Magistrate has erred in issuing process/summons to the petitioner/accused even before conducting enquiry on the complaint of the 1st respondent-complainant as provided under the amended sub- section (1) of Section 202 of Cr.P.C. It is also contended by the learned counsel that no part of cause of action has arisen within the jurisdiction of the Court of Judicial First Class Magistrate, Kamalapuram and therefore, very entertaining of the complaint by the Judicial First Class Magistrate, Kamalapuram is without jurisdiction and therefore, continuance of proceedings against the petitioner-accused in C.C.No.16 of 2010 amounts to abuse of process of Court.?= in the complaint that the petitioner/accused borrowed Rs.4,50,000/- on 05.4.2009 promising to repay the same with interest and issued cheque bearing No.234540 for Rs.4,50,000/- on the same day towards discharge of the pro note debt. It is the assertion of the 1st respondent-complainant that the pro note as well as the cheque are issued at Yerraguntla which is within the jurisdiction of the Court of Judicial First Class Magistrate, at Kamalapuram. 9. If it is the contention of the petitioner/accused that cheque has not been issued by him at Yerraguntla, it can be said that this issue is a triable issue, which the trial Court has to adjudicate upon basing on the evidence proposed to be adduced by the parties. Therefore, the contention advanced by the petitioner/accused that the proceeding in C.C.No.16 of 2010 are liable to be quashed on the ground that the same are instituted in a Court not having jurisdiction, cannot be countenanced.

Lakshmi Narasimha (Photo credit: Mithun Kundu)

THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Petition No.6113 of 2010

11-09-2012

V.Suresh Reddy S/o Rosi Reddy, Jubilee Hills, Hyderabad

E.Surya Prakash S/o Lakshman Goud and State

Counsel for the Petitioner: M/s. Vinesh Raj

Counsel for Respondent No.1: K.Sudhakar 
Counsel for Respondent No.2: Public Prosecutor

<Gist:

>Head Note:

? Cases referred:
2010-CRIMES-4-50 
2010-LAWS (BOM)-1-67 
Crl. Petition No.376 of 2012 decided on 21.02.2012
Crl .Petition No.12066 of 2011 decided on 25.11.2011
(1999)7 SCC 510

ORDER:

This Criminal Petition has been taken out under Section 482 Cr.P.C by
petitioner-V.Suresh Reddy, accused in C.C.No.16 of 2010 on the file of Junior
Civil Judge-cum-Judicial First Class Magistrate, Kamalapuram, Kadapa District to
quash the proceeding therein.

2. 1st respondent-E.Surya Prakash Goud filed a complaint against the
petitioner/accused in the Court of Junior Civil Judge-cum-Judicial First Class
Magistrate, Kamalapuram alleging inter alia that the petitioner/accused
borrowed an amount of Rs.4,50,000/- from him on 05.4.2009 agreeing to repay the
same with interest and executed a promissory note in his favour. On the same
day, the petitioner/accused issued a cheque bearing No.234540 drawn on Andhra 
Bank, Apollo Hospital, Jubilee Hills, Hyderabad for Rs.4,50,000/- towards
discharge of the pronote debt. He presented the cheque on 18.09.2009 for
collection through State Bank of Hyderabad, Yerraguntla village, Kadapa
District. The cheque came to be returned on 23.9.2009 on the ground of
`insufficient funds' and he received the intimation from the State Bank of
Hyderabad, Yerraguntla Branch on 05.10.2009. Thereupon, he issued a statutory
notice on 02.11.2009 calling upon the petitioner/accused to pay the amount
covered under the cheque in question. The petitioner/accused received the
notice and issued a reply dated 21.11.2009 disputing his liability to pay the
cheque amount. Since the petitioner/accused failed to pay the cheque amount
despite statutory notice, he renders himself liable for punishment for the
offence under Section 138 of the Negotiable Instruments Act. The learned
Magistrate recorded the sworn statement of the 1st respondent-complainant and
took cognizance of the offence under Section 138 of the Negotiable Instruments
Act and issued summons to the petitioner/accused, by order dated 19.02.2010.
Hence this petition to quash the proceeding in C.C.No.16 of 2010.

3. Heard learned counsel appearing for the petitioner/accused and learned
counsel appearing for the 1st respondent-complainant and perused the material
brought on record.

4. It is contended by the learned counsel appearing for the
petitioner/accused that the learned Magistrate has erred in issuing
process/summons to the petitioner/accused even before conducting enquiry on the
complaint of the 1st respondent-complainant as provided under the amended sub-
section (1) of Section 202 of Cr.P.C. It is also contended by the learned
counsel that no part of cause of action has arisen within the jurisdiction of
the Court of Judicial First Class Magistrate, Kamalapuram and therefore, very
entertaining of the complaint by the Judicial First Class Magistrate,
Kamalapuram is without jurisdiction and therefore, continuance of proceedings
against the petitioner-accused in C.C.No.16 of 2010 amounts to abuse of process
of Court. In support of his contentions, reliance has been placed on the
judgment of High Court of Punjab and Haryana in Neeta Sinha v. P.S.Raj Steels
Pvt. Ltd.1, High Court of Bombay in S.C.Mathur v. Elektronik Lab2 and the
decisions of this Court in N.Santhi Lakshmi v. State of A.P., rep. by its Public
Prosecutor3 and Dr.G.Vara Prasad v. State of A.P., rep. by it's Public
Prosecutor4.

5. Learned counsel appearing for the 1st respondent-complainant submits that
the petitioner/accused issued cheque at Yerraguntla village on the date on
which he executed promissory note in favour of the 1st respondent-complainant
and therefore, part of cause of action has arisen within the jurisdiction of
Judicial First Class Magistrate Court, Kamalapuram. It is also contended by him
that the learned Magistrate took cognizance of the offence after considering
the evidence adduced and also the documents placed on record by the 1st
respondent-complainant and once cognizance is taken, no further inquiry is
contemplated before issuance of summons to the petitioner/accused. 
6. Section 177 of the Code of Criminal Procedure determines the jurisdiction
of the Court trying the matter. The court ordinarily will have the jurisdiction
only where the offence has been committed. The provisions of Sections 178 and
179 of the Code of Criminal Procedure are exceptions to Section 177. These
provisions presuppose that all offences are local. Therefore, the place where
an offence has been committed plays an important role. In terms of Section 177
of the Criminal Procedure Code, it is the place where the offence is
committed. In essence, it is the cause of action for initiation of the
proceedings against the accused. A court derives a jurisdiction only when the
cause of action arises within its jurisdiction. A distinction must be borne in
mind between ingredient of an offence and commission of a part of the offence.

7. There are five essential ingredients of the offence under Section 138 of
the N.I. Act as held by the Supreme Court in the case of K.Bhaskaran v. Sankaran
Vaidhyan Balan5 and they are: 1) drawing of the cheque; 2) presentation of the
cheque to the bank; (3) returning the cheque unpaid by the drawee bank; (4)
giving notice in writing to the drawer of the cheque demanding payment of the
cheque amount; (5) failure of the drawer to make payment within 15 days of the
receipt of the notice.

8. The 1st respondent-complainant stated in the complaint that the
petitioner/accused borrowed Rs.4,50,000/- on 05.4.2009 promising to repay the
same with interest and issued cheque bearing No.234540 for Rs.4,50,000/- on the
same day towards discharge of the pro note debt. It is the assertion of the 1st
respondent-complainant that the pro note as well as the cheque are issued at
Yerraguntla which is within the jurisdiction of the Court of Judicial First
Class Magistrate, at Kamalapuram.

9. If it is the contention of the petitioner/accused that cheque has not been
issued by him at Yerraguntla, it can be said that this issue is a triable issue,
which the trial Court has to adjudicate upon basing on the evidence proposed to
be adduced by the parties. Therefore, the contention advanced by the
petitioner/accused that the proceeding in C.C.No.16 of 2010 are liable to be
quashed on the ground that the same are instituted in a Court not having
jurisdiction, cannot be countenanced.

10. The next point urged by the petitioner/accused is that issuance of process
is not in accordance with the provisions of Section 202 Cr.P.C. For better
appreciation, I may refer Section 202 Cr.P.C., which reads as hereunder:-
"Postponement of issue of process:- (1) Any Magistrate, on receipt of a
complaint of an offence of which he is authorized to take cognizance, or which
has been made over to him under Section 192, may, if he thinks fit, and shall,
in a case where the accused is residing at a place beyond the area in which
he exercises his jurisdiction, postpone the issue of process against the
accused, and either inquire into the case himself or direct an investigation
to be made by a police officer, or by such other person as he thinks fit, for
the purpose of deciding whether or not there is sufficient ground for
proceeding:
Provided that no such direction for investigation shall be made---
(a) where it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant
and the witnesses present (if any) have been examined on oath under Section
200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit,
take evidence of witnesses on oath;
Provided that if it appears to the Magistrate that the offence complained
of is triable exclusively by the Court of Session, he shall call upon the
complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a
police officer, he shall have for the investigation all the powers conferred by
this Code on an officer in charge of a police station, except the power to
arrest without warrant. "

11. The scope of enquiry under Section 202 is extremely limited only to the
ascertainment of the truth or falsehood of the allegations in the complaint (i)
on the material placed by the complainant before the Court (ii) for the limited
purpose of finding out whether a prima facie case for issue of process has been
made out and for (iii) deciding the question purely from the point of view of
the complainant without at all adverting to any defence that the accused may
have.

12. The procedure to be adopted when a complaint is lodged, as laid down in
Sections 200 to 203 is:-
(1) Under Section 200 it is incumbent on the Magistrate taking cognizance on a
complaint to examine upon oath the complainant and his witnesses present if any,
at sufficient length to satisfy himself as to the veracity of the complainant
and as to any points on which he is silent, or on which there by may be
doubt. The object is to test whether the allegations make out a prima facie
case to enable him to issue process.
(2) If he finds no prima facie reason to distrust and the facts constitute an
offence under the law, it is incumbent to issue process forth-with.
(3) If he distrusts the complainant altogether or if no offence is made out,
it is equally his duty to dismiss the complaint (S.203).
(4) It is only when his distrust is not sufficiently strong to warrant action
upon it that it is open to him to postpone issue of process pending further
inquiry under S.202. He can then inquire himself or direct an investigation to
be made by a police-officer or by any private person he thinks fit.

13. A reading of the above-referred provisions indicate that further
investigation or enquiry is to be taken up on receiving a complaint, and
issuance of process, in case the accused is residing at a place beyond the area
in which the Magistrate exercises jurisdiction, shall be postponed.

14. In the case on hand, the learned Magistrate considered the evidence
adduced and the documents placed on record by the 1st respondent-complainant and 
proceeded to take cognizance of the case for the offence under Section 138 of
N.I.Act. Had the learned Magistrate decided to hold further inquiry being not
satisfied with the material placed on record, summon ought not have been issued
to the petitioner/accused since the petitioner/accused resides beyond his
jurisdiction. It is evident from the record that the learned Magistrate
considered the ocular and documentary evidence adduced by the 1st respondent- 
complainant and proceeded to take cognizance of the case. Therefore, there is
no illegality or irregularity in issuing summon to the petitioner/accused after
taking cognizance of the offence punishable under Section 138 of the Negotiable
Instruments Act. In that view of the matter, I find that the petitioner failed
to make out valid ground to quash the proceedings in C.C.No.16 of 2010 on the
file of Junior Civil Judge-cum-Judicial First Class Magistrate, Kamalapuram,
Kadapa District.

15. Accordingly, the Criminal Petition is dismissed. Interim order granted on
02.07.2010 shall stand vacated.
_____________________ 
B.SESHASAYANA REDDY, J 
Dt.11.09.2012