IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 1433 of 2007()
1. MEENAKSHI, D/O KUTTY,
... Petitioner
Vs
1. UDAYAKUMAR, S/O VISWAMBARAN,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.P.SREEKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :27/09/2007
O R D E R
V. RAMKUMAR, J. 'C.R.'
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Crl. R.P. No. 1433 OF 2007 D
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Dated this the 27th day of September, 2007
O R D E R
The revision petitioner, who is the complainant in
S.T.No.143/06 on the file of JFCM-II, Haripad, challenges the
order dated 5.2.07 passed by the said Magistrate returning the
complaint presumably under section 201 Cr.P.C. for presenting a
same before the proper court having jurisdiction within two weeks.
2. The above private complaint was filed against the first
respondent accused alleging the commission of an offence
punishable under section 138 of the Negotiable Instruments Act in
respect of a cheque bearing No.509004 drawn on the Pallickal
Branch of the State Bank of India for a sum of Rs.1,00,000/-
allegedly issued by the accused to discharge his liability towards a
loan said to have been availed by him from the revision
petitioner/complainant.
3. The learned Magistrate took cognizance of the offence
and recorded the sworn statement of the complainant and took the
case on file as S.T.No.143/2006. On receipt of summons, the
accused entered appearance. The trial of the case was later on
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commenced. After the evidence in the case was over, the accused
was examined under section 313 Cr.P.C. and the case was posted
for arguments when the first respondent accused, for the first time,
raised a contention that the said Magistrate lacks territorial
jurisdiction to entertain and try the complaint since the place where
the revision petitioner complainant is residing and the place where
the cheque was presented and the place where the accused is
residing are not within the local limits of the JFCM-II, Haripad. The
objection regarding jurisdiction was raised on the basis that merely
because the place of issuance of notice to the accused was within
the local limits of the Haripad court would not clothe that court to
entertain and try the case. Admittedly, the statutory notice was
issued from a place within the local limits of the jurisdiction the
JFCM-II, Haripad.
4. The learned Magistrate relying on the decision
reported in Ahammedkutty Haji Vs. State of Kerala [2007 (1)
KLT 638] and Hariharaputhra Sharma Vs. State of Kerala [2003
(8) KLT 875] took the view that the decision of the Apex court in
K.Bhaskaran Vs. Sakaran Vaidhyan Balan and another [1999
(7) SCC 510] had been distinguished in the later decisions of this
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court and accordingly came to the conclusion that since both the
accused as well as the complainant are residing outside the
jurisdiction of the court below and the cheque was presented as
well as dishonoured at places outside the local limits of the court
below and the drawee bank was also located beyond the limits of
the court below, that court had no territorial jurisdiction to entertain
the complaint merely because the lawyer who issued the statutory
notice had his office at Haripad within the local limits of the court
below. Accordingly, the complaint was returned with a direction to
present it before the proper court having jurisdiction. It is the said
order which is assailed by the revision petitioner.
5. Eventhough the first respondent accused was duly
served, he has not chosen to enter appearance or oppose this
revision.
6. First of all, going by the decision of the Apex court in
Bhaskaran’s case, if the giving of notice in writing to the drawer
of the cheque demanding payment took place within the local
limits of the jurisdiction of the court when the complaint was filed,
then that court can entertain and try the complaint. Even
assuming that the court below did not possess the territorial
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jurisdiction to entertain the complaint for the reasons stated by that
court, it is pertinent to note that the objection regarding territorial
jurisdiction was raised only at the fag end of the trial and that too
for the first time when the arguments were heard. Eventhough
there is no provision in Cr.P.C. analogous to one contained in
section 21 of the Code of Civil Procedure, the preponderance of
judicial opinion is to the effect that if an objection regarding
territorial jurisdiction has not been raised at the earliest
opportunity, then it will not be entertained by the court. The
position is almost analogous to what is obtained under section 21
C.P.C. In Ramanujan Nair Vs. Sarojini [1970 KLT 645] the
question arose before the trial court as to whether it had territorial
jurisdiction under section 177 Cr.P.C. to entertain the complaint.
The objection regarding jurisdiction was raised only at the fag end
of the trial. The accused did not raise the objection regarding
want of territorial jurisdiction until the entire prosecution evidence
was over. This is what the Division Bench observed in that
decision:-
“4. S.177 of the Code of Criminal
Procedure provides that every offence shall
ordinarily be inquired into and tried by a court
Crl.R.P.No.1433/07
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offence was committed. The contention now is
that the second marriage, the offence in the
present case, was committed within the local
limits of the Quilon court and since the complaint
was filed in the Trivandrum court, the latter court
has no territorial jurisdiction to try the offence.
The Supreme Court has said in Narumal’s case
that the word ‘ordinarily’ in S.177 of the Code of
Criminal Procedure means “except where
provided otherwise in the Code”. From this it is
contended by the counsel of the petitioner that
since there is no other provision contra in the
Code or even in any other law the proper court
having jurisdiction to try the case is the court
which should ordinarily try the case, namely, the
court at Quilon. In the other decision of the
Supreme Court the salutary principle behind
S.177 is pointed out. The Supreme Court has
pointed out that the jurisdiction of courts for trial
of offences is of two kinds, one regarding the
power of the courts to try particular kinds of
offences and the other what is called territorial
jurisdiction. The Supreme Court has also
pointed out that the former type of jurisdiction
goes to the root of the matter, and if a court not
empowered to try a particular offence does try it,
the entire trial is void, and that such importance
is not attached to lack of territorial jurisdiction.
The Supreme Court has pointed out further that
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territorial jurisdiction is “a matter of convenience,
keeping in mind the administrative point of view
with respect to the work of a particular court, the
convenience of the accused who will have to
meet the charge levelled against him and the
convenience of the witnesses who have to
appear before the court”. Thus the Supreme
Court has pointed out, S.177 lays down a rule
which does not go to the root of the matter and
which does not make the trial by a court having
no territorial jurisdiction a nullity. It is not as if
the Additional First Class Magistrate’s Court at
Trivandrum is lacking in jurisdiction to try a case
under S.494 of the Penal Code: the lack of
jurisdiction is only because the alleged second
marriage is said to have taken place outside its
territorial jurisdiction. In other words, the
Trivandrum court has no lack of inherent
jurisdiction to try an offence of the kind, but its
lack of jurisdiction is only lack of territorial
jurisdiction.
5. In the special circumstances we have
already pointed out at the commencement of
this judgment, namely, that the petitioner did not
take the objection of lack of territorial jurisdiction
until the entire prosecution evidence was over
and even until four of the five accused persons
were discharged, we feel that this case may be
taken out of the expression “ordinarily” in S.177
of the Code of Criminal Procedure. The
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petitioner has not even alleged that he is
prejudiced by the trial being continued before
the court at Trivandrum: in fact, the
circumstances pointed out at the bar indicate
that the trial of the case in the Trivandrum court
might probably be more convenient to the
petitioner.”
7. The court below was not justified in entertaining the
objection regarding territorial jurisdiction at the belated stage as
aforesaid especially when no prejudice was pleaded or proved.
The impugned order dated 5.2.07 is accordingly set aside and
JFCM-II, Haripad is directed to proceed with S.T.No.143/06 and
dispose it of in accordance with law.
This revision is allowed as above.
(V. RAMKUMAR, JUDGE)
aks