MUHAMMAD SABAH Vs. MAHAMMAD ISHAQ

JUDGEMENT

(1.) The appellant is the complainant in C.C.No.3016 of 2015, which was pending with the court of Special Judicial First Class Magistrate (NI Act cases), Kozhikode for offence punishable under Section 138 of the Negotiable Instruments Act, alleged against the 1st respondent herein, who was arrayed as accused therein. The appellant is aggrieved by the impugned order rendered on 19.11.2016 by the said trial court whereby the C.C.No.3016 of 2015 has been dismissed on the ground of the absence of the complainant and consequently the accused has been acquitted under Section 256(1) of the Code of Criminal Procedure.

(2.) The complaint arose out of the dishonour of two cheques totaling for an amount of 5,12,000/- issued by the 1st respondent accused in favour of the appellant/complainant and the complainant had presented the cheque for collection through the ICICI branch at GKW building, Pottammal Junction, Mavoor Road, Kozhikode, which is said to be located within the territorial limits of the Kozhikode Medical College police station. It is averred by the appellant that the Magistrate, who is having exclusive territorial jurisdiction over the Kozhikode Medical College police station area is the Judicial First Class Magistrate Court, Kunnamangalam. Accordingly, the appellant had initially presented the complaint before the Judicial First Class Magistrate Court, Kunnamangalam. However, in view of the judgment dated 14.08.2014 rendered by three judges in the Apex Court ruling in Dasarath Rupsing Rathod vs. State of Maharashtra and another (2014) 9 SCC 129, the case was transferred by the Judicial First Class Magistrate Court, Kunnamangalam to the court of Judicial First Class Magistrate Court, Perinthalmanna, which is having territorial jurisdiction over the drawee bank. That the appellant had appeared before the Judicial First Class Magistrate Court, Perinthalmanna, and had contested the case as he was given notice of posting by the former court. Later, on with effect from 15.06.2015, the provisions of the Negotiable Instruments Act were amended incorporating Section 142(2) as well as Section 142-A to the parent act, as per the Negotiable Instruments (Amendment) Ordinance 2015, which was later replaced by the subsequent Ordinance as well as thereafter by the Amendment Act enacted in that regard. The amended provisions have come into force on 15.06.2015 and on the basis of the mandate of Section 142(2), the matter was to be transferred to the Magistrate court having territorial jurisdiction over the collection Bank. The Magistrate court having territorial jurisdiction over the collection Bank is the Judicial First Class Magistrate Court, Kunnamangalam (where the complaint was originally filed). However, it is averred that Judicial First Class Magistrate Court at Perinthalmanna had wrongly transferred the case to the Special Judicial First Class Magistrate Court (NI Act cases), Kozhikode.

(3.) Grievance of the petitioner is that the complainant was never given notice regarding the transfer of the case from Perinthalmanna to the court at Kozhikode, and therefore, he was disabled from appearing before the court below. Moreover though his counsel had formal notice, the said counsel was based at Malappuram had problems in frequently travelling to Kozhikode in the prosecution of this case and the said counsel had not informed the complainant about the transfer of the case. Under these circumstances that the appellant was disabled from appearing before the court below. The Magistrate Court at Kozhikode, has now dismissed the complaint and has acquitted the accused under Section 256(1) of the Cr.P.C., on the ground of the absence of the complainant. It is this order that is under challenge in the present appeal.