9911796707
TMI Blog2013 (11) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... ate after recording of the presummoning evidence issued summons on the accused under Section 204 Cr.P.C. The accusedrespondents 1, 2 & 3 then filed application under Section 201 Cr.P.C. for return of complaint for want of jurisdiction. They alleged that the entire transaction took place at New Delhi and only the legal notice was issued from Mumbai and hence the learned Magistrate has no jurisdiction to try and entertain the complaint. A similar application was filed by the accused in CC No.3286/SS/2008. Thereafter, the learned Magistrate by order dated 5th January, 2010 allowed the application under Section 201 Cr.P.C. and returned the complaint for want of jurisdiction. A similar order was passed by the learned Magistrate in CC No.3286/SS/2008. 3. Being aggrieved, the appellantcomplainant filed Criminal Revision Applications Nos.301 & 302 of 2010 before the Sessions Court, Greater Bombay. Learned Sessions Judge by the judgment and order dated 2nd November, 2011 allowed the criminal revision applications and set aside the orders of learned Magistrate and the matter was remitted back to the Magistrate. However, at the instance of Respondent Nos.1, 2 & 3 the order passed by the Sess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provisions of the Cr.P.C. as discussed hereunder: Chapter XV of Cr.P.C. relates to complaints to the Magistrates whereas Chapter XVI relates to commencement of proceedings before the Magistrates. 10. Section 200 of Cr.P.C. relates to examination of complaint. A Magsitrate taking cognizance of an offence on complaint is required to examine the complaint and both the complainant and witness present, if any. On such examination of the complaint and the witness, if the Magistrate is of the opinion that there is no ground for proceeding, he has to dismiss the complaint under Section 203 Cr.P.C. 11. Section 201 Cr.P.C. lays down the procedure to be followed by the Magistrate not competent to take cognizance of the offence. If the complaint is made to a Magistrate who is not competent to take cognizance of the complaint he shall return the written complaint for its presentation before a proper court and if the complaint is not in writing, direct the complainant to move before the proper court. 12. Section 202 contemplates "postponement of issue of process" on receipt of a complaint in the circumstances mentioned therein. If the Magistrate is of the opinion that there is no su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code." 16. Section 201 Cr.P.C., as noticed earlier, can be applied immediately on receipt of a complaint, if the Magistrate is not competent to take cognizance of the offence. Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 Cr.P.C., there is no question of going back following the procedure under Section 201 Cr.P.C. In absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summon in exercise of power under Section 201 Cr.P.C. The first question is thus answered in negative and in favour of the appellant. 17. The question concerning the jurisdiction of Magistrate to issue summons fell for consideration before this Court in M/s. Escorts Limited vs. Rama Mukherjee(Criminal Appeal No.1457 of 2013), 2013 (11) Scale 487. In the said case the Court noticed the earlier decision in K. Bhaskaran vs. Shankaran Vaidhyam Balan & Anr., (1999) 7 SCC 510. In the light of the language used in Section 138 of the Act, the Court found five components in Section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truments Act, 1881 before the Chief Judicial Magistrate, Sopore. The respondent sought dismissal of the complaint on the ground that the Chief Judicial Magistrate had no territorial jurisdiction to entertain the complaint. By order dated 29th November, 2011, the learned Chief Judicial Magistrate, Sopore, however, held that he had the jurisdiction to entertain the complaint. Aggrieved, the appellant filed Criminal Miscellaneous Petition No. 431 of 2011 under Section 561A of the Jammu and Kashmir Criminal Procedure Code and by the impugned order dated 2nd June, 2012, the High Court quashed the complaint saying that the Court at Sopore had no jurisdiction to receive and entertain the complaint. 4. We have heard learned counsel for the parties and we find that in K.Bhaskaran v. Sankaran Vidyabalan and Another, (1999) 7 SCC 510, this Court had the occasion to consider as to which Court would have the jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act and in paras 14, 15 and 16 of the judgment in the aforesaid case held as under: " 14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint. 6. Learned counsel for the respondent, however, relied on the decision of this Court in Harman Electronics Private Limited and Another v. National Panasonic India Private Limite,d, (2009) 1 SCC 720, to submit that the Court at Shopian would have the territorial jurisdiction. We have perused the aforesaid decision of this Court in Harman Electronics Private Limited (Supra) and we find on a reading of paragraphs 11 and 12 of the judgment in the aforesaid case that in that case the issue was as to whether sending of a notice from Delhi itself would give rise to a cause of action for taking cognizance of a case under Section 138 of the Negotiable Instruments Act when the parties had been carrying on business at Chandigarh, the Head Office of the respondentcomplainant was at Delhi but it had a branch at Chandigarh and all the transactions were carried out only from Chandigarh. On these facts, this Court held that Delhi from where the notice under Section 138 of the Negotiable Instruments Act was issued by the respondent would not have had jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act. This question does not arise in the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
