WIPRO LTD Vs. SASI

JUDGEMENT

(1.) The revision Petitioner prosecuted the first Respondent before the Addl. Chief Judicial Magistrate, Ernakulam in C.C. No. 184/03 filed on 16-9-2002, alleging offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance and issued process to the first Respondent. On appearance, he pleaded not guilty and it was adjourned from time to time. On 30-11-2007, the revision Petitioner filed chief affidavit and for cross-examination it was posted to 16-1-2008. Then it was adjourned to 12-2-2008, then to 31-3-2008, again to 23-4-2008. On 23-4-2008, the learned Magistrate addressed the Chief Judicial Magistrate to transfer the case to the file of the Judicial Magistrate of the First Class V. It appears that the case was made over to Judicial Magistrate of the First Class V, Ernakulam under Section 410 Code of Criminal Procedure. Thereafter, the learned Magistrate adjourned the case on various occasions. On 3-12-2008, the learned Magistrate noted that in the light of the decision reported in Santhosh Kumar v. Mohanan, 2008 3 KerLT 461, he has no jurisdiction to try the case. Consequently, by order dated 3-12-2008, the complaint was ordered to be returned to the revision Petitioner by the order impugned. It is assailing the legality, correctness and propriety of that order, this revision petition was filed.

(2.) Going by the complaint it is seen that the complaint was filed before the Additional Chief Judicial Magistrate with a pleading that the revision Petitioner's bank is situated within the jurisdiction of that court. It is not disputed that the location of the bank of the complainant would not confer jurisdiction on a court of law. By the pleadings in the complaint, it is not specific as to where exactly the transaction took place or from which place the cheque was issued by the first Respondent. In the above circumstances, what can be safely concluded is that, the cheque was issued by the first Respondent from his place of business and cheque was dishonoured by the bank situated at his place of business. However, no objection was raised by the first Respondent at any time that the court below had no territorial jurisdiction. It is in that circumstance the trial was started and as part of the trial, the chief affidavit was filed. Since the complaint was pending before the trial court from 16-9-2002 and the trial had started without any objection regarding jurisdiction raised by the first Respondent, the learned Magistrate should not have returned the complaint amidst the trial.

(3.) This Court in Meenakshi v. Udayakumar, 2007 4 KerLT 620 held that, if an objection regarding territorial jurisdiction is not raised at the earliest opportunity, then it shall not be entertained by the court at a later stage. Here, even without any objection by the accused, the court suo motu ordered to return the complaint. The Addl.Chief Judicial Magistrate without caring to look into the pleadings regarding jurisdiction took cognizance and trial was in progress. In such circumstance also, the lower court should not have returned the complaint. The lower court should have borne in mind the principle of the maxim "Actus curiae neminem gravabit"--An act of the court shall prejudice no man. One Magistrate taking cognizance without applying mind on the plea regarding territorial jurisdiction, accused entering appearance not raising dispute regarding territorial jurisdiction, adjourning the case for about six years, recording evidence in part, then asking the Chief Judicial Magistrate to make over the case to Anr. court without disclosing that it is a part heard case, Chief Judicial Magistrate making over the case to Anr. Magistrate, the transferee Magistrate adjourns the case on various occasions and then suo motu returning the complaint stating that the court had no territorial jurisdiction are not only the better interest of the justice but also causes great prejudice to the parties. In the event the revision Petitioner is asked to take back the complaint to file it in the appropriate court, every process has to be taken afresh and then to wait for Anr. five or six years to get it ripe for trial. Suo motu return of complaint, that too, after six years, had in fact caused great prejudice to the revision Petitioner. For that reason also, it may not be appropriate to uphold the order. However, on the basis of the pleadings in the complaint it cannot be said that the cause of action had arisen at Ernakulam.