Madras High Court
Mahender Goyal vs M/S Kadamba International on 14 August, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.08.2012 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.O.P. No.351 of 2012 and M.P.Nos.1 & 2 of 2012 Mahender Goyal .. Petitioner - Vs - M/s Kadamba International, Represented by its Proprietor, Sh.Deepak Kumar Aggarwal, D/1, K.A.S. Nagar, No.8, Marappalam Road, Karungalpalayam, Erode. .. Respondent Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C., seeking to call for the records in S.T.C. No.670 of 2011 on the file of the learned Judicial Magistrate, No.II, Erode and quash the same. For Petitioner : Mr.Majoj K.Singh for Mr.MA.Gouthaman For Respondent : Mr.M.Guruprasad - - - - - O R D E R
The petitioner is the accused in S.T.C. No.670 of 2011 on the file of the learned Judicial Magistrate No.II, Erode. This case has been initiated on a private complaint by the respondent alleging that the petitioner has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Seeking to quash the same, the petitioner has approached this Court under Section 482 of Cr.P.C. with this criminal original petition.
2. The facts of the case would be as follows:
(i) The complainant is doing textile business in Karungalpalayam, Erode District. On 10.07.2010, the accused purchased textiles from the complainant on credit as per Invoice No.7 for a sum of Rs.1,47,262/-. In discharge of the sale consideration, the accused issued a post dated cheque dated 10.09.2010 drawn on ING Vysya Bank Limited, New Delhi for a sum of Rs.1,47,262/-.
(ii) The complainant presented the said cheque for collection in his account in Bank of India at Erode. It was returned by the Bank of India on 04.02.2011, with a note stating that the cheque was dishonoured as there was insufficient funds in the account of the accused.
(iii) Thereafter, the complainant issued a legal notice dated 24.02.2011 from Erode. Having received the said notice at New Delhi, the accused issued a reply notice. But, he did not pay the amount as demanded, within the time stipulated. Thus, according to the complainant, the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act.
3. In this petition, it is contended that the order of the learned Judicial Magistrate No.II, Erode taking cognizance of the complainant is wholly without jurisdiction as the said Magistrate lacks territorial jurisdiction. According to the accused, the cheque was drawn on ING Vysya Bank in New Delhi, it was dishonoured in New Delhi, the legal notice was also received only in New Delhi and thus the entire cause of action for the offence had taken place only in New Delhi.
4. It is further contended that mere supply of goods from Erode, receipt of cheque by the complainant at Erode, presentation of the cheque for collection in the account maintained by the complainant in a Bank in Erode and the issuance of legal notice from Erode do not constitute either a part or whole of the cause of action. Thus, the learned Judicial Magistrate No.II, Erode has got no territorial jurisdiction to entertain the complaint and therefore the entire case is liable to be quashed.
5. The above contention of the petitioner is stoutly refuted by the respondent/complainant. According to the respondent, he is doing business in Erode, the purchase order was given in Erode, the delivery of goods was taken in Erode and thus there was a part of cause of action in Erode. The cheque in question is payable at par on all branches of the drawee bank in India. The cheque was presented for collection at Erode in the account of the respondent which was in turn forwarded to the ING Vysya Bank Limited at Bangalore, where it was dishonoured. According to the respondent, the presentation of cheque at Erode gives rise to part of cause of action. At any rate, the learned Judicial Magistrate No.II, Erode has got territorial jurisdiction to entertain the complaint.
6. I heard the learned counsel on either side and also perused the records carefully.
7. Before entering into the detailed discussion on the facts of the present case, let us examine the legal position regarding the territorial jurisdiction. The earliest case on the question on jurisdiction relating to Section 138 cases is K.Bhaskaran Vs. Sankaran Vaidhyan Balan reported in 1999 (7) SCC 510, in paragraph 15 of the judgment, the Honble Supreme Court has held as follows:
15. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence :
(1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice."
8. Subsequently before a Bench of three Honble Judges in Shri Ishar Alloy Steels Ltd., Vs. Jayaswals NECO Ltd., reported in 2001 (3) SCC 609 the following questions arose for consideration:
(a) What is meant by, "the bank" as mentioned in Clause (a) of the proviso to Section 138 of the Negotiable Instruments Act, 1881?
(b) Does such bank mean the bank of the drawer of the cheque or covers within its ambit any bank including the collecting bank of the Payee of the cheque?
(c) To which bank the cheque is to be presented for the purposes of attracting the penal provisions of Section 138 of the Act?
9. These three questions were answered by the Honble Supreme Court in paragraphs 8 & 9 of the said judgment which is as follows:
"8. The use of the words "a bank" and "the bank" in the Section is indicator of the intention of the Legislature. The former is indirect article and the latter is pre-fixed by direct article. If the Legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is pre-fixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is pre-fixed by the definite article "the". The same Section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns, with a specifying of particularising effect opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote particular thing or a person. "The" would, therefore, refer implicitly to a specified bank and not any bank. "The bank" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.
9. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to the (C) bank. The non presentation of the cheque to the drawee-bank within the period specified in the Section would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Sections 2, 72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee."
10. Once again, the question relating to territorial jurisdiction of Court trying an offence under Section 138 of the Negotiable Instruments Act came up for consideration before a Coram of two Honble Judges in Harman Electronics (P) Ltd. Vs. National Panasonic India Ltd. reported in 2009 (1) L.W.(Crl) 582. In the said case, the Honble Supreme Court made a reference to K.Bhaskarans case (cited supra) and clarified that mere issuance of notice from a particular place will not give rise to a cause of action for prosecution under Section 138 of the Negotiable Instruments Act and instead it is the place where the notice is received by the accused which alone gives rise to a part of cause of action.
11. The above three judgments were considered by a learned Single Judge of this Court (Honble Mr.Justice G.M.Akbar Ali) in Pritish Tewari Vs. Vista Security Technics Private Limited, Chennai in Crl.O.P.Nos.23732 and 23733 of 2010 dated 01.02.2011. After having made a thorough study of the subject, the learned Judge has held as follows in paragraphs 24 & 25:
24. Out of the five different acts settled by the Apex Court in K.Bhaskaran Vs. Sankaran Vaidhyan Balan and Anr. (supra) the territorial jurisdiction has now been resettled to (a) Where the cheque has been issued (2) Where the cheque has been returned by the drawee bank and (3) Where the notice has been received by the drawer. The place of presentation of the cheque to the holder's bank and the place of issue of notice will no more confer jurisdiction.
25. Therefore, the Courts which has jurisdiction, to the offence under Section 138 of the Act shall be (1) the place where the cheque has been dam(sic) issued; (2) the place where the cheque returned unpaid by the drawee bank; (3) the place where, the statutory notice demanding payment of the cheque was served on the drawer.
12. Thus, it has been well settled that a complaint can be entertained by a Magistrate having territorial jurisdiction within whose limits the cheque was drawn, the place where the drawee bank dishonoured the cheque and the place where the legal notice was received by the accused.
13. In the case on hand, as I have already narrated, the cheque was drawn in New Delhi, it was dishonoured in Bangalore and notice was received in New Delhi. Thus, no part of the cause of action has occurred within the jurisdiction of the learned Judicial Magistrate No.II, Erode. As per the above judgments, the place where the cheque was received by the complainant, the place where the collecting bank is situated and the place where notice was issued could not constitute a part of cause of action and therefore the learned Judicial Magistrate No.II, Erode has no territorial jurisdiction.
14. The next important question which emerges is as to whether the proceedings should be quashed as prayed for by the petitioner. The learned counsel appearing for the petitioner would submit that since the order taking cognizance by the learned Judicial Magistrate is without jurisdiction, the proceedings should be quashed and the complaint should be returned to the complainant for presenting the same before the learned Magistrate having jurisdiction.
15. In this regard, I may say that the power to take cognizance by a Magistrate is different from jurisdiction to try an offence. That is the distinction pointed out by the Honble Supreme Court in Trisuns Chemical Industry Vs. Rajesh Agarwal and others reported in (1999) 8 SCC 686. In paragraph 11 of the judgment the Honble Supreme Court has held as follows:
11. It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to jurisdiction of the criminal courts in enquiries and trials. That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. But section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court within whose local jurisdiction such thing has been done or such consequence has ensued.. It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence. Power of the court to take cognizance of the offence is laid in Section 190 of the Code. Sub-sections (1)& (2) read thus:
(i) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence :
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon a police report of such facts;
(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(ii) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
In paragraphs 13 and 14, ultimately, the Honble Supreme Court has concluded as follows:
13. The only restriction contained in Section 190 is that the power to take cognizance is subject to the provisions of this Chapter. There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: Except as hereinafter provided. Those words are now replaced by Subject to the provisions of this chapter. Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non-obstante clauses. Any way that is a different matter.
14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier." [Emphasis supplied]
16. From the above judgement, it is crystal clear that the power to take cognizance of an offence by a Magistrate is not trammelled by the territorial jurisdiction which the said Magistrate enjoys. As has been held by the Honble Supreme Court, the question regarding territorial jurisdiction needs to be considered only during post cognizance stage and not at the time when the cognizance is taken.
17. I had an occasion to consider the above Judgement in Karuppa Gounder Vs. D.Sekar reported in 2012 (1) L.W.(Crl.) 621. After having considered the said judgement and having analysed the same, I have made the following observation in paragraph 19 of the judgment which is as follows:
"19. In Trisans Chemical's case cited supra, since the complaint was erroneously entertained by a Magistrate having no local jurisdiction, the Hon'ble Supreme Court held that the said order of the Magistrate taking cognizance shall not stand vitiated. But the said judgement should not be misunderstood as though the Hon'ble Supreme Court has declared that cognizance can be taken by any Magistrate irrespective of the fact whether he has jurisdiction or not. Thus, it is undoubtedly clear that it would be appropriate only for a Judicial Magistrate having local jurisdiction or a Special Judicial Magistrate, as the case may be, to take cognizance of any offence, either on a police report or on a private complaint."
18. In this regard, we may have a cursory glance of Section 201 of the Code of Criminal Procedure which reads as follows:
Section 201. Procedure by Magistrate not competent to take cognizance of the case. If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,-
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court."
19. The above provision make it abundantly clear that from the averments made in the complaint if the Magistrate is satisfied that he lacks competence to take cognizance for want of territorial jurisdiction, he is bound to return the complaint for presentation before the appropriate Court with an endorsement to that effect. This provision, if read along with the judgment of the Honble Supreme Court in Trisuns Chemical case (cited supra), would go to show that in a case where the Magistrate is satisfied that he lacks competence for want of jurisdiction, he has to return the complaint and if for any reason, either inadvertently or due to confusion relating to jurisdiction and if cognizance has been taken by such Magistrate, then, he has to examine the question of jurisdiction to try during post cognizance stage and desist from trying the case, if he finds that he has no territorial jurisdiction.
20. Now the question is during post cognizance stage, if a Magistrate is satisfied that he lacks territorial jurisdiction, what he has to do?
21. Section 201 of the Code of Criminal Procedure, which empowers the Magistrate to return the complaint, I am of the view, is applicable only during pre-cognizance stage and I am firmly of the view that the same is not applicable during post cognizable stage.
22. Apart from Section 201, Cr.P.C. there is yet another provision in the Code empowering the Magistrate to submit the case records to the Magistrate having jurisdiction which is Section 322 of Cr.P.C. which reads as follows:
"322. Procedure in cases which Magistrate cannot dispose of.
(1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to Warrant a presumption-
(a) that he has no jurisdiction to try the case or commit it for trial, or
(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or
(c) that the case should be tried by the Chief Judicial Magistrate, he shall stay the proceedings and submit the case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs. (2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial."
23. As per the above provision, during post cognizance stage, in the event, the question of territorial jurisdiction to try the offence is raised and if the Magistrate also finds that he has no territorial jurisdiction to try the case, then, the Magistrate has to follow Section 322 and submit the case either to the Chief Judicial Magistrate or to such other Magistrate having jurisdiction as the Chief Judicial Magistrate may direct.
24. In the case on hand, the cause of action has not arisen any where in the State of Tamil Nadu and the entire cause of action is in New Delhi. Now the question is, whether by invoking Section 322 of Cr.P.C. it would be lawful for the learned Judicial Magistrate No.II, Erode to submit the case records to the learned Chief Metropolitan Magistrate in New Delhi or whether he has to submit the records with a report to the learned Chief Judicial Magistrate to whom he is subordinate. The term Chief Judicial Magistrate as employed in Section 322 is, in common parlance, understood as the Chief Judicial Magistrate to whom the said Magistrate is subordinate. In the case on hand, if the report is submitted by the learned Judicial Magistrate No.II, Erode to the learned Chief Judicial Magistrate, Erode, what the learned Chief Judicial Magistrate, Erode has to do is also not clear in Section 322 of the Cr.P.C. It needs to be examined whether the learned Chief Judicial Magistrate, Erode can in-turn direct the learned Judicial Magistrate No.II, Erode to submit the case to the learned Metropolitan Magistrate in New Delhi?
25. The learned counsel for the petitioner would submit that the proceeding is liable to be quashed by this Court and then the complaint has to be returned to the complainant for being presented before the jurisdictional Magistrate in New Delhi. I find it difficult to accept the said contention for the simple reason that there are no valid grounds to quash the proceedings because as per Trisuns Chemical case referred to above, the order of the learned Magistrate taking cognizance is neither illegal nor irregular. Apart from that, there is no other ground to quash the case. Thus, it is doubtful as to whether the proceeding pending before the learned Judicial Magistrate No.II, Erode, in the instant case, could be quashed. If the proceeding is not quashed, the complaint cannot be returned at all and if the complaint cannot be returned, then the case has only to be transferred by the Court having jurisdiction under Section 407 of Cr.P.C. For this Court, the power to transfer a case from Tamil Nadu to New Delhi is not available because this Court can transfer a case from a Criminal Court subordinate to this Court to any other Criminal Court subordinate to this Court. Going by this view, this Court cannot give any relief to the petitioner in this petition. The petitioner may have to approach the Honble Supreme Court for getting the case transferred to New Delhi.
26. Now, the real difficulty arises in this way. Instead of approaching the Honble Supreme Court, if the petitioner raises the question of territorial jurisdiction before the learned Magistrate concerned and he convinces the learned Magistrate that he lacks territorial jurisdiction and so he cannot try the case, the question is, what the learned Magistrate has to do. Undoubtedly, the said Magistrate cannot recall his own order taking cognisance. [vide the judgements of the Hon'ble Supreme Court in Adalat Prasad v. Rooplal Jindal (2004 (7) SCC 338 and Subramanium Sethuraman v. State of Maharashtra (2005 SCC (Crl) 242]. In such a situation, the issue is as to whether the learned Judicial Magistrate No.II, Erode can submit the case directly to the Chief Metropolitan Magistrate, New Delhi or to any other learned Magistrate to be directed by the learned Chief Metropolitan Magistrate, New Delhi?
27. The learned counsel for the petitioner would bring to my notice, that in Harman Electronics (P) Ltd. Vs. National Panasonic India Ltd. reported in 2009 (1) L.W.(Crl) 582 the Honble Supreme Court in paragraph 28 has held as follows:
28. For the views we have taken it must be held that Delhi High Court has no jurisdiction to try the case. We, however, while exercising our jurisdiction under Article 142 of the Constitution of India direct that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, be transferred to the Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present. The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh."
28. This court in Pritish Tewari case, (2009 (1) L.W. Crl. 582) referred to above has issued the following direction in paragraph 28 & 29 :
28. Though the petitions have been filed to quash the proceeding on the ground that the Judicial Magistrate Court at Alandur has no territorial jurisdiction, I am also in the considered view that the complainant must be given a chance to withdraw the complaints and present the same before the Courts at New Delhi which has jurisdiction to try the alleged offence under Section 138 of the Act. However, the presentation of the complaints before a Court which has no territorial jurisdiction itself is not a ground to quash the entire proceedings. Therefore, I am also of the considered view that the complainant must be given an opportunity to withdraw and present it before the appropriate Court which has territorial jurisdiction.
29. For the reasons stated above, all the criminal original petitions are disposed of directing the respondent to withdraw the complaints from the Court of the Judicial Magistrate, Alandur, within four weeks from the date of receipt of the order and present the same before the Courts at New Delhi which has territorial jurisdiction within a period of four weeks thereafter.
29. In Mohammed Haneef Vs. Shankarraj reported in MANU/TN/2812/2011 in similar circumstances this Court (Honble Mr.Justice G.M.Akbar Ali) has passed the following order in paragraph 37 :-
37. In the result, the criminal original petition is disposed of with a direction to the respondent to withdraw the complaint pending before the Judicial Magistrate, Ambattur and present the same before the jurisdictional Metropolitan Magistrate Court at Egmore, Chennai within a period of four weeks from the date of receipt of copy of this order.
30. A reading of the above judgement shows that the learned Judge has held the view that the complainant may be allowed by the Magistrate to withdraw the complaint. I regret, I am unable to to subscribe to the said view since there is no provision in the Code enabling a complainant to withdraw the complaint. Further, such view will run counter to the law laid down by the Hon'ble Supreme Court in Adalat Prasad case cited supra.
31. Yet another learned Judge of this Court (Honble Mr.Justice R.Ragupathi) in R.Senthil Kumar Vs. Dhandapani A and Co in Crl.O.P. No.24281 of 2006 dated 08.04.2009 went one step further. The learned Judge holding that the Magistrate who had taken cognizance lacks territorial jurisdiction has simply quashed the entire proceedings leaving no option for the complainant to prosecute the matter. The said order of the learned Judge reads as follows:-
I am of the considered view that this is a fit case to quash the proceedings. Accordingly, the proceedings pending as against the petitioner in C.C.No.3316 of 2006 on the file of the Metropolitan Magistrate, GT, Chennai are quashed. The criminal original petition is allowed. Connected miscellaneous petition is closed.
32. The Delhi High Court in Dhanajay Johri Vs. Naveen Sehgal reported in MANU/DE/3284/2010, in similar circumstances, in exercise of its power under Section 482 of Cr.P.C. quashed the order of the learned Magistrate taking cognizance and ordered the complaint to be returned. In paragraph 11 of the judgment, it is stated as follows:-
11. In view of the above, I find that Delhi court has no territorial jurisdiction in this matter, as such, the order dated 09.07.2009 passed by the learned Metropolitan Magistrate is set aside, being without jurisdiction and it is directed that the complaint in question be returned to the complainant/respondent for being filed in the court of proper jurisdiction.
33. In yet another judgment in Surjeet Singh Vs. G.E. Capital Transport Financial Services reported in 2010 (4) Crimes 471 during post cognizance stage, by exercising the inherent power, the Delhi High Court has passed the following order:
11. For the reasons given in the preceding paragraphs, I am of the view that Delhi Court has no jurisdiction to entertain and try this complaint. It is, therefore, directed that the complaint filed by respondent No.1 be returned to it within four weeks for presenting it before a competent court having jurisdiction in the matter.
34. A Division Bench of Delhi High Court in Mountain Mist Agro India (Pvt.) Ltd. Vs. S.Subramaniyam reported in MANU/DE/0159/2008, while considering the question of jurisdiction during post cognizance stage has passed the following order in paragraph 13:
13. Considering the facts of the case, we find no reason to take a different view than what was taken by the learned Single Judge who has given very cogent reasons for coming to the conclusion that the Delhi Court will have no territorial jurisdiction to decide the matter. In that view of the matter, we find no merit in this appeal and the same is dismissed. However, it will naturally flow that once it is held that Delhi Court will have no jurisdiction the consequences would be to return the plaint to the appellant and the legal consequence would flow."
35. The Bombay High Court in Sri Prabhu Dayal Modi Vs. Euro Developers Pvt. Ltd reported in 2011 Cri L.J. 110, in exercise of its inherent power under Section 482 of Cr.P.C. during post cognizance stage, has passed the following order in paragraph 11:-
11. For the aforesaid reasons, writ petition is allowed. Impugned orders are hereby set aside. Process issued by the learned Metropolitan Magistrate, 44th Court Anhderi is hereby quashed. The learned Magistrate shall return the complaint to the complainant for presentation before the competent Court having jurisdiction within two weeks from this date and the complainant may file complaint before the Magistrate having jurisdiction within two weeks thereafter. If the complaint is taken back and presented within the stipulated period, the accused shall not take any objection on the ground of limitation. No order as to costs. Rule made absolute accordingly.
36. The Patna High Court in Maulana Abdul Razak @ Abdul Razak Vs. The State of Bihar and another reported in Cr.Misc.No.5944 of 2008 dated 01.09.2010 in similar circumstances has passed the following order:
Khagaria, is hereby quashed. The present quashing application stands allowed. However, the complainant if so advised may receive the complaint from the Court of learned Sub Divisional Judicial Magistrate, Khagaria, for presenting before the Court of appropriate jurisdiction if any such prayer is made, then the learned Sub Divisional Judicial Magistrate, Khagaria, will return the complaint to the complainant.
37. The Honble Supreme Court in Y.Abraham Ajith and Ors Vs. Inspector of Police, Chennai reported in (2004) 8 SCC 100 has passed the following order in paragraph 19 :
19. When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned Magistrate had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to respondent No.2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed.
38. The above judgment of the Honble Supreme Court, with due respect, appears to be in conflict with the Judgment in Trisuns Chemical case (cited supra) wherein the Honble Supreme Court has held that an order taking cognizance by a Magistrate who lacks territorial jurisdiction is neither illegal nor irregular.
39. Thus, I find, there are conflicting views taken by different Courts. Since the issues referred to above are of vital importance, having greater impact, I am of the view that this matter needs to be examined by a Larger Bench. I may suggest that the questions, which are very complex in nature, need to be examined by a Bench of at least three Honble Judges.
40. In view of the above, I direct the Registry to place the papers before My Lord the Honble The Chief Justice for considering to constitute a Larger Bench to examine the following questions:
(i) During post cognizance stage, if the Magistrate is convinced that he lacks territorial jurisdiction to try the case, can it be lawful for the Magistrate to submit the case records along with a report to the Chief Judicial Magistrate (either in the same State or outside) to whom he is not subordinate?
(ii) In exercise of its inherent powers, whether the High Court can quash the cognizance taken by a Magistrate who lacks territorial jurisdiction to try the case ?
(iii) During post cognizance stage, whether the High Court can order return of the complaint and the connected records to the complainant so as to enable him to go before the Magistrate having territorial jurisdiction outside the jurisdiction of the said High Court ?
(iv) During post cognizance stage, whether the High Court can simply direct the Magistrate to return the complaint without interfering with the order taking cognizance and if so, whether all the records including statements recorded under Sections 200 & 201 of Cr.P.C. and the report of the Police Officer under Section 202 of Cr.P.C. can also be returned along with the complaint for presentation before the jurisdictional Magistrate?
(v) If it is so held that the High Court can quash the order taking cognizance and consequently direct the Magistrate to return the complaint, whether the other records such as statements recorded under Sections 200 & 201 of Cr.P.C. and the report of the Police Officer under Section 202 of Cr.P.C. are also to be returned along with the complaint for presentation before the jurisdictional Magistrate ?
14.08.2012 kk Index : Yes Internet: Yes S.NAGAMUTHU,J kk ORDER IN Crl.O.P. No.351 of 2012 and M.P.Nos.1 & 2 of 2012 14.08.2012