HELCINO ALEIXO FERNANDES Vs. MILIND MADHUKAR BHENDE

JUDGEMENT

(1.) Admit. Mr. Ramani, the learned Counsel waives notice for the respondent. Heard finally by consent. As the applications involve common question of law and fact they are being disposed of by this common judgment.

(2.) The petitioner herein is the original complainant, who is a businessman residing at Majorda, within the jurisdiction of Judicial Magistrate, First Class at Margao in South Goa District. The respondent happens to be a resident of Mapusa within the jurisdiction of Judicial Magistrate, First Class at Mapusa. The respondent/accused had obtained a hand loan from the petitioner. Towards repayment of the said loan, the respondent had passed in all 9 cheques in favour of the petitioner. All these cheques were drawn on the account of the respondent with H.D.F.C. Bank Ltd at Panaji within the jurisdiction of Judicial Magistrate, First Class, Panaji, North Goa. All these cheques were payable at par at all the branches of H.D.F.C. Bank Ltd. The petitioner presented the cheques for encashment in his account with Corporation Bank at Uttorda, Majorda. All these cheques were dishonoured on account of insufficient funds. Hence, after issuing the statutory notice, the petitioner filed in all nine complaints under Section 138 of the N. I. Act, (the Act, for short) against the respondent, in the Court of Judicial Magistrate, First Class at Margao. The respondent appeared in the complaint cases and filed separate applications contending that no cause of action had arisen within the jurisdiction of the Judicial Magistrate, First Class at Margao and seeking dismissal of the complaints for want of territorial jurisdiction. The learned Judicial Magistrate at Margao dismissed all such applications. That was challenged by the respondent before the learned Sessions Judge, in which the learned Sessions Judge reversed the finding recorded by the Magistrate and while upholding the objection raised by the respondent, directed the return of the complaints for presentation to the proper Court. The learned Sessions Judge did not indicate as to which was the proper court, when the complaints were returned. This was challenged by the petitioner before this Court in Criminal Application No. 84/2009 and others. This Court, by an order dated 22/04/2009, allowed the application and while setting aside the orders passed by the learned Sessions Judge, directed restoration of the complaints before the Judicial Magistrate, First Class at Margao.

(3.) It appears that after trial the learned Magistrate convicted the respondent for an offence punishable under Section 138 of the Act and sentenced him to undergo Simple Imprisonment for six months. The learned Magistrate also directed payment of compensation of various amounts/depending on the amount of the cheques and in default thereof, directed the respondent to undergo Simple Imprisonment to various periods. This was challenged by the respondent before the Sessions Judge at South Goa, Margao. Incidentally, the appeals came before the same learned Sessions Judge, who had earlier upheld the objection to territorial jurisdiction of the learned Magistrate at Margao. Be that as it may, the learned Sessions Judge allowed the Criminal Appeals, on the basis of the judgment of the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah and another v. Manubhai Manjibhai Panchal and another, reported in 2011 ALL SCR 2130. It was found that the complaint cases were tried by two successive Magistrates although they were tried as summary cases. It was held that the entire proceedings stood vitiated under Section 326(3) of the Code of Criminal Procedure for want of de novo trial. It was found that such an irregularity could not have been cured, as it falls under Section 461 of the Code. It was further found, on the basis of the judgment of the Hon'ble Apex Court in the case of Dashrath Rupsingh Rathod v. State of Maharashtra and another, reported in 2014(9) SCC 129 that the learned Judicial Magistrate, First Class at Margao had no territorial jurisdiction. It was held that as the subject cheques were drawn on H.D.F.C. Bank at Panaji, it is the Court of Judicial Magistrate, First Class at Panaji, which would have territorial jurisdiction. Holding so, the complainant has been relegated to the Court of Judicial Magistrate, First Class at Panaji. Feeling aggrieved, the petitioner is before this Court in this second round of litigation.