@JUDGMENTTAG-ORDER
V. Ramkumar, J.@mdashThe revision petitioner, who is the complainant in S.T. No. 143/06 on the file of JFCM-II, Haripad, challenges the order dated 5.2.07 passed by the said Magistrate returning the complaint presumably u/s 201 Cr.P.C. for presenting a same before the proper court having jurisdiction within two weeks.
2. The above private complaint was filed against the first respondent accused alleging the commission of an offence punishable u/s 138 of the Negotiable Instruments Act in respect of a cheque bearing No. 509004 drawn on the Pallickal Branch of the State Bank of India for a sum of Rs. 1,00,000/- allegedly issued by the accused to discharge his liability towards a loan said to have been availed by him from the revision petitioner/complainant.
3. The learned Magistrate took cognizance of the offence and recorded the sworn statement of the complainant and took the case on file as S.T. No. 143/2006. On receipt of summons, the accused entered appearance. The trial of the case was later on commenced. After the evidence in the case was over, the accused was examined u/s 313 Cr.P.C. and the case was posted for arguments when the first respondent accused, for the first time, raised a contention that the said Magistrate lacks territorial jurisdiction to entertain and try the complaint since the place where the revision petitioner complainant is residing and the place where the cheque was presented and the place where the accused is residing are not within the local limits of the JFCM-II, Haripad. The objection regarding jurisdiction was raised on the basis that merely because the place of issuance of notice to the accused was within the local limits of the Haripad court would not clothe that court to entertain and try the case. Admittedly, the statutory notice was issued from a place within the local limits of the jurisdiction the JFCM-II, Haripad.
4. The learned Magistrate relying on the decision reported in Ahammedkutty Haji v. State of Kerala 2007 (1) KLT 638 and Hariharaputhra Sharma v. State of Kerala 2003 (8) KLT 875 took the view that the decision of the Apex court in
5. Eventhough the first respondent accused was duly served, he has not chosen to enter appearance or oppose this revision.
6. First of all, going by the decision of the Apex court in Bhaskaran''s case, if the giving of notice in writing to the drawer of the cheque demanding payment took place within the local limits of the jurisdiction of the court when the complaint was filed, then that court can entertain and try the complaint. Even assuming that the court below did not possess the territorial jurisdiction to entertain the complaint for the reasons stated by that court, it is pertinent to note that the objection regarding territorial jurisdiction was raised only at the fag end of the trial and that too for the first time when the arguments were heard. Eventhough there is no provision in Cr.P.C. analogous to one contained in Section 21 of the Code of Civil Procedure, the preponderance of judicial opinion is to the effect that if an objection regarding territorial jurisdiction has not been raised at the earliest opportunity, then it will not be entertained by the court. The position is almost analogous to what is obtained u/s 21 C.P.C. In Ramanujan Nair v. Sarojini 1970 KLT 645 the question arose before the trial court as to whether it had territorial jurisdiction u/s 177 Cr.P.C. to entertain the complaint. The objection regarding jurisdiction was raised only at the fag end of the trial. The accused did not raise the objection regarding want of territorial jurisdiction until the entire prosecution evidence was over. This is what the Division Bench observed in that decision:
4. Section 177 of the Code of Criminal Procedure provides that every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction the offence was committed. The contention now is that the second marriage, the offence in the present case, was committed within the local limits of the Quilon court and since the complaint was filed in the Trivandrum court, the latter court has no territorial jurisdiction to try the offence. The Supreme Court has said in Narumal''s case that the word ''ordinarily'' in Section 177 of the Code of Criminal Procedure means "except where provided otherwise in the Code". From this it is contended by the counsel of the petitioner that since there is no other provision contra in the Code or even in any other law the proper court having jurisdiction to try the case is the court which should ordinarily try the case, namely, the court at Quilon. In the other decision of the Supreme Court the salutary principle behind Section 177 is pointed out. The Supreme Court has pointed out that the jurisdiction of courts for trial of offences is of two kinds, one regarding the power of the courts to try particular kinds of offences and the other what is called territorial jurisdiction. The Supreme Court has also pointed out that the former type of jurisdiction goes to the root of the matter, and if a court not empowered to try a particular offence does try it, the entire trial is void, and that such importance is not attached to lack of territorial jurisdiction. The Supreme Court has pointed out further that territorial jurisdiction is "a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the court". Thus the Supreme Court has pointed out, Section 177 lays down a rule which does not go to the root of the matter and which does not make the trial by a court having no territorial jurisdiction a nullity. It is not as if the Additional First Class Magistrate''s Court at Trivandrum is lacking in jurisdiction to try a case u/s 494 of the Penal Code: the lack of jurisdiction is only because the alleged second marriage is said to have taken place outside its territorial jurisdiction. In other words, the Trivandrum court has no lack of inherent jurisdiction to try an offence of the kind, but its lack of jurisdiction is only lack of territorial jurisdiction.
5. In the special circumstances we have already pointed out at the commencement of this judgment, namely, that the petitioner did not take the objection of lack of territorial jurisdiction until the entire prosecution evidence was over and even until four of the five accused persons were discharged, we feel that this case may be taken out of the expression "ordinarily" in Section 177 of the Code of Criminal Procedure. The petitioner has not even alleged that he is prejudiced by the trial being continued before the court at Trivandrum: in fact, the circumstances pointed out at the bar indicate that the trial of the case in the Trivandrum court might probably be more convenient to the petitioner.
7. The court below was not justified in entertaining the objection regarding territorial jurisdiction at the belated stage as aforesaid especially when no prejudice was pleaded or proved. The impugned order dated 5.2.07 is accordingly set aside and JFCM-II, Haripad is directed to proceed with S.T. No. 143/06 and dispose it of in accordance with law.
This revision is allowed as above.
