MUBASHIR MANZOOR BHAT Vs. ROUF JEELANI PARRAY

JUDGEMENT

(1.) This petition under Section 561-A Cr. P. C. calls in question the order dated 18.04.2016 passed by the learned Chief Judicial Magistrate, Srinagar in a complaint case filed for the commission of offence under Section 138 Negotiable Instruments Act, on its transfer to the said court from the court of Judicial Magistrate, 1st Class, Budgam. The impugned order reads as under:

(2.) It may be mentioned here that the complaint had originally been filed before the Judicial Magistrate, 1st Class, Budgam. That court, on recording the statement of the complainant and one of his witnesses, had taken cognizance of the offence under Section 138 of N. I. Act and summoned the accused by order dated 24.07.2014. On appearance of the accused, his statement under Section 242 Cr. P. C. was recorded on 21.10.2014 wherein he admitted to have issued the cheques and identified his signatures thereon. Thereafter, on 20.12014, the accused on the basis of the law laid down by the Supreme Court in Dashrath Rupsingh Rathod v State of Maharashtra, (2014) 9 SCC 129, made an application before the learned Judicial Magistrate seeking return of the complaint to the complainant. That application was dismissed by the learned Judicial Magistrate, Budgam, by order dated 005.2015, on the ground that the judgment of the Supreme Court was prospective in effect and that it laid down that the category of complaint cases where proceedings had gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred from the court originally possessing territorial jurisdiction to the court where it was pending. The learned Magistrate in its aforesaid order further observed that since the complaint had been filed on 24.07.2014 and on the same day the statement of complainant and his witness was recorded, and cognizance was taken, so the judgment was not applicable in the case, and that the court had jurisdiction to decide the case. Rejecting the application filed by the accused, the case was ordered to be put up for evidence of the complainant on 18.05.2015.

(3.) Against the aforesaid order dated 02.05.2015, the accused preferred a petition under Section 561-A Cr. P. C. before this Court, pleading that the learned Judicial Magistrate, Budgam, had no jurisdiction to entertain and try the complaint as the cheques had been allegedly presented before the J & K Bank Ltd, Branch Office, Aircargo, Srinagar, and HDFC Bank Ltd. Baghat, Barzulla, Branch Srinagar. The said petition was disposed of by a Co-ordinate Bench of this Court by order dated 15.09.2015 on the agreement of the learned counsel for the parties that the complaint may be transferred from the files of learned Judicial Magistrate, Budgam, to the court of Chief Judicial Magistrate, Srinagar. The Court, accordingly, ordered transfer of the complaint to the court of learned Chief Judicial Magistrate, Srinagar with liberty to further transfer it to any competent court of jurisdiction at Srinagar. On receipt of the file from the court of Judicial Magistrate, 1st Class, Budgam, the learned Chief Judicial Magistrate, Srinagar passed the order dated 18.04.2016 quoted above.