Sanjay Ramchandra Shrikande vs The State of Maharashtra

A.M. Thipsay, J.—Rule.

By consent, rule made returnable forthwith.

By consent, heard finally, forthwith.

The petitioner is the sole accused in C.C.No. 484/SS/2011, pending before the Metropolitan Magistrate 6th Court, Mazgaon, Mumbai. The case is in respect of an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ''the N.I. Act'', for short). The respondent no.2, herein is the complainant in the said case.

For the sake of convenience and clarity, the petitioner shall hereinafter be referred to as ''the accused'' and the respondent no.2 as ''the complainant''.

The petitioner had filed a revision application before the Court of Sessions challenging the territorial jurisdiction of the Metropolitan Magistrate 6th Court Mazgaon, Mumbai, to entertain the complaint and try the offence. This revision application was, however, dismissed by the learned Additional Sessions Judge, holding that the learned Metropolitan Magistrate 6th Court Mazgaon, Mumbai had territorial jurisdiction to entertain the complaint, and try the alleged offence. Being aggrieved thereby, the accused has filed the present petition, praying that the present proceedings against him pending vide the said case, be quashed.

It is submitted that the cheque in question was drawn on a bank situate at Pune. It is submitted that the jurisdiction to entertain the complaint in the Court of Metropolitan Magistrate at Mumbai was claimed only on the basis of assertion that the office of the complainant is situate at Mumbai and the amount of cheque was payable at the address of the complainant''s office.

The learned counsel for the petitioner submits that in view of the pronouncement of the Supreme Court of India in the Case of Dashrath Rupsingh Rathod Vs. State of Maharashtra, , it cannot be doubted that the Metropolitan Magistrate 6th Court, Mumbai has no territorial jurisdiction to entertain the complaint and try the offence. In fact, going by the law laid down in the said decision, that ''the Metropolitan Magistrate 6th Court Mazgaon, Mumbai would have no jurisdiction to entertain the complaint and try the offence'', has not been disputed. What is, however, contended by the learned counsel for the complainant is that the proceedings before the Magistrate having travelled beyond the stage contemplated by Section 145(2) of the N.I. Act, were not, now, liable to be transferred to any other Court. In that regard, the learned counsel for the complainant has placed reliance on the observations made by Their Lordships in paragraph 20 of the Judgment in Dashrath Rathods case (Supra).

In view of the contentions advanced, it would be appropriate to reproduce the paragraph 20 of the Judgment in the case of Dashrath Rathod''s case (Supra).

"20 We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various Courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e. applicability to Complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a Court devoid of jurisdiction, this recourse in entirety does not commend itself to use. Consequent on considerable consideration we think it expedient to direct that only those cases where, post the summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments act, 1881, will proceeding continue at that place. To clarify, regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complication, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by us from the Court ordinarily possessing territorial jurisdiction, as now clarified, to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. If such Complaints are filed/refiled within thirty days of their return, the shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred."

(Emphasis supplied)

In the instant case, the challenge to the territorial jurisdiction of the Magistrate was already pending before the Court. Initially, the accused had filed an application for revision in the Court of Sessions, raising such challenge to the territorial jurisdiction. Thereafter, the accused has filed the present petition which has been pending before this Court for quite some time. Though it is not in dispute that these proceedings pending before the Magistrate have travelled beyond the stage contemplated by Section 145(2) of the N.I. Act, when the challenge to the jurisdiction was raised, only the affidavit of evidence of the complainant had been filed and the complainant was not cross examined. No person had been called or had been cross-examined by the Court, till then.

The question is regarding the interpretation of the observations made by Their Lordships in paragraph 20 of the Judgment in case of Dashrath Rathod (Supra). In my opinion, these observations cannot be brought into picture to save cases from being transferred where a challenge to the territorial jurisdiction has already been raised by a party to the proceedings either by way of any application before the trial Court, or by way of a revision application, or an application under Section 482 of the Code or by way of a writ petition, and where such challenge was pending before the Court on the date on which the Apex Court made the pronouncement of law in the case of Dashrath Rathod (Supra).

In my opinion, what the observations in the paragraph no.20 convey, is that in the event of any challenge to the territorial jurisdiction being raised, based on the decision in the Dashrath Rathod''s case, the stage of the matter before the trial Court would be material; and that in such a case, if the proceedings before the trial Court have already advanced beyond the stage contemplated by Section 145(2) of the NI Act, the proceedings will not be liable to be transferred to some other Court. It is significant that Their Lordships have not said that the proceedings would be treated as ''validly pending'' before the concerned Courts, but have said that such proceedings will be ''deemed to have been transferred by Their Lordships'', from the Court ordinarily possessing territorial jurisdiction, as clarified. (by the Judgment in Dashrath Rathod''s case)

In my opinion, these observations are intended to save the proceedings from being transferred to some other Courts only where a challenge to the territorial jurisdiction of the Court would be raised after the decision in Dashrath Rathod''s case (Supra), and on the basis of observations made in the said Judgment. They are not intended to and cannot apply to proceedings where a challenge to the territorial jurisdiction has already been given before the pronouncement in the case of Dashrath Rathod (Supra) and such challenge was pending before a Court of law. Pending challenges must be decided on the basis of the law pronounced in Dashrath Rathod''s case, as the application of law declared by the Supreme Court of India cannot be prospective; and in any case, the possibility of making its application ''prospective'' has clearly been negated by Their Lordships, as can be seen from the observations made in paragraph 20 of the Judgment itself (reproduced above).

In the result, the petition is partly allowed.

The learned Magistrate shall return the complaint to the complainant for filing it before the proper Court.

The Magistrate shall direct the parties to appear before the transferee Court if such Court can be, and is, identified by the complainant before the Magistrate, on a date as may be fixed by him while handing over the complaint to the complainant.

The Petition is disposed of in the aforesaid terms.

Rule made absolute accordingly.