Nazeem vs Radhakrishnan

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. Rainankari to quash Anncsurc-A-1 order dated 15.12.99 passed by the J.F.C.M.s Court. Rainankari in C.M.P. No. 6629/99 in C.C. No. 326798 and to direct the learned Magistrate to drop the entire proceedings against him u/s 482 of the Cr.P.C.

On the basis of the complaint filed by the 1st respondent before the Judicial First Class Magistrate''s Court-H, Cherthala on 26.6.1994 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 staling that the J.F.C.M. ''s Court-II. Cherthala alias no jurisdiction to try the case, on 23.5.1996. While that petition was pending the 1st respondent-complainant filed C.M.P. No. 2037/9.6 before the Chief Judicial Magistrate''s Court, Alappuzha seeking to transfer two case from J.F.C.M.''s Court-II, Chertliala to J.F.C.M.''s Court-I, Alappuzlia, Tliat petition was dismissed by the C. J.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 26.6.97 returned the complaint for presentation before the proper Court u/s 201 of the Cr.P.C. 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 J.F.C.M.''s Court Rainankari as per the order of the C.J.M., Alappuzlia and the same is renumbered as C.C. 326/98 before that Court on 29.8.1998. The petitioner filed C.M.P. 6629/ 99 before the J.F.C.M.''s Court, Rainankari 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 Is: 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 alias no territorial jurisdiction to take cognizance of the offence alleged in the complaint filed by the 1st respondent again him and. therefore, the complaint re-presented by the 1st respondent before the proper Court after return 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 lime 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 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 time and cognizance of the offence alleged cannot be taken by the 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), where the Supreme Court has observed as follows:

If the plaintiff had filed the suit in the trial Court on March 2.1959, then, certainly the suit would have been within time u/s 4, as that was the proper Court. in which the suit should have been filed. As the Kama! 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 prosecuting with due diligence another civil proceedings against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in 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 Kama! 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 instituted 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. 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 decision 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. Jt that case the plaint was presented before the Senior Subordinate Judge''s Court, Karnal on 2.3.59 since 1.3.59 was a day on which the Court was not open. The suit was subsequently transferred to the Subordinate Judge''s Court, Panipat for ministerial purposes. The Subordinate Judge''s Court, Panipat by order dated 28.10.59 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 29.10.59 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 involving the provisions of Section 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 KIT 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 re-presented to the same Court after making necessary amendments to attract jurisdiction of the Court, the Court-fee paid on the returned plaint cannot be taken into account on its presentation 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 arc applicable to criminal cases coming under the Cr.P.C. Therefore, according to him, as the J.F C.M/s Court-II. Cherthala had no jurisdiction to entertain the complaint and to lake cognizance of the offence, when the complaint was filing of the complaint till its return for presentation before the proper Court on 20.6.97 to save limitation and, therefore, the complaint filed by the petitioner before the Alappuzha Court after return of the complaint froth 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 34(1). Criminal P.C. 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. Criminal P.C. 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)(1), Criminal P.C. to the Court which had dealt with the case up till the date they issued the rule, even though it had no territorial jurisdiction lo try it. is opposed to the rule enunciated in Peary Lal 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 finds that it has no territorial jurisdiction, what the Court should do is to act u/s 201 of the Cr.P.C. lo return the complaint for presentation before the proper Court with an endorsement lo that effect.

In the decision in Itty Mathew v. Rnmani, 1998 (1) KLT 851 I have also staled that if it was found that the Court had no jurisdiction to take cognizance of the offence, the complaint should have been returned for presentation to the proper Court with an endorsement to that effect following the procedure provided u/s 201 of the Cr. P.C.

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 as 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 enquiries and trials''. That chapter contains provisions regarding the place where the enquiry and trial arc lo 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 S. 179 says that when a act is an offence by reason of anything which has been done and of a consequence which alias ensued, the place of enquiry mid trial can as well be in a Court within whose local jurisdiction such thing his been done or such consequence has ensued''. It cannot be overlooked that the said provisions do not trammel the powers of any Court to lake cognizance of the offence.

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The only restriction contained in Section IW is that the power lo take cognizance is ''subject to the provisions of this Chapter". There are Sections in Chapter XIV most of which contain one or other restriction imposed on I he 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 (IS9HJ the commencing words were like these: ''Except as hereinafter provided". Those words arc now replaced by ''Subject to the provisions of this chapter". Therefore, when there is nothing in Chap. XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the of lance 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 arc incorporated for restricting the power of taking cognizance of offences falling under such Acts. But such provisions arc protected by non-obstinate 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 t hat 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.

The above observations made by the Supreme Court is a complete answer lo the contention raised by the petitioner that since the Chcrthala 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 (lie complaint by the Chcrthala Court for want of territorial jurisdictions and for presentation before the proper Court by order dated 20.6.97 is barred by time. Therefore, in view of the fact that the Chcrthala Court was competent to entertain the complaint and to take cognizance of I lie offence on filing of the complaint before that Court, ever though that Court had no territorial jurisdiction to try the case, the re-presentation of the complaint on the return of the same by the Chcrthala Court for presentation before the proper Court u/s 201 of the Cr.P.C. is perfectly legal and valid.

The petitioner had. no case that cither 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 Chcrthala 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 tilts Court in Kunhimuhammed v. Khiadeeja, 1995( I) KLT 350 to the effect that the period of limitation for filing complaint alleging offence punishable u/s 1.18 of the Negotiable Instruments Act can neither be extended u/s 473 of the Cr.P.C. 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 Conn. Cherthala before the J.F.CM.''s Court, Alappuzha is barred by lime, since the J.F.C.M.''s Court. Cherthata 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 CM.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.