Case Note & Summary
The petitioner, Sagar Ravan Pujari, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Vasuda Nandan Sarmalkar, before the Metropolitan Magistrate, 21st Court, Bandra. The Magistrate issued process against the accused. The accused filed a revision before the Additional Sessions Judge, Brihan Mumbai, challenging the order of process. The revision memo did not raise the ground of lack of territorial jurisdiction. However, the Additional Sessions Judge, after hearing, set aside the order of process on the ground that the Metropolitan Magistrate, Bandra, had no territorial jurisdiction to entertain the complaint, and directed the complaint to be returned to the complainant for filing before the JMFC, Palghar. The complainant challenged this order before the Bombay High Court. The High Court held that the revisional court could not suo motu consider an issue not raised by the applicant, especially when it was not apparent from the record and required factual inquiry. The court noted that the issue of territorial jurisdiction under Section 138 of the NI Act is a mixed question of law and fact, and the complainant was not given an opportunity to address it. The High Court set aside the revisional order and restored the Magistrate's order issuing process, directing the trial to proceed on merits.
Headnote
A) Criminal Procedure Code - Revisional Jurisdiction - Suo Motu Powers - The revisional court cannot suo motu set aside an order of process on a ground not raised by the applicant, especially when the ground is not apparent from the record and requires factual inquiry. The court held that the Additional Sessions Judge exceeded his jurisdiction by considering the issue of territorial jurisdiction which was not taken in the revision memo. (Paras 6-8)
B) Negotiable Instruments Act, 1881 - Territorial Jurisdiction - Section 138 - The issue of territorial jurisdiction in a complaint under Section 138 of the NI Act is a mixed question of law and fact and cannot be decided without giving the complainant an opportunity to be heard on that specific point. The court held that the revisional court's order directing return of the complaint for filing in another court was unsustainable. (Paras 6-8)
Issue of Consideration
Whether the Additional Sessions Judge, in revisional jurisdiction, could set aside the order of process on the ground of lack of territorial jurisdiction when such ground was not raised by the accused in the revision application.
Final Decision
The High Court allowed the writ petition, set aside the order of the Additional Sessions Judge dated 6.1.2012, and restored the order of the Metropolitan Magistrate issuing process. The trial court was directed to proceed with the complaint on its own merits.
Law Points
- Territorial jurisdiction
- Section 138 Negotiable Instruments Act
- 1881
- revisional jurisdiction
- suo motu powers
- order of process
- criminal revision
Case Details
2013 LawText (BOM) (06) 74
Criminal Writ Petition No.318 of 2012
Mr. Kunal Bhanage i/b. Mr. Nilufer B. Gadiwalla for Petitioner, Mr. Chetan Akerkar for Respondent No.1, Mrs. G.P. Mulelar APP for State
Vasuda Nandan Sarmalkar & Anr.
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Nature of Litigation
Criminal writ petition challenging the revisional court's order setting aside process in a complaint under Section 138 of the Negotiable Instruments Act, 1881 on the ground of lack of territorial jurisdiction.
Remedy Sought
The petitioner/complainant sought quashing of the revisional court's order and restoration of the Magistrate's order issuing process.
Filing Reason
The Additional Sessions Judge set aside the order of process on the ground of territorial jurisdiction, which was not raised by the accused in the revision application.
Previous Decisions
The Metropolitan Magistrate, 21st Court, Bandra issued process against the accused. The Additional Sessions Judge, by order dated 6.1.2012, set aside the process and directed return of the complaint for filing before JMFC, Palghar.
Issues
Whether the revisional court could suo motu consider the issue of territorial jurisdiction when not raised by the accused in the revision memo.
Whether the order of the Additional Sessions Judge setting aside process on the ground of lack of territorial jurisdiction was sustainable.
Submissions/Arguments
Petitioner's counsel argued that the point of territorial jurisdiction was never raised before the revisional court and it was not open for the court to consider it suo motu.
Respondent's counsel submitted that though not taken in the revision memo, the point was orally argued before the Additional Sessions Judge.
Ratio Decidendi
A revisional court cannot suo motu set aside an order of process on a ground not raised by the applicant, especially when the ground is not apparent from the record and requires factual inquiry. The issue of territorial jurisdiction under Section 138 of the NI Act is a mixed question of law and fact and cannot be decided without giving the complainant an opportunity to be heard on that specific point.
Judgment Excerpts
The main contention advanced by the learned counsel for the complainant... is that the point of territorial jurisdiction was never raised before the revisional court.
He submitted that it was, therefore, not open for the revisional court to have considered the issue of territorial jurisdiction, which had not been raised by the accused.
Procedural History
The petitioner filed a complaint under Section 138 of the NI Act before the Metropolitan Magistrate, 21st Court, Bandra. The Magistrate issued process. The accused filed a revision before the Additional Sessions Judge, who set aside the process on the ground of lack of territorial jurisdiction. The petitioner then filed the present writ petition before the Bombay High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: Section 138
- Code of Criminal Procedure, 1973:
