Abdul Azeez Nazeem vs S.D. Radhakrishnan and Another

K.A. Mohamed Shafi, J.—This Crl. M.C. is filed by the accused in C.C. 326/98 on the file of the Judicial First Class Magistrate''s Court, Ramankari to quash Annexure-A1 order dated 15th December 1999 passed by the J.F.C.M.''s Court, Ramankari in C.M.P. No. 6629/99 in C.C. No. 326/98 and to direct the learned Magistrate to drop the entire proceedings against him u/s 482 of the Code of Criminal Procedure.

On the basis of the complaint filed by the 1st Respondent before the Judicial First Class Magistrate''s Court-II, Cherthala on 24th June 1995 C.C. 218/95 was registered against the Petitioner alleging offence punishable u/s 138 of the Negotiable Instruments Act. The Petitioner filed a petition after he entered appearance to discharge him stating that the J.F.C.M.''s Court-II, Cherthala has no jurisdiction to try the case, on 23rd May 1996. While that petition was pending the 1st Respondent-complainant filed C.M.P. No. 2037/96 before the Chief Judicial Magistrate''s Court, Alappuzha seeking to transfer the case from J.F.C.M.''s Court-II, Cherthala to J.F.C.M.''s Court-I, Alappuzha. That petition was dismissed by the C.J.M. by order dated 13th August 1996. Thereafter the 1st Respondent filed C.M.P. No. 2660/97 before the J.F.C.M''s Court, Cherthala seeking to return the complaint for filing before the proper Court stating that J.F.C.M.''s Court, Cherthala has no territorial jurisdiction to try the case. The learned Magistrate by order dated 20th June 1997 returned the complaint for presentation before the proper Court u/s 201 of the Code of Criminal Procedure. Accordingly the 1st Respondent re-presented the complaint before the J.F.C.M''s Court, Alappuzha and the same was taken on file and numbered as C.C. 563/97 before that Court. Subsequently the case was transferred to the file of the J.F.C.M.''s Court, Ramankari as per the order of the C.J.M., Alappuzha and the same is re-numbered as C.C, 326/98 before that Court on 29th August 1998. The Petitioner filed C.M.P. 6629/99 before the J.F.C.M.''s Court, Ramankari to drop the entire proceedings against him since the complaint is barred by time. The learned Magistrate after finding that the complaint was filed by the 1st Respondent before the J.F.C.M.''s Court, Cherthala within the period of limitation, though that Court had no jurisdiction to take cognizance of the offence alleged in the complaint, dismissed the petition/filed by the Petitioner. Hence the Petitioner has preferred this M.C. before this Court to quash the order passed by the learned Magistrate and to direct the Magistrate''s Court to drop the entire proceedings against him.

The Petitioner has contended that it is admitted by the 1st Respondent that the J.F.C.M.''s Court, Cherthala has no territorial jurisdiction to take cognizance of the offence alleged in the complaint filed by the 1st Respondent against him and therefore, the complaint re-presented by the 1st Respondent before the proper Court after recurn of the complaint by the J.F.C.M.''s Court, Cherthala long after the expiry of the period of limitation stipulated for preferring the complaint u/s 138 of the N.I. Act, is barred by time and therefore, cognizance of the offence taken by the J.F.C.M.''s Court, Alappuzha is illegal and unsustainable and therefore, the entire proceedings initiated against him as per the complaint filed before the J.F.C.M.''s Court, Alappuzha should be dropped.

The Counsel for the Petitioner vehemently argued that presentation of the complaint which was filed in a wrong Court, before the proper Court after it was returned by the wrong Court, is not the continuation of the complaint filed before the wrong Court and therefore the Court before which the complaint is presented after the expiry of the period of limitation by obtaining return of the complaint filed before the wrong Court, is barred by lime and cognizance of the offence alleged cannot be taken by that Court. In support of this contention the Counsel for the Petitioner has relied upon the decision in Sri Amar Chand Inani Vs. The Union of India (UOI), wherein the Supreme Court has observed as follows:

If the Plaintiff had filed the suit in the trial Court on March 1959, then, certainly the suit would have been within time u/s 4, as that was the proper Court in which the suit should hive been filed. As the Karnal Court had no jurisdiction to entertain the plaint, it was not the proper Court. The fact that the Plaintiff would be entitled to take advantage of the provisions of Section 14 of the Act would not, in any way, affect the question whether the suit was filed within the time as provided in Section 4 in the Karnal Court. Section 14 of the Act only provided for the exclusion of the time during which the Plaintiff has been prosecutirg with due diligence another civil proceeding against the Defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. Even if the Plaintiff was entitled to get an exclusion of the time during which he was prosecuting the suit in the Karnal and Panipat Courts, the suit would not be within time as the filing of the suit in the Karnal Court was beyond the period of limitation. It was, however, argued by Counsel for the Appellant that the suit institute d in the Trial Court by the presentation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to have been filed in the trial Court. We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court see the decisions in Hirachand Succaram Gandhy Vs. G.I.P. Railway Company, , Bimala Prosad Mukerji Vs. Lal Moni Devi and Others, and Gangamoni Devi Vs. Kumud Chandra Mazumdar and Others, . Therefore, the presentation of the plaint in the Karnal Court on March 2, 1959, cannot be deemed to be a presentation of it on that day in the trial Court.

The above judgment is pronounced by the Supreme Court in respect of a civil suit filed before the civil Court claiming damages. In that case the plaint was presented before the Senior Subordinate Judge''s Court, Karnal on 2nd March 1959 since 1st March 1959 was a day on which the Court was not opened. The suit was subsequently transferred to the Subordinate Judge''s Court, Panipat for ministerial purposes. The Subordinate Judge''s Court, Panipat by order dated 28th October 1959 returned the plaint for presentation to the proper Court finding that the cause of action did not arise within the territorial jurisdiction of that Court. The plaint was thereafter presented before the Subordinate Judge''s Court, Ambala on 29th October 1959 along with an application u/s 14 of the Limitation Act. The Ambala Court after trial though found that the Plaintiff was entitled to damages claimed, found the suit was barred by time. The contention of the Plaintiff was that since the suit was filed within the period of limitation before the wrong Court, being the continuation of the suit it is not barred when the plaint was re-presented before the Ambala Court by invoking the provisions of Sections 4 and 14 of the Limitation Act. It is negativing that contention the Supreme Court has observed as above.

It has to be noted that in that case the very finding is that the suit filed before the wrong Court itself was after the expiry of the period of limitation and the benefit of Section 4 of the Limitation Act is not available, if the Court in which the suit has been filed had no jurisdiction to entertain the same.

In support of the very same contention that filing of the suit or complaint before a Court which has no jurisdiction will not save limitation, the Counsel for the Petitioner has relied upon another decision in K.E. Company v. Hindustan Steel Ltd. 1977 KLT 488 wherein a Single Judge of this Court held that when the plaint is returned by the Court to be presented before the proper Court, if the plaint is represented to the same Court after making necessary amendments to attract jurisdiction of that Court, the Court-fee paid on the returned plaint cannot be taken into account on its representation and fresh fee has to be paid. Accordingly this Court held that rejection of the plaint for non-payment of fresh Court-fee is proper and correct.

The Counsel for the Petitioner submitted that though the above cases have arisen under civil law, the principle laid down in those cases are applicable to criminal cases coming under the Code of Criminal Procedure. Therefore, according to him, as the J.F.C.M.''s Court-II, Cherthala had no jurisdiction to entertain the complaint and to take cognizance of the offence, when the complaint was filed on 24th June 1995, the 1st Respondent cannot reckon the period from filing of the complaint till its return for presentation before the proper Court on 20th June 1997 to save limitation and therefore, the complaint filed by the Petitioner before the Alappuzha Court after return of the complaint from Cherthala Court is hopelessly barred by time.

The above contention raised by the Petitioner is not sustainable. In the decision in State Vs. Pokker and Others, a Full Bench of this Court has observed as follows:

(8) On the whole we would agree with the Madras view that Section 346(1), Code of Criminal Procedure has no reference to cases of absence of territorial jurisdiction and that in such cases what the Magistrate concerned should do is to act u/s 201, Code of Criminal Procedure. Before concluding it may also be pointed out that the course adopted in the Calcutta case for the High Court to transfer the case u/s 526(1)(i), Code of Criminal Procedure to the Court which had dealt with the case up till the date they issued the rule, even though it had no territorial jurisdiction to try it, is opposed to the rule enunciated in Peary Lall v. Komal Kishore ILR 6 Cal. 30, which the Privy Council cited with approval in Ledgard v. Bull ILR 9 All. 191, that the power of transfer of a case given to a higher Court is to transfer a case from a Court having jurisdiction to receive and try it.

In the above decision the Full Bench of this Court has held that if the Court in which the case is pending has got jurisdiction to entertain and try the case, then only the case can be transferred to some other Court of competent jurisdiction. It is further held by the Full Bench that when the Court find that it has no territorial jurisdiction, what the Court should do is to act u/s 201 of the Code of Criminal Procedure to return the complaint for presentation before the proper Court with an endorsement to that effect.

In the decision in Itty Mathew v. Remani 1998 (1) KLT 851. I have also stated that if it was found that the Court had no jurisdiction to take cognizance of the offence, the complaint should have been returned for pre emation to the proper Court with an endorsement to that effect following the procedure provided u/s 201 of the Code of Criminal Procedure.

In view of the recent authoritative pronouncement of the Supreme Court in the decision in Trisuns Chemical Industry Vs. Rajesh Agarwal and others, the contentions raised by the Petitioner in the above Crl. M.C. are absolutely unsustainable. The Supreme Court has observed as follows:

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 enquries 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 197 says that when an act is an offence by reason of anyihing 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 tramel the powers of any Court to take cognizance of the offence.

**** **** **** 11. 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 Magisjrate 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 Cede to impair the power of a Judicial Magistrate of First Class taking agnizance 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.

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 net 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 pest cognizance stage and not earlier.

The above observations made by the Supreme Court is a complete answer to the contention raised by the Petitioner that since the Cherthala Court had no territorial jurisdiction to take cognizance of the offence in this case, the re-presentation of the complaint before the Alappuzha Court on return of the complaint by the Cherthala Court for want of territorial jurisdiction and for presentation before the proper Court by order dated 20th June 1997 is barred by time. Therefore, in view of the fact that the Cherthala Court was competent to entertain the complaint and to take cognizence of the offence on filing of the complaint before that Court, even though that Court had no territorial jurisdiction to try the cace, the re-presentation of the complaint on the return of the same by the Cherthala Court for presentation before the proper Court u/s 201 of the Code of Criminal Procedure is perfectly legal and valid.

The Petitioner has no case that either the complaint was filed before the Cherthala Court after the expiry of the period of limitation provided u/s 142 of the N.I. Act or the complaint was not re-presented by the 1st Respondent before the Alappuzha Court within the time stipulated after the complaint was returned by the Cherthala Court for re-presentation before the proper Court. Therefore, the argument advanced by the Counsel for the Petitioner based on the judgment of the Single Judge of this Court in Kunhimuhammed v. Khadeeja 1995 (1) KLT 350 to the effect that the period of limitation for filing complaint alleging offence punishable u/s 138 of the Negotiable Instruments Act can neither be extended u/s 473 of the Code of Criminal Procedure nor the delay condoned u/s 5 of the Limitation Act, has absolutely no bearing to the facts of this case.

From what is stated above, it is clear that the contention of the Petitioner that the prosecution initiated against him for the offence punishable u/s 138 of the N.I. Act by re-presenting the complaint returned by the J.F.C.M.''s Court, Cherthala before the J.F.C.M.''s Court, Alappuzha is barred by time, since the J.F.C.M.''s Court, Cherthala before which the complaint was presented originally had no territorial jurisdiction to entertain and take cognizance of the offence against the Petitioner, is not at all sustainable. Therefore, the learned Magistrate is perfectly justified in dismissing C.M.P. No. 6629/99 filed by the Petitioner to drop the proceedings against him and no interference with that order is called for in this Crl. M.C.

Hence this Crl. M.C. is dismissed confirming the order passed by the learned Magistrate.