued under Section 204 of the Code of Criminal Procedure as also for quashing non-bailable warrant issued by learned Metropolitan Magistrate, 18th Court, Calcutta, which is not within territorial jurisdiction of this very High Court.
44.Resultantly and in view of above enunciated principles of law, I am of the view that this Court has no territorial jurisdiction OWP no.513/2019 Page 32 of 33 IA no.01/2019 to entertain and decide present writ petition. The same is, accordingly, dismissed with liberty to petitioner to approach the Court of competent jurisdiction.
45.Needless to add, this order will not be read as an expression of opinion on the merits of the case. It is expected that non- bailable warrant(s) issued against petitioner would not be executed by Metropolitan Magistrate, 18th Court, Calcutta till he approaches the concerned court at Calcutta or seek redressal of his grievances in the higher court(s) at Calcutta. Petitioner shall do so within four weeks from today.
(Tashi Rabstan) Judge Srinagar 01.05.2019 Ajaz Ahmad, PS AJAZ AHMAD 2019.05.02 11.34 I attest to the accuracy and integrity of this document OWP no.513/2019 Page 33 of 33 IA no.01/2019