JOY Vs. STATE OF KERALA

JUDGEMENT

(1.) The complainant in C.M.P.No. 1716/2003 on the file of the Judicial Magistrate of the First Class, Pala is the revision petitioner. He preferred the complaint against the second respondent for prosecuting him under S. 138 of the Negotiable Instruments Act. The learned Magistrate by the impugned order dated 22.10.2003 dismissed the complaint with the following observations:

(2.) The learned counsel for the revision petitioner took me through the averments in the complaint and the affidavit accompanying the complaint. Going by the averments in the complaint as well as in the affidavit filed in support of the complaint, I am convinced that there is specific mention that the transaction in dispute occurred at Milk Bar Hotel at Pala, which is within the territorial jurisdiction of the Trial Court.

(3.) In the above circumstance, I find that the transaction has taken place within the territorial jurisdiction of the Magistrate, before whom the complaint was filed. When the pleadings in the complaint and the averments in the affidavit in support of the complaint specifically aver that the transaction in dispute occurred within the jurisdiction of the court before whom the complaint was filed, the Trial Court should have given reliance to such averments and should have taken cognizance. It should not have insisted the complainant to examine witness and give further proof in respect of the place where the cause of action arose, regarding which there is specific pleading in the complaint and averments in the affidavit. In the light of the pleadings in the complaint and averments in the affidavit, dismissing the complaint at the pre-cognizance stage, stating that no witness was examined to prove that the transaction occurred within the jurisdiction of the court is a hyper technical approach resulting denial of justice. The learned Magistrate should have given due reliance to the pleadings in the complaint and the averments in the affidavit and shall have taken cognizance. Contrary order is illegal and unsustainable. Therefore, the order impugned is set aside and the matter is remitted back to the Trial Court, which shall dispose the complaint in accordance with law. The revision petitioner shall appear before the Trial Court on 13.9.2010.