MAHINDRA Vs. NITIN

JUDGEMENT

(1.) By this application under Section 482 of the Code of Criminal Procedure, the applicant (original complainant) has prayed for, to quash and set aside the order passed below Exhibit 66 on 21.12.2009 in Summary Criminal Case No.3950/2008 by the learned 23rd Judicial Magistrate First Class and Special Court, Nagpur, under Section 138 of the Negotiable Instruments Act, whereby the learned Trial Magistrate was pleased to direct return of the complaint for to be presented before the Court having jurisdiction. The complainant aggrieved by the said order, preferred this Criminal Application with prayer for to invoke inherent powers, in view of Section 482 of the Code of Criminal Procedure.

(2.) The facts, which appear, briefly are as under:

(3.) The learned Advocate for the applicant submitted that the complainant was to recover loan amount from the accused given to him for purchase of vehicle. The respondent accused failed to make repayments as agreed and ultimately the accused had issued cheque bearing no.0183876 in favour of the complainant for an amount of Rs. 1,60,305/. The cheque was drawn on Yavatmal Gramin Bank on 20th September 2007 in discharge of his legal liability. The said cheque was presented for encashment at IDBI Bank Sitabuldi, Nagpur but it was returned dishonoured with return memo dated 18.1.2008 with remark "account closed". Accordingly, demand notice was issued on 25.1.2008 by R.P.A.D. as well as under certificate of posting. The notice sent by R.P.A.D. was returned to the sendor with remark "not claimed" and notice under certificate of posting was served. Thus, on the ground that the accused had failed to comply with the legal notice and to discharge his liability in respect of the dishonour of cheque, the complaint was lodged with learned Trial Magistrate and Special Court under Section 138 of the Negotiable Instruments Act. The learned Magistrate had taken cognizance of the complaint by examining Arifkhan Abdul Waheed Khan, a witness from the bank. The accused had also filed affidavit in lieu of evidence and examined one witness Nitin Vishnupant Thakre. Under these circumstances even written notes of arguments were tendered. Thus, it is submitted that once the learned Trial Judge took cognizance of the complaint in accordance with law, the impugned order to return complaint ought not have been passed. It is further submitted that the learned Trial Judge failed to take into consideration the provisions of Section 178 of the Code of Criminal Procedure, which makes it clear that in case of uncertainty as to in which of several local areas an offence was committed or where an offence was committed partly in one local area and partly in another or where an offence was a continuing one, and continued to be committed in more local areas than one, or where it consists of several acts which may have been done in different local areas then offence may be inquired into or tried by a Court having jurisdiction over any of such local areas. Furthermore; under Section 179 of the Code of Criminal Procedure, it is submitted that there is an option provided for the Court taking cognizance of an offence to the effect that when an act is an offence by reason of anything which has been done and by reason of consequence which has ensued, the offence may be inquired into or tried by a Court within whose legal jurisdiction such thing has been done or such consequence has ensued. The learned Advocate for the applicant submitted that in view of this clear provisions as to jurisdiction of the Criminal Court in inquiry and trial, the learned Trial Judge ought not to have returned the complaint, more so when cognizance of the complaint was already taken by allowing the complainant to lead evidence in support of the complaint and by allowing the accused to lead evidence. Therefore, it is submitted that the impugned order is contrary to law and ought to be quashed and set aside in exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure.